ORDER
1. By Order No. S25/6145/80- A.P., dated 31-10-1980, the Assistant Collector of Customs, Refunds Section, Madras, rejected a claim for shortages discovered at the time of survey on the score that the shortages were not brought’ to the notice of Customs before the proper officer had made an order for clearance of the goods for home consumption. In appeal, the Collector of Customs (Appeals), Madras upheld the decision of the Assistant Collector-vide No. C. 3/3489/1980, dated 10 3-1982. A revision application, was filed against the order of the Collector (Appeals) which stands transferred to the Tribunal to be heard as an appeal in terms of Section 131B of the Act. In the written memorandum of appeal, it is stated that physical clearance of the packages from the Port Trust’s custody was done after conducting independent ship survey in the presence of Customs Officers and the goods was cleared physically out of the Customs’ charge after conducting survey vide Sections 13 and 23 of the Customs Act, 1962.
2. Before us Shri Ragunathan, the learned Advocate for the appellant referred to the decision of the West Regional Bench of the Tribunal in the case of M/s. Hindustan Petroleum Corporation v. Collector of Customs, Bombay -1984 (18) E.L.T. 358 (Tribunal)-1984 ECR 2119 (CEGAT, Bombay)- wherein though an earlier decision of this Bench was brough to its notice, that Bench held that the decision of the Delhi High Court in the case of Sialkot Industrial Corporation 1979 E.L.T. (J 329) (Del.) should be followed. While concurring in the judgment, one of the Members added that in view of the amendment of Section 23(1) by the Finance Act of 1983, the position prior to amendment should be that even pilferage was included within the scope of Section 23(1) of the Customs Act.
3. It is common ground that the shortage has been discovered, after an order for clearance, was passed by the proper officer of Customs. If Section 13 alone would apply, the order of rejection of the Assistant Collector as confirmed by the Collector (Appeals) would be maintainable on facts and law.
4. One of us had occasion to deal with the effect of the amendment of Section 23(1) of the Act by the Finance Act, 1983 in the case of “Best & Crompton Engg. Ltd. v. Collector of Customs, Madras”-Appeal No CD (MAS) 83/84, dated 27-10-1984. It has been observed therein :
“It has already been held in the case of Bharat Electronics Ltd. that the provision of Section 23(1) would not deal with a case of pilferage but one in which goods are absolutely lost. In coming to that decision, the Bench had traced the history of the Section at the time of enactment of Sections 13 and 23-noted that one part of that story was not before Their Lordships of the Delhi High Court when they took a view in regard to Section 23(1) in the ‘Sialkot Industrial Corporation, case; hence the Bench respectfully disagreed with the decision of that Court. The Finance Bill of 1983 amended Section 23(1) by insertion of the words “otherwise than as a result of pilferage” does not indicate the reasons that led to the amendment. Neither the statement of objections and reasons nor the note on clause throws any light on this aspect. There is no doubt that certain amount of controversy exist at that time as to the exact scope of Sections 13 and 23(1) of the Act. In the circumstances, it appears that the amendment of Section 23(1) by the Finance Bill, 1983 was by way of clarification a measure of abundant caution rather than for alternation of the pre-existing provisions of law. In this connection I note that Maxwell on Interpretation of Statutes states,
‘How far one may look at a later statute is questionable. The question was discussed by the House of Lords in Kirknesx v. John Hudson and Co. Ltd., where Lord Reid said that the earlier decision of the House in Ormond Investment Co. v. Belts afforded ‘conclusive and binding authority for the proposition that, in construing a provision of an earlier Act, the provisions of a later Act cannot be taken into account except in a limited class of case, and that rule applies although the later Act contains a provision that it is to be read as one with the earlier Act. Of course, that does not apply where the later Act amends the earlier Act or purports to declare its meaning ; in such cases, the later Act operates directly by its own force. But where the provisions of the later Act could only operate indirectly as an aid to the construction of words in the earlier Act those provisions can only be used for that purpose if certain conditions apply to the earlier Act when it is considered by itself. For the later statute to become relevant, there must be something obscure or ambiguous, or readily capably of more than one interpretation in the earlier one, some “phrase fairly and equally open to diverse meanings’. If such an ambiguity can be found, it becomes permissible to look at the later Acts not perhaps to construe the earlier statute, but to see the meaning which Parliament puts on the self-same phrase in a similar context, in case it throws any light on the matter.
We would reiterate that view and hold that the later amendment of Section 23(1) does not make any difference ; the amendments are by way of clarification.
5. In coming to the decision that they did in the case of Hindustan Petroleum Ltd., the West Regional Bench was informed of an earlier decision of this Bench that Section 23(1) will not cover shortage by way of pilferage. Though in the normal course of work that Bench could have referred the matter to the President for resolving the conflict in view between the two Benches of the Tribunal, it has been noted that the meaning of the word ‘loss’ appearing in Section 23 as interpreted by the Delhi High Court in the Sialkot Ind. Corporation case is based on a decision of the Supreme Court; and the decision of the Supreme Court is binding on all Tribunals and all Courts under Article 141 of the Constitution. However, the view that the decision of the Delhi High Court is based on a principle laid down by the Supreme Court does not seem to be the correct one.
6. The decision of the Delhi High Court in the case of Sialkot Ind. Corporation v. Union of India and Anr.-1978 Tax L.R. 1700-refers to the decision of the Supreme Court in “East and West Steamship Co. v. S.K. Ramalingam Chettiar” – AlR 1960 S.C. 1058. Justice Shri Misra of the Delhi High Court had extracted the decision of the Supreme Court in interpreting the word ‘loss’ as occurring in the Carriage of Goods by Sea Act, 1925 Schedule, Art. III, Para 6, Clause 3. However, in para 13 of the same Judgment, Justice Shri Misra has observed that,
“I am fully conscious of the view that the construction of a particular expression in one statute need not follow the construction of the same expression in other statutes and we have to take into consideration the language used, the object of the Act, the preceding provision of law, the mischief which was sought to be remedied and the intention of the legislature in enacting the provision”.
Then he goes on to examine the provisions of the Sea Customs Act, 1878. Hence the observation that the Judgment of the Delhi High Court is based on one of the Supreme Court in similar circumstances does not seem to be quite apt.
7. Accordingly, we see no reason to change the stand taken by us earlier in regard to the scope of Section 23 (1) as set out in the case of Bharat Electornics Ltd. v. Collector of Customs, Madras in Appeal No. CD(T) (Mad.) 167/81, dated 16-2-1983, 1983 E.L.T 653. In the result, the appeal fails and is dismissed.