K. Gopal Hegde, Member (J)
1. This appeal arises out of and is directed against the Order bearing No. S/49-407/82M dated 8-6-83 passed by the Collector of Customs (Appeals), Bombay.
2. It appears that the appellants imported 12 drums and cleared 9 drums. Bombay Port Trust issued shortlanding certificate in respect of one drum. Two drums were not traced and a missing certificate was also issued by the BPT in respect of those two drums. Since five drums were found dented, a joint survey was held in presence of BPT and the survey disclosed shortage of 541 kgs. The appellants sought refund of customs duty in respect of shortlanded missing drums as well as the shortage noticed during this joint survey. The Asstt. Collector ordered refund in respect of shortlanded drum. As regards missing drums, the Asstt. Collector made an observation “shortage was not brought to the notice of the Customs before the Out of Charge Order was passed.” He, however, stated that the matter was still under consideration. As regards shortage, the Asstt. Collector felt that the Customs were not associated and therefore the claim is inadmissible. On appeal, the Collector (Appeals) confirmed the order passed by the Asstt. Collector.
3. Shri Bhatt appearing for the appellants submitted that there is a certificate issued by the BPT with regard to the shortage. This certificate was issued by reason of a joint survey and that BPT was a party to the survey. He further submitted that there was a complaint to the Yellow Gate Police Station and thereafter the BPT issued a certificate stating that two drums are missing. Shri Bhat therefore urged that there may be an order for refund for proportionate duty in respect of missing drums as well as the shortage noticed in respect of five drums.
4. Shri Pattekar appearing for the Collector submitted that the Customs were not parties to the survey and therefore the survey report is not binding on the Customs. He, however, stated that in case the Bench is inclined to allow the appeal with regard to the shortages, the matter may be remanded to the Asstt. Collector, for consideration afresh.
5. We have carefully considered the submissions made on both the sides. The present claim is restricted only in regard to the two drums which were missing and shortage of 541 kgs. Kobalt metal. As regards the two drums the order of the Asstt. Collector is very clear. He had not rejected the appellant’s claim. He only stated that the matter is still under consideration. The appellants ought to have pursued the matter with the Asstt. Collector instead of approaching the Appellate Tribunal. It is open to the appellants to pursue that matter.
6. As regards the shortage, it is undisputed that the joint survey took place before the physical clearance of the goods and when the goods were in the custody of the custodian namely the BPT authorities. The BPT authorities were associated at the time of survey. The law nowhere lays down that the Customs should be associated at the time of survey. Therefore, merely because the Customs was not associated the claim cannot be rejected. The Asstt. Collector is required to examine the evidence with regard to the shortage. Such an examination has not been done either by the Asstt. Collector or the Collector (Appeals). We, therefore allow this appeal in part and remand the matter to the Asstt. Collector for consideration of the appellant’s claim regarding the shortages. He is at liberty to consider the claim along with the claim in respect of the two missing drums.