Judgment:
1. This is an appeal filed by the appellants against the order passed by the Collector of Customs (Appeals), Calcutta in Order No. Cal.
Cus-401/91 dated 14-6-1991, in terms of which he confirmed the order passed by the Assistant Collector of Customs in rejecting the refund claim made by the appellants. The learned Consultant, Shri P.C. Chadha along with A. Girijasankar, Deputy Manager of the Appellant's Company, appeared for the appellants and contended that before the home-delivery was taken it was found that one of the package was in a damaged condition. Accordingly, a survey was held with respect to that package and in that survey it was found that one Quick Disconnect Socket was found missing. He also pointed out that the Customs Authorities were asked to make an endorsement in this behalf on the reverse of the bill of entry. But they did not do so. He also pointed out that a letter was written in this regard by the appellants dated 1-8-1990 bearing the number : Cal/HQMN/2702/126/91. But these facts were not taken into consideration and without taking into consideration the claim was rejected. In this connection, it was also contended that in the beginning when the package was examined, it was found to be in tact.
But later when they went to take the same for clearance for home-consumption, it was noticed that there was a damage and therefore, the survey was held before the clearance. In that survey this shortage was noticed. But the same was not taken note of by the Calcutta Port Trust as well as by the Customs Authorities in spite of the request made in this behalf. The learned Consultant, Shri P.C. Chadha also stated that the claim is within the parameter of Section 13 of the Customs Act, 1962 and stated that if any goods are pilfered after the unloading thereof, and before the proper officer has made an order for clearance for home-consumption, then the importer is not liable to pay any duty.
2. The learned S.D.R., Shri M.N. Biswas appearing for the respondent Collector, in the first instance contended that it is for the appellants to prove that the shortage happened after the unloading and before an order for home-consumption was made by the proper officer. He stated that the Customs are not bound by any survey which was not conducted in their presence. He contended that there is no evidence to show that this survey was conducted in the presence of the Customs Authorities. It was his contention that if any such survey had taken place in their presence, a noting to that effect would have been found on the reverse of the bill of entry. As far as the letter dated 1-8-1990 is concerned, the learned S.D.R. perused the same and submitted that there is no evidence to show that the Customs Authorities had received the same. He also stated that there is no endorsement or record of the C.P.T. to show that the package in question was in a broken condition. He also stated that the Shed Appraiser's report does not indicate any shortage too. He also relied on the decision reported in 1990 (50) E.L.T. 322.
3. Shri Girijasankar for the appellants stated that the goods arrived in good condition. At the time of appraising, it was all right and when they went to take the clearance of the goods, the package in question was found in damaged condition. At that time, it was in the custody of the C.P.T. At that juncture, the survey was conducted.
4. Shri Biswas stated that on the facts and circumstances of this case Section 13 is not applicable.
5. I have considered the submissions of both sides. In order to claim the refund it must be established that the goods were pilfered after unloading and before the delivery was taken for home-consumption. In all such matters, before rejecting the claim the Assistant Collector should have enquired the matters with the Port Trust Authorities. In the decision reported in 1983 (14) E.L.T. 1962 (CEGAT) in the case of Mackinnon Forwarding Service, Calcutta v. Collector of Customs, Calcutta, "5. The Tribunal observes that under Section 45 the responsibility for custody of imported goods and their removal from the Customs area, vests in the Port Trust. The appellants had been repeatedly contending that 11 out of 24 bundles on which duty was paid had not been delivered by the Port Trust as they had been pilfered. Under Section 13, if any imported goods are pilfered before the proper officer has made an order for clearance, the importer is not liable to pay the duty leviable, except where such goods are restored to him after pilferage. We are unable to appreciate the Department's contention that no enquiry was necessary either from the Port Trust or the Police Authorities, to verify the contentions of the appellants. It would not have been difficult at all to ascertain the correct position so that the claim could be decided one way or the other. We, therefore, now direct that necessary enquiries be made by the Assistant Collector with the Port Trust and Police Authorities in respect of the alleged pilferage and the refund claim be disposed of in accordance with law." 6. In the light of the above decision, I allow this appeal by way of remand with a direction to the Assistant Collector to make necessary enquiries with Port Trust Authorities and then to dispose of the matter in the light of facts gathered by him in such an enquiry