1. Agfa-Gevaert India Ltd. had filed a revision application to the Additional Joint Secretary (Revision Application), Government of India, Ministry of Finance, Dept. of Revenue, New Delhi being aggrieved from the Order No. CAL/CUS-46/1981, dated 17th June, 1981 passed by the Appellate Collector of Customs, Calcutta. After the coming into existence of the Tribunal, the said revision application stands transferred to the Tribunal under Section 131B of the Customs Act, 1962 to be disposed of us an appeal.
2. Briefly the facts of the case are that Agfa-Gevaert India Ltd. had imported a consignment of 8 cases copyline films and claimed refund of duty on the ground that the goods were found to be damaged/deteriorated before clearance. The claim of refund of duty was against Bill of Entry No. DI-508, dated 10th July, 1979 per s.s. Indian Prestige, Rot. No.364/79, Line No. 286.
The learned Asstt. Collector of Customs found that there was no report of Shed Appraiser on the reverse of the duplicate bill of entry about damage and deterioration under Section 22 of the Customs Act, 1962 prior to clearance for home consumption and had rejected the appellant's claim for refund. Being aggrieved from the aforesaid order, the appellant had filed an appeal to the learned Appellate Collector of Customs.
Before the learned Appellate Collector, the appellant had contended that the entire consignment of copyline film was imported for the research wing of Rourkela Steel Plant against a specific import licence, it was further contended that there was no endorsement of the Shed Appraiser to that effect. There was the Port Trust Certificate that five cases were landed in B.K. condition and one case in T.R., two remaining cases though sharing no outward sign of damage were also found with damaged contents. Chemical test and Shipping Agent's certificate also confirmed the damage. The learned Appellate Collector did not accept the contention of the appellant on the ground that as per provisions of Section 22 of the Customs Act, 1962, the extent of damage has to be ascertained either by the proper officer of Customs or the goods have to be sold to ascertain what value it fetches. As the appellant did not satisfy any of the conditions the appeal was rejected. Being aggrieved from the aforesaid order, the appellant has come in appeal before this Court.
3. Shri S. Ramachandran, Office Assistant of the appellant firm has appeared on behalf of the appellant and has reiterated the facts. He has pleaded that the vessel had met an accident and a collision had taken place on the 16th April, 1979 with other vessel and the material was brought to the Calcutta port by a sister vessel. Sea water had entered into the vessel and the material was damaged and the same stands confirmed as per Steamer Agent's letter dated 6th June, 1979. He has further pleaded that as soon as the goods were found to be damaged, the appellant had duly applied for survey and survey report also confirmed the same. He has also stated that the damage was not recorded on the bill of entry by the appraiser and the appellant was advised that the same is to be done after the chemical report. It has been further pleaded that the appellant's refund amount is Rs. 99,827.42.
The payment was made on the 10th July, 1979 and the refund application was filed on 19th September, 1979 i.e. within six months. The learned authorised representative has stated that there is no fault on the part of the appellant in any way. The appraiser on duty should have recorded the same. He had also submitted that the damage was duly proved before taking of the delivery and the survey was conducted before delivery.
The delivery was taken on 7th September, 1979. He has referred to clause (a) of subsection (1) of Section 22 of the Customs Act, 1962.
The learned authorised representative has pleaded that in this case, there should be abatement of duty as the goods were in the custody of the steamer agents and there is no negligence on the part of the appellant. He has referred to Port Trust Certificate which confirms that five cases were landed in B.K. condition and one case in T.R., two remaining cases though sharing no outward sign of damage were also found with damaged contents. Shri Ramachandran, the learned authorised representative has requested for the acceptance of the appeal.
