ORDER
S. Kalyanam Member
1. This appeal is directed against the order of the Collector of Customs & Central Excise (Appeals), Madras, dated 10.5.88 rejecting the appellants’ claim for refund under Section 13 of the Customs Act, 1962, the “Act” for short.
2. The appellants herein imported four cases of spare parts for earthmoving equipment in or about 13th January, 1986 and the goods were cleared by the customs authorities for bonding from the Port Trust on 29.3.86. The goods were bonded at the appellants’ bonded store room at Tiruvallur, which is in the factory premises of the appellants, and were cleared by the appellants on 13.5.86. The appellants subsequently on 19.5.86 detected pilferage of most of the goods is one case and further found that the bottom plank of the package had been removed and the goods had been removed and then the package was re-packed. The appellants had a survey conducted in regard to this by Madras Insurance Surveyors, who also by their report dated 12.6.86 opined that the shortage could have been caused due to pilferage while the goods were lying at the Port Trust premises pending clearance.
3. Shri Chidambaram, the learned Consultant for the appellants, contended that Section 13 of the Act envisages pilferage of goods after the un-loading thereof and before the proper officer has made an order for clearance for home consumption and laid emphasis that the time at which the pilferage takes place would be of relevance in considering the scope of Section 13 of the Act and not when it is actually reported or noticed. The learned Consultant submitted that the appellants’ factory has a very tight security and, therefore, the pilferage, as evidenced by the Survey Report of the Insurance company, could have taken place when the goods were in the port area. The learned Consultant also placed reliance on the ratio of the ruling of the CEGAT in the case of B.R.T. Ltd. v. Collector of Customs, , and another ruling of the CEGAT in the case of Collector of Customs & Central Excise, Ahmedabad v. Sharma Metal Rolling Mills, Bhavnagar, reported in 1989 (20) ECR 343 (Cegat WRB).
4. Shri Vedantham, the learned DR for the Department, urged that there is no evidence to show that the pilferage took place when the goods were in the port area and before an order for clearance was given by the customs authorities. The learned DR also referred to the fact that the appellants did not immediately complain either to the Port Trust authorities or to the Police about the pilferage.
5. We have carefully considered the submissions made before us. The short question that arises for our consideration in the present appeal is with reference to the scope and applicability of Section 13 of the Customs Act, 1962 in the context of the facts and evidence in this case. Section 13 of the Act reads as under:-
Duty on pilferred goods.–If any imported goods are pilferred after the unloading thereof and before the proper officer has made an order for clearance for home consumption or deposit in a warehouse, the importer shall not be liable to pay the duty leviable on such goods except where such goods are restored to the importer after pilferage.
In the present case, as rightly contended by the learned D.R., the appellants have not been able to establish that the pilferage took place after the unloading of the goods and before the proper officer gave an order for clearance for home consumption or for warehousing. In the present case it is not disputed that the shortage was detected only on 19.5.86 by the appellants in their factory and in our view the surveyors are not competent to precisely indicate the time of pilferage and even in the certificate they have merely opined that “shortage could have been caused due to pilferage whilst the goods were lying at the Port Trust premises pending clearance, as was evidenced by a big hole found on one of side planks of the case involved (which was visible only from inside the cases as was noticed at the time of our survey) which was subsequently replanked cleverly so as not to show any visible signs of having been tampered with. “This is only purely an opinion of the Surveyors and that too on the basis of mere surmises and conjecture without any acceptable precise evidence to pin-point or focus the time of pilferage so as to bring it within the mischief of Section 13 of the Act. The rulings of CEGAT referred to by the learned Consultant have no application to the facts of this case and are not applicable as the CEGAT in the case of B.R.T. Ltd. cited supra has only gone into the applicablity of Section 23(1) of the Act particularly as to whether the expression “lost or destroyed” in Section 23 of the Act is used in the generic and comprehensive sense including loss due to theft or pilferage. The ruling in Sharma Metal Rolling Mills case cited supra only deals about the acceptability of private survey report in the context of that case. Therefore, on consideration of the entire evidence on record, we are of the view that the refund claim is not brought within the mischief of Section 13 of the Act and, therefore, has been rightly rejected by the authorities below.
In this view uphold the impugned order appealed against and dismiss the appeal.
(Pronounced in open court)