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Corporation Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 647 of 1968
Judge
Reported in13(1977)DLT125; 1979(4)ELT329(Del)
ActsCustoms Act, 1962 - Sections 13
AppellantCorporation
RespondentUnion of India and anr.
Advocates: S.L. Bhatia,; V.P. Nanda, Advs
Cases ReferredDarjeelingHimalayan Rly. Co. v. Jetmul Bhojraj
Excerpt:
.....of sections 13 and 23 - goods assessed to duty - order for clearance for home consumption passed - goods lost before goods cleared out of ware house - claim of petitioner prima facie under section 23 (1) - respondents directed to consider claim preferred by petitioner afresh in light of rule of law. - - the stages at which theprovisions of sections 13 and 23(1) come into play are, thereforee,clearly distinct and demarcated. (9) what is the meaning of the word 'lost'? (10) according to the webster's third new international dictionary, the word 'loss' means 'the act or fact of losing, failure to keeppossession, deprivation, theft of property'.in the same dictionary, the word lost' is defined as meaning 'not made use of, ruined or destroyedphysically or morally, parted with, no longer..........been passed, but before the goodsare actually cleared, and then if it is found that they have been lostor destroyed. in that case the provision is not that the goods willnot be liable for the duty, but that the duty paid on such goods shallbe remitted by the assistant collector. the stages at which theprovisions of sections 13 and 23(1) come into play are, thereforee,clearly distinct and demarcated.(7) in the instant case, the goods had been assessed to duty andan order for clearance for home consumption had been passed, butbefore the goods were actually cleared out of the warehouse, theywere found to be lost. the claim of the petitioner, would, thereforee, prima facie lie under sub-section (1) of section 23.(8) mr. nanda, appearing for the respondents, has resisted theclaim on the.....
Judgment:

B.C. Misra, J.

(1) This writ petition is directed against the orderof the Government of India, dated 23/05/1968, by which ithas dismissed the revision and affirmed the appellate order of theAppellate Collector of Customs, dated 2 4/12/1965, bywhich the appeal had been dismissed and the order of the AssistantCollector of Customs, dated 1/11/1965 had been affirmed.

(2) The material facts of the case giving rise to the writ petitionbriefly stated are that the petitioner had filed a bill of lading in respect of consignment of three cases of stainless steel sheets, whichwere assessable to duty. On 29/06/1965, the goods were examined and duty was paid and an order for home consumption waspassed. The consignment thereafter remained in the public warehouse and delivery of two consignments was taken, but the third consignment was found pilferred on 8/07/1965. On 17/07/1965 the petitioner made a claim for refund of the duty paid on thepilferred consignment and the Assistant Collector by order dated 1/11/1965 noticed that the refund of duty had been claimedas one of the cases was found empty in the docks. But, he heldthat the remission of duty on shortages claimed under section 13 ofthe Customs Act, 1962 (called the Act) was admissible providedthe claim for remission of duty was made in writing before the outof charge order was given by the Customs and since no such claimwas made by the importers before the out of charge order was given,the claim for refund of duty could not be entertained. On appeal,the Collector of Customs maintained the same order and observedthat since the pilferage had not taken place befare the proper officerhad made an order for clearance and as such the claim was inadmissible under section 13 of the said Act.

(3) It appears that the claim as originally filed was made under section 13 but in revision before the Government, it was claimedthat the refund was permissible under section 23 of the Act. TheGovernment, however, by the impugned order found that the provisions of section 23(1) of the Act were attracted. Feeling aggrieved,the petitioner has filed this writ petition and has claimed that on atrue construction of sections 13 and 23 of the Act, the impugnedorders are contrary to law and the refund ought to have been allowed. In the counter affidavit filed by way of return to the rule nisi,the material facts of the case were not disputed. The three consignments had been examined, duty in their respect paid and thenan out of charge order had been passed on 29/07/1965. Onthis date, all the three cases were available. The pilferage tookplace in one of the cases which was found empty. This was established by a certificate of the Bombay Port Trust and the SurveyReport produced by the petitioners. The case set up by the respondents was that the pilferage had taken place after the order forclearance for home consumption had been passed and so the claimwas not admissible under section 13. It has also been denied thatsection 23 of the Act is applicable. The question, thereforee, turnson whether the respondents have erred in not granting the relief tothe petitioner under section 23 of the Act. The relevant provisionson the subject are contained in sections 13 and 23 of the Act, of1962 which are reproduced below :

'13.If any imported goods are pilferred after the unloadingthereof and before the proper officer has made an orderfor clearance for home consumption or deposit in a warehouse, the importer shall not be liable to pay the dutyleviable on such goods except where such goods are restored to the importer after pilferage.23(1) Where it is shown to the satisfaction of the AssistantCollector of Customs that any imported goods have beenlost or destroyed, at any time before clearance for homeconsumption, the Assistant Collector of Customs shallremit the duty on such goods.(2) The owner of any imported goods may at any timebefore an order for clearance of the goods for homeconsumption has been made, relinquish his title to thogoods and thereupon he shall not be liable to pay theduty thereon'.