4. In reply Shri A.K. Chatterjee, the learned Junior Departmental Representative has pleaded that the abatement of duty on damaged or deteriorated goods can be granted only where it is shown to the satisfaction of the Asstt. Collector of Customs that any imported goods had been damaged and had deteriorated at any time before or during the unloading of the goods in India. The appellant has to satisfy what is the damage, when the damage has taken place, what is the law on abatement of duty on damaged goods. He has pleaded that the appellant has not been able to satisfy these conditions as per provisions of Section 22 of the Customs Act, 1962. The same is reproduced as under : (1) Where it is shown to the satisfaction of the Assistant Collector of Customs- (a) that any imported goods had been damaged or had deteriorated at any time before or during the unloading of the goods in India; or (b) that any imported goods, other than warehoused goods, had been damaged at any time after the unloading thereof in India but before their examination under Section 17, on account of any accident not due to any wilful act, negligence or default of the importer, his employee or agent; or (c) that any warehoused goods had been damaged at any time before clearance for home consumption on account of any accident not due to any wilful act, negligence or default of the owner, his employee or agent, such goods shall be chargeable to duty in accordance with the provisions of Sub-section (2).
(2) The duty to be charged on the goods referred to in Sub-section (1) shall bear the same proportion to the duty chargeable on the goods before the damage or deterioration which the value of the damaged or deteriorated goods bears to the value of the goods before the damage or deterioration.
(3) For the purpose of this section, the value of damaged or deteriorated goods may be ascertained by either of the following methods at the option of the owner : (a) The value of such goods may be ascertained by the proper officer, or (b) such goods may be sold by the proper officer by public auction or by tender, or with the consent of the owner in any other manner, and the gross sale-proceeds shall be deemed to be the value of such goods." The learned JDR has pleaded that there is nothing to show the extent of damage and there is no conclusive evidence on record to prove when the damage had taken place. The learned JDR has referred to Section 12 of the Customs Act, 1962. The Section 12 is the charging Section. He has pleaded that the Customs duty has to be levied on the ground 'imported into India' and the definition of 'import' as per Sub-section (23) of Section 2 is : " 'Import", with its grammatical variations and cognate expression, means bringing into India from a place outside India;" The learned JDR has pleaded that Sections 13, 22 and 23 relates to the abatement of duty. Section 13 of the Customs Act, 1962 deals with pilferage, Section 22 of the Customs Act, 1962 deals with abatement of duty on damaged or deteriorated goods. He has further pleaded that Section 22(1 )(a) does not apply in this case as there is no evidence when the damage had taken place and the value of the damaged goods has not been ascertained. The Steamer Agent's survey was conducted on 7th September, 1979 and the insurance report does not show the extent of damage. The learned JDR has pleaded for dismissal of the appeal.
5. In reply, Shri Ramachandran, the learned authorised representative has referred to the letter dated 6th June, 1979 of India Steamship Co.
Ltd. appearing at page 2 of the annexure of the appeal which shows that the vessel had met an accident and the damage had taken place before taking of the delivery of the goods. He has pleaded that the bill of entry is with the Customs authorities. He has pleaded for the acceptance of the appeal.
6. After hearing both the sides and going through the facts and circumstances of the case, I would like to observe that for claiming of abatement of duty on damaged and deteriorated goods, the appellant has to satisfy the provisions of Section 22 of the Customs Act, 1962. As per provisions of Section 22 where it is shown to the satisfaction of the Assistant Collector of Customs that any imported goods had been damaged or had deteriorated at any before or during the unloading of the goods in India, such goods shall be chargeable to duty in accordance with the provisions of Sub-section (2). Sub-section (2) provides that the duty is to be charged on the goods referred to in Sub-section (1) shall bear the same proportion to the duty chargeable on the goods before the damage or deterioration which the value of the damaged or deteriorated goods bears to the value of the goods before the damage or deterioration and Sub-section (3) of the Section 22 lays down the manner for ascertaining the value of the damaged or deteriorated goods at the option of the owner. The value of such goods may be ascertained by the proper officer, or such goods may be sold by the proper officer by public auction or by tender, or with the consent of the owner in any other manner and the gross sale-proceeds shall be deemed to be the value of such goods. In the instant case, these conditions are not fulfilled. The learned Appellate Collector of Customs has observed in the last para of his order that he had examined both the original and duplicate copy of the bill of entry and found that there was no report of survey or damages on these by the Shed Appraiser. 1 have got full sympathy for the appellant. But the provisions of Section 22 of the Customs Act, 1962 are mandatory. The appeal is dismissed.