1. Appeal under Section 129A of the Customs Act, 1962, praying that in the circumstances stated therein, the Tribunal will be pleased to set aside the order No. C: 3/2415/1981 dated 17.7.82 of the Collector of Customs (Appeals), Madras with consequential refund of duty amounting to Rs. 5,332.86 paid by the appellants.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri R. Sashidharan, Advocate for the appellants and upon hearing the arguments of Shri A. Vijayaraghavan, Departmental Representative for the respondent, the Tribunal makes the following: 3. The appellants' claim for refund of duty paid on certain parts of Air Sampling equipments was rejected by the Assistant Collector of Customs, Refunds. Madras vide his Order No. 825/2288/81 dated 5.6.81 as he found that the 'no charge' invoice No. 55324A dated 25.9.79 does not tally with the invoice for original equipment in description and value.
When the matter was agitated before the Collector of Customs (Appeals), Madras, she rejected the same observing that "the items replaced do not seem to tally with the original report in description, nor is the invoice relatable". Before me the advocate for the appellants explains that it is one of the conditions of sale of the equipment that it is for "the proprietary use by the Government of India, State Governments, local or autonomous bodies and enterprises wholly owned or controlled by the Central and State Governments; Not cargo in any way intended for sale or subsequently manufactured state". In the light of this condition and the fact that the supplier had agreed to replace the goods and has in fact done so, it would show that there was genuine short shipment. On the other hand, the Departmental Representative referred to proviso to Section 149 of the Act and pleaded that it is a bar to acceptance of the claim at document now produced was not in existence at the time of or prior to the clearance of the original equipment through Indian Customs.
4. In so far as the difference in the description is concerned the advocate for the appellants points out that two entries "GMW-810 Glass Fibre Filters" and "Motor Brushes" in the replacement invoice tally with the description in the original invoice; in respect of fillers, there is a difference in the value entered in ink by someoneperhaps at the time of clearanceand the value given in the original invoice. But the inked entry being one given, presumably for purposes of assessment at the time of clearance, the invoice itself showing the value as no charge, it should not be held against the appellants as a point of major discrepancy. In regard to the other items referred to in the invoice of replaced goods, he pointed out that they are parts of main equipment and because of this reason find detailed narration in the original invoice. These explanations are plausible ones and 1 would accept the same.
5. Insofar as the objection of the Departmental Representative is concerned, no doubt there is a prohibition in the Act but in practice in suitable cases refunds are being granted on the basis of documentary evidence, not all of which necessarily existed prior to the clearance of the goods through Customs. Further, in the present case when a reference was made by the consignee by his letter dated 16.8.79, the supplier did not accept the shortage straightaway, but wanted to verify his records. It was after about a month that he accepted the shortage and arranged for shipment of the short-packed goods. The verification of the supplier has necessarily to be with reference to the documents which would have been with him prior to the shipment of the goods and hence prior to their clearance through Indian Customs; one could ask for and verify what sort of documents the supplier had to make the statement that the goods were indeed short-packed in the first instance. However, considering the nature of the transaction, the type of goods involved and the total value of the replaced goods, I do not think it necessary to call for this evidence now. In the result I allow the appeal and order refund of the duty paid on the short-packed goods.