(4) So far as section 13 is concerned, there is no doubt that itprovides for grant of relief at a stage before an order for clearancefor home consumption or deposit in warehouse has been made. Atthat stage, although a bill of lading has been filed, the duty has notbeen paid and so the order for clearance has not been passed. thereforee, if the goods are at that stage found pilferred, the law providesthat the importer will not be liable to pay the duty on the same.This provision deals with only pilferage of the goods and does notspecify the loss or destruction. The reason for it is obvious. If thegoods have already been lost or destroyed, no bill of lading is likelyto be filed in their respect, which will be filed only if the goods arein existence and are tendered for assessment. Should it be found thatafter the unloading they have been pilferred, then relief is grantedunder this section but before the order for clearance for home consumption has been passed. But what happens after such an order.

(5) Mr. Bhatia, learned counsel for the petitioner, does not placeany reliance on section 13 of the Act, although the same had beenrelied upon before the Customs authorities at the initial stages. Atthe stage of revision, it is section 23 which was sought to supportthe claim and has been repelled by the Government. Mr. Bhatiaclaims that the order of the Government is Illegal and refund oughtto have been allowed under section 23.

(6) An analysis of section 23 shows that this comes into playafter the duty has been paid and even an order for clearance ofgoods for home consumption has been passed, but before the goodsare actually cleared, and then if it is found that they have been lostor destroyed. In that case the provision is not that the goods willnot be liable for the duty, but that the duty paid on such goods shallbe remitted by the Assistant Collector. The stages at which theprovisions of Sections 13 and 23(1) come into play are, thereforee,clearly distinct and demarcated.

(7) In the instant case, the goods had been assessed to duty andan order for clearance for home consumption had been passed, butbefore the goods were actually cleared out of the warehouse, theywere found to be lost. The claim of the petitioner, would, thereforee, prima facie lie under sub-Section (1) of Section 23.

(8) Mr. Nanda, appearing for the respondents, has resisted theclaim on the ground that Section 23 does not apply. The reasonbehind his argument is the interpretation of the section placed by theLaw Minister of the Government in a note. It is to the effect thatthe expression occurring in Section 23 is lost or destroyed, and not'pilferred', which occurs in section 13. According to them whereasfor pilferred goods, section 13 may or may not apply, as the circumstances of the case may warrant, nevertheless, no claim can lie in respect of pilferred goods under section 23 and the expression 'lostor destroyed' used in the section does not embrace within its ambittheft of the goods.

(9) What is the meaning of the word 'lost'?

(10) According to the Webster's Third New International Dictionary, the word 'loss' means 'the act or fact of losing, failure to keeppossession, deprivation, theft of property'. In the same dictionary, The word lost' is defined as meaning 'not made use of, ruined or destroyedphysically or morally, parted with, no longer possessed, taken away orbeyond reach of attainment'. According to Law Lexicon, Vol. 2 page44, the word loss' has no precise hard and fast meaning. It is a genericand a comprehensive term covering different situations. Loss resultswhen a thing is destroyed. But it also is caused when the owner hasbeen made to part with it although the thing remains in tact. In thissense, loss means and implies 'a deprivation'. It is synonymous withdamage resulting either in consequence of destruction, deprivation oreven depreciation and when a party is dispossessed of a thing, eitherwhen it can never be recovered or when it is withheld from him, he isdeemed to suffer the loss.

(11) The Supreme Court in East & West Steamship Co. v. S. K.Ramalingam Chettiar, : [1960]3SCR820 , construing the provisions of Carriage of Goods by Sea Act, 1925, Schedule, Art. IlI, Paragraph6, Clause 3, had construed the word 'loss'. That clause provided that'in any event the carrier and the shipper shall be discharged from allliability in respect of loss or damage unless a suit is brought within oneyear after the delivery of the goods or the date when the goods shouldhave been delivered'. The argument advanced was that the loss ordamaged must be limited to the loss or damaged to the goods themselves.and if the goods had not been delivered and had thus been lost to theparty, this kind of loss was not covered by the expression. This contention was rejected and it was held that the expression dealt with allcases of loss or damage whether the loss or damage was caused by thedeterioration of the goods or was caused by the non-delivery of thegoods and that it included any loss or damage caused to the party.This was the view that the High Court had taken in that case and thesame was assailed before the Supreme Court, which the Supreme Courtrepelled and approving the view of the High Court, it observed thus;

'ONthe first question, thereforee, we have come to the conclusion that the word 'loss' in the third clause of the 6thparagraph of Art. Iii to the Act means and includes anyloss caused to a shipper or a consignee by reason of theinability of the ship or the carrier to deliver part or wholeof the goods, to whatever reason such failure may be due.'

The same view has been taken by the High Court of Punjab inM/s. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., , whereby the court following Sivewright v.Allen, (1906) 2 K.B. 81, observed that loss meant and implieddeprivation to the owner howsoever caused.

(12) Similarly, in Martab Ali v. Union of India, : AIR1954Bom297 , the court construed the provisions of section 77 of the Railways Act, 1890 and observed that one view was that a strict construction must be put on the section and a narrow meaning should be givento the word 'loss', and the other view was that a very comprehensiveview must be taken of the matter and the word 'loss' must be widelyinterpreted. The court finally observed in paragraph 13 that the word'loss' did include the entire claim made by the plaintiff whether on thefooting of non-delivery, or negligence or wrongful detention or conversion on the part of the railway administration. In Union of India v.Mitayagiri Pullappa, Air 1958 A.P. 475 , it was observedthat the word 'loss' in section 77 of the Railways Act meant loss to theowner by whatever means and there was no warrant for making a distinction between claim for compensation on account of the loss of goodsby a Railway Company and a claim for compensation on the ground ofnon-delivery or misdelivery. The same view has been taken in DarjeelingHimalayan Rly. Co. v. Jetmul Bhojraj, : AIR1956Cal390 .

(13) I am fully conscious of the view that the construction of aparticular expression in one statute need not follow the constructionof the same expression in the other statute and we have to take intoconsideration language used, the object of the Act, the preceding provision of law, the mischief which was sought to be remedied and theintention of the legislature in enacting the provision. The correspondingprovision in the old Customs Act, 1878 was sub-section (1) of section 122, which ran as follows:

'IF any goods in respect of which a bond has been executedunder section 92 and which have been cleared for homeconsumption are lost or destroyed by unavoidable accidentor delay, the Chief Customs-officer may his discretion remit the duties due thereon. Provided that, if any such goods be sold or destroyed in a privatewarehouse, notice thereof be given to the Customs-collectorwithin forty-eight hours after the discovery of such loss ordestruction.'

In the bill proposing the present Act, clause 23 dealt with the subject and the note on the same read as follows :

'SUB-CLAUSE(1) replaces existing section 122. Under the existing section remission of duty is permissible only if goodsare lost or destroyed by unavoidable accident or delay.Under the revised provision remission of duty may beallowed in all cases where goods are lost or destroyedwhatever may be the reason. Since cases of total loss ordestruction cause considerable hardship, a generous approach is being made. Further, the new provision will specifically permit remission of duty not only in respect ofwarehoused goods as at present but also in respect of othergoods which are cleared direct for home consumption.Importers will welcome this relief. Sub-clause (2) replacesthe last para of existing section 100 and lays down thatthe proper officer may require that the abandoned goodsshould be surrendered to the Customs Department. Again.the concession in the proposed provision will specificallycover not only warehoused goods which alone enjoy theconcession at present but also goods cleared direct for homeconsumption. This would be an additional relief to importers whose goods have completely deteriorated.'

The note on the clause, thereforee, lends support to the view that theexpression lost or destroyed' in the relevant provision of the Act is notused in any narrow or a particular sense, but in a broader sense andincludes the loss for destruction caused by whatsoever reason. From THE language used and the departure from the previous provision of law,it is obvious that the Parliament intended to give relief to the party forremission of the duty on the goods which had been imported and whichwere lying stored in a public place and which have been lost to theowner for no fault of his whether the goods have been lost or destroyedon account of theft, fire, accident or any other circumstances or causewhatsoever. It is difficult to construe the provision as including allkinds of loss and destruction, but excluding the loss by pilferage. Thereis no warrant for this narrow construction. Mr. Nanda submits thatthe relief in respect of pilferred goods is specifically granted under section 13 of the Act, but that provision applies only to the stage beforethe order for home consumption has been passed. What is the remedyif the goods are pilferred after the passing of the order but before theyare actually cleared. For that purpose section 23 applies and there isno valid reason for drawing a distinction that the duty is liable to beremitted if the goods are after the payment of the duty and before theiractual clearance lost or destroyed in any other manner excepting theirtheft. Theft of the goods in the said circumstances cannot stand on adifferent footing. It is, thereforee, reasonable to hold that the expression'lost or destroyed' is used in the generic and comprehensive sense andincludes within it the case of loss to the party by pilferage. In this viewof the matter, the claim of the petitioner must succeed and the contention of Mr. Nanda is rejected.

(14) As a result, the writ petition is allowed and the impugned ordersof the Central Government are set aside and the respondents aredirected to consider the claim preferred by the petitioner afresh in thelight of the rule of law laid down in this judgment. In the circumstancesof the case, the parties are left to bear their own costs.


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