ORDER
U.L. Bhat, J. (President)
1. This appeal is directed against Order-in-Appeal No. 88/96 dated 10-12-1996 passed by the Commissioner of Customs & C. Ex. (Appeals), Bangalore, confirming the Order-in-Original dated 22-8-1995 passed by the Asstt. Collector, New Custom House, Mangalore.
2. Appellant imported 3,300 MTs of Metal Scrap and presented a Bill of Entry dated 8-2-1991 and two Bill of Entry dated 12-2-1991 seeking clearance and paid appropriate duty of customs during various periods and obtained delivery from the port Trust on various dates during the period 23-4-1991 to 9-10-1991. On 4-11-1991, appellant submitted refund claim for Rs. 21,04,684/-on the allegation that Port Trust delivered only 2,267.180 MTs and the amount claimed was duty paid in excess. Appellant produced various records including weighment certificate issued by the new Mangalore Port and also a Survey Report. Besides the appellant, three other importers had imported identical goods which were also brought in the same ship. The Survey Report indicated the total manifested quantity as 22,000 MTs and the same quantity as discharged at the port. The weighment certificate issued by the Port Trust on 13-11-1991 showed that appellant had received delivery only of 2,267.180 MTs and the port had delivered only total quantity of 20,741.430 MTs to all the 4 importers.
3.The Asstt. Collector held that the manifested quantity had been discharged at the Port Trust, that the Port Trust weighment certificate cannot be relied on, particularly in the absence of Port Out Turn statement or an independent Survey Report and declined to accept the case of the appellant that there was of shortage of delivery and rejected the refund claim.
4. The Commissioner (Appeals) did not go into this aspect of the matter but held that refund of duty would be admissible only prior to order of clearance which may be passed by the Proper Officer and since in this case, order of clearance had been passed on various dates prior to refund claim, by which alleged shortage was brought to the notice of the Custom House, Section 23 of the Customs Act, 1962 would not apply. These orders are now challenged.
5.Sub-section (1) of Section 23 of the Act states that when imported goods have been lost otherwise than as a result of pilferage or destroyed at any time before clearance for home consumption, the Asstt. Collector of Customs shall remit the duty on such goods, on being satisfied such loss.
6.Shri Victor Thiagaraj, SDR contended that the words “at any time before the clearance for home consumption” qualify not the loss but bringing loss to the notice to the Custom House. The above provision does not require factum of loss to be brought to the notice of Custom House. Otherwise than in the form of refund claim or by any means prior to clearance.
7. The question therefore for consideration is whether any part of goods imported by the appellant had been lost and if so, whether the loss was before the clearance for home consumption. The Survey Report would show that total quantity imported by all the 4 importers and manifested was offloaded at the Port Trust. The certificate issued by the Port Trust would show that the total quantity delivered by the Port Trust to various importers was only 20,741.430 MTs and the quantity delivered to the appellant was only 2,267.180 MTs. The Asstt. Collector was not prepared to act on this certificate while the Commissioner (Appeals) did not go into this aspect. Shri VictorThiagaraj, SDR also supported the view taken by the Asstt. Collector. According to him, the Port Trust maintains a document known as”Out Turn statement” or “Out Turn Report” which will show the quantity manifested, thequantity discharged at the port trust and the quantity delivered by the port trust to importers. According to him, this is the most authentic document onthe basis of which loss or shortage, if any, can be proved. It is the contention of the appellant that Asstt. Collector if had any suspicion about the certificate issued, could have verified the same with the port trust authorities or compared the figures therein with the figures in the copy of Out Turn statementwhich the Port Trust is required to furnish to Custom House. Show CauseNotice alleged that weighment certificate is not an authentic document for thepurpose of claiming refund. We are not able to understand the impact of thisstatement. If the certificate is issued by the Port Trust authority, ordinarily, there is no reason why it cannot be regarded as authentic. Authenticity of a document is the genuineness of the document. Asstt. Collector, if he had any doubt about the genuineness of the document, could have verified the same from the Port Trust authority. If he doubted the correctness of the figures shown in the certificate that again was a matter for verification with reference to original records available with port trust authority. He could have called upon the appellant to produce copies of the Out Turn statement or himself approached Port Trust authority for verification or looked into the copy of the statement which ordinarily is required to be forwarded to the Custom House. To a question put by us, the representative of the appellant, Shri Ravi Shankar, Chartered Accountant, submitted that the appellant will be in a position to produce copy of the relevant Out Turn statement before the adjudicating authority, if an opportunity is given to him. In the circumstance, we are inclined to give such an opportunity to the appellant.
7.We are not in agreement with the view taken by the Commissioner (Appeals) that refund application not having been filed prior to order of clearance, the loss was not brought to the notice of Custom House and hence the claim is not sustainable.
8.Shri Victor Thiagaraj, Sr. Deptt. Representative referred to the decision in Bharat Earth Movers – 1985 (20) E.L.T. 163 (T). There is only one sentence in the decision which throws light on the controversy i.e. “Section 23 provides for remission of duty on any imported goods by the Asstt. Collector if such goods have been lost or destroyed at any time before the clearance for home consumption”. The above passage will clearly show that loss which took place before the clearance for home consumption would be the loss or contemplated by Section 23. Therefore reasoning adopted by Commissioner (Appeals) is not sound.
9.For the reasons indicated above, we set aside the impugned orders and remand the case to the jurisdictional authority for decision afresh after giving appellant an opportunity for producing relevant documents and of personal hearing.