ORDER
V.K. Ashtana, Member (T)
1. To get the appeal No. C/798/91 considered by the Tribunal, the appellants have filed COD application No. C/COD/613/99 seeking condonation of delay of two days in filing the appeal. Since the delay is marginal being only of two days, the same is condoned.
2. Apart from this appeal, appeal Nos. C/100-102/92 of the same appellants are concerned with identical matters. Therefore, these four appeals are being taken up together for consideration.
3. The short issue in all these appeals arises out of the duty paid by the appellants on the goods imported on the basis of the quantity reflected in the invoices and the Bills of Entry, which was assessed on second check basis. After paying the duty, when the appellants went to the Port Trust for taking delivery of the goods, it was found that the quantity available for delivery with the Port Trust was less than the quantity declared in the Bills of Entry. The quantities so ascertained by the Port Trust are in the payment slips issued by the Port Trust as custodian of the goods. The resultant refund claims were disallowed by the lower authorities vide Orders-in-Appeal Nos. 101-139/91 dated 31.12.1990 which is impugned in Appeal No. C/798/91 noted above and Order-in-Appeal