ORDER
M.P. Bohra, Member (J)
1. This appeal has been filed against Order-in-Appeal passed by the Commissioner of Customs (Appeals) dated 18th August, 2003, by which he rejected the refund of appellants.
2. Brief facts of the case are that the appellants imported liquid fertilizer viz. Microsul and Folizyme on 18th October, 1996. The goods were kept in warehouse under Section 49 of the Customs Act, 1962. The duty was determined by the Customs authorities on 5th December, 1996 of Rs. 5,18,602 for Microsul and Rs. 2,98,146 for Folizyme. The appellants paid total duty of Rs. 8,16,748 in respect of both the items on 9th December, 1996. The Customs authorities released Microsul on 10th December, 1996 and detained Folizyme. On 15th June, 1999, the Customs authorities ordered to release of the detained goods. The appellants lifted 203 pails on Folizyme from the bond warehouse out of which 73 pails were in empty condition. The appellants informed the bonded warehouse and requested for joint survey to the authorities on 20th July, 1999. On 10th December, 1999, the bonded warehouse signified its no objection to the joint survey provided the Customs authorities allow it. The appellants requested the Customs authorities on 31 January, 2000 for joint survey but no progress was made, so the appellants filed by Writ Petition under Article 226 of the Constitution of India before Hon’ble Calcutta High Court. Hon’ble High Court ordered for a joint survey. The Deputy Commissioner allowed joint inspection on 7th June, 2001. On 19th July, 2001, the joint survey were conducted. Then it was found that out of 145 pails, 96 were empty and 48 were in lump condition on. On December 28, 2001′, the appellants requested the customs authorities for refund of duty of Rs. 1,86,769 in respect of the said 145 pails lying in the bonded warehouse and earlier 73 pails delivered in empty condition by the warehouse. Another letter was sent to the Customs authorities for refund on 13 March, 2002. When survey was conducted, it was only endorsed by the one of the Officers whereas it was mandatory that it ought to have been endorsed by the second officer. The appellants requested the Deputy Commissioner on 21st August, 2002 for endorsement of second signature on 22nd August, 2002. The Customs authorities directed the appellants to contact the Customs Officers at his new place of posting for signature. The second Customs Officer signed the joint survey on 29th August, 2002. On 16th September, 2002, the appellant given a letter to the Customs authorities for refund. The appellants furnishes explanation for delay in refund on 27th September, 2002 in response to the letter dated 29th September, 2002 written by the Assistant Commissioner to explain the delay. The appellants also submitted the evidences to show that the incidence of duty have not been passed on by him on any other person. The Assistant Commissioner rejected his claim of refund on 14th November, 2002 and Commissioner (Appeals) dismissed the appeal on 18th August, 2003 holding that it is time bar. Hence the appeal has been preferred.
3. Heard both the parties.
4. Ld. Advocate, Shri J.P. Khaitan, appearing for the appellants, submits that in the present case, the goods were detained in warehouse after paying Customs duty which was evident from the Bill of Entry for home consumption. The endorsement dated 10th December, 1996 made it clear that only Microsul were released whereas the Folizyme was detained. It was released on 15th June, 1999. When the goods were lifted from the warehouse by the appellants, then he came to know about the damage of the goods. It was the duty of the Customs authorities to preserve the goods in original condition. The appellants paid the whole duty. When it came to knowledge of the appellants about the damage of the goods, than he asked for the joint survey which was done after the direction of the Hon’ble High Court of Kolkata. He submits that the refund application/remission application was filed on 20th December, 2001 which was within time i.e. within 6 months from July 19, 2001. The appellants could only know about the damage after the joint survey was conducted on 19th July, 2001, the appellants can ask for remission and refund. For such remission, ld. Advocate relied this Tribunal’s decision in the case of SAIL, Jr. Manager (F & A) v. Commr. of Customs, Kolkata, 2002 (148) ELT 1236 (Tri.-Kolkata). He also submits that in view of the above judgment, the application was within time and he also relies on the judgment in the case of Priyanka Overseas Pvt. Ltd. v. Union of India, 1991 (51 ELT 185 CSC). In view of the above two judgments, the ld. advocate prays that the appeal may kindly be accepted.
5. Ld. JDR, Shri J.R. Madhiam, appearing for the Revenue submits that in the present case, the duty paid on 9th December, 1996 and the refund application has been presented on 16th September, 2002. The goods are released on 15th June, 1999 and was lifted on 30th June, 1999. So, the refund application has been filed after the expiry period of six months, so it is time barred. He further submits that so far as 73 pails are concerned, they were lifted in the year 1999 and they were emply (sic, emptly). So the refund became due on 30th June, 1999. So it is hopelessly barred by law of limitation. Further he submits that only duty element is Rs. 1,24,227 and rest of the amount is the cost of the goods which is not refundable. He further submits no remission application can be filed after depositing of the duty. So the appeal may kindly be dismissed.
6. So far as the remission or refund claim is concerned, it can be filed after depositing the duty as it has been held by this Bench in the case of SAIL, JR. Manager (F & A) v. Commr. of Customs, Kolkata, 2002 (148) ELT 1236 (Tri.-Kolkata) wherein it has been observed as under:
“Remission of duty — Goods cleared for home consumption but found damaged/burnt at the time of physical examination — Duty paid after assessment of Bill of Entry — Goods having not been cleared from control of Customs Authorities, refund/remission of duty not deniable — Section 23 of Customs Act, 1962.”
In the present case also, the duty was paid on Bill of Entry. The goods were damaged in warehouse which was in Custody of the Customs Authorities. Before lifting the goods, the appellants asked for joint survey which was conducted after the intervention of the Hon’ble High Court’s Order. In Joint survey, it revealed on 19th July, 2001, that 145 pails were damaged, out of which 97 pails were empty and 48 were in lump condition. The appellants requested for remission of the duty and refund of Rs. 1,86,769 on 28th December, 2001 i.e. within the period of six months from the date of Joint survey conducted on 19th July, 2001. The appellants only came to know about the damage after the joint survey and remission/refund became due on 19.7.2001. The application for refund was filed by the appellants on 28th December, 2001, which was within time. In the present case, the goods were lying in the warehouse which was the custody of Customs and damage occurred during that period. So the question of passing of incidence of duty on other persons does not arise.
7. The Assistant Commissioner of the Customs, Kolkata, in his Order-in-Original dated 14.11.2002 and the Commissioner of Customs (Appeals) in this order dated 18.8.2003, committed an error in holding that the claim is time bar. For the above reasons the appeal succeeds.
8. In so far as the refund is concerned, the appellant is entitled only refund for Rs. 1,24,227. So far as Rs. 62,542 is concerned, the appellant has lifted the goods on 30th June, 1999 and the claim pertaining to 73 pails are concerned, it is time barred. Appeal is allowed upto Rs. 1,24,227 only. I set aside the impugned orders and allow the appeal with consequential relief to the appellant accordingly.