ORDER
R. Jayaraman, Member (T)
1. This is an appeal directed against the order-in-appeal bearing No. 44/91 BCH dated 11-1-1991.
2. The undisputed factual position involved in this appeal as is evident from the orders of the authorities below is recorded in hereinafter:
The appellants imported a consignment of machinery spares which arrived as air cargo on 28-11-1989. They filed B/E on 30-11-1989. However, there was a delay in making the payment of duty and the duty was paid on 31-3-1990. Since the goods were assessed on second appraisement procedure, after payment of duty they approached the Air India, the appointed warehouse custodian on behalf of the International Airport Authority for producing the goods for customs’ examination. However, the packages were not traceable. Thereafter, they corresponded with the Air India without any success. They filed refund claim on 10-4-1990. The claim was rejected by the Asstt. Collector on the ground that the provisions of Sees. 13 or 23 were not fulfilled and it had not been shown that the goods had been pilferred, lost, destroyed or were abandoned and in that view the claim was rejected. When the matter was taken up in appeal before the Collector (Appeals) the said appeal was also rejected. Hence, the present appeal is before us.
3. Shri Shah, the Id. advocate on behalf of the appellants, pleaded by referring to the correspondences which they had with the Air India, to show that the Air India had accepted that the consignment was received by flight No. AI-120 on 28-11-1989 and it was received in good condition and taken in to their warehouse. However, in their final letter dated 7-8-1990 they have indicated that in spite of their best efforts the cargo could not be traced and therefore could not be delivered to the appellants. In this letter they have raised a presumption that it might have been disposed of as unconnected cargo during one of the disposal auctions under Customs supervision. In any case, the appellants have not received any notice regarding the disposal auction held under Customs supervision. The delay in payment of duty is for bona fide reasons and it cannot be held against them for denying the benefit either under Sec. 13 or Sec. 23 of the Customs Act. In this case, the loss or pilferage or theft of the entire consignment has been detected and reported to the Customs authorities before the examination was conducted and before the out of charge order was given. Hence, the benefit should be available to the appellants either under Sec. 13 or Sec. 23 of the Customs Act.
4. Shri Singh, the Id. JDR, for the respondent, submitted that they have taken nearly three months for making the payment of duty and as per the provisions of Sec. 48 of the Customs Act the goods could have been disposed of within 45 days from the date of arrival of the goods, if they have not been cleared. There is no evidence to show that the goods have been lost or destroyed. The Air India had only indicated that the goods are not traceable. The appellants have not even abandoned the goods because of non-delivery. There is no evidence to show that pilferage or theft has taken place and Air India has not admitted this position. Hence, the refund claim has been correctly rejected.
5. After hearing both the sides, we find that the undisputed factual position is that the non-availability of the goods with the custodian was made known to the Department before the out of charge order was given. In fact, it is reported to have been noticed, even before examination of the goods. The duty has been paid under second appraisement procedure, before examination. The Air India has clearly acknowledged non-availability of the goods, which are admittedly received in their custody. Hence, the non-availability could be due to loss on account of theft, pilferage, mishandling or misplacement by the custodian. The custodian’s presumption that the goods might have been disposed of in the auction is not supported by any notice which is required to be issued by the custodian under the provisions of Sec. 48 of the Customs Act. Hence, we are led to conclude that in so far as the appellants are concerned, the goods have been lost to them and they were lost in the custody of the custodian, before clearance for home consumption. Even if it is a case of theft or pilferage in the custody of the custodian, Sec. 13 would be available in this case; because the non-availability has been noticed even before examination of the goods. Delay in payment of duty cannot take away the benefit under Sec. 13 or Sec. 23 of the Customs Act. Because the importer has to pay for the demurrages for the period of delay and is also exposed to the risk of losing the goods if the custodian chooses to resort to auction of the goods under Sec. 48 of the Customs Act. Hence, so long as the conditions laid down under Sec. 13 or 23 of the Customs Act are satisfied and there are evidences to show non-delivery of the goods to the appellants, it has to be construed as a loss in the custody of the custodian and duty remission is to be given. Accordingly, we order that on the appellants furnishing an undertaking that they would pay back the refund amount to the Customs Department, in case the custodian traces the goods at a later date and restores the same to the appellants, refund is to be granted, if it has been claimed within the time limit laid down.
Appeal is disposed of in the above terms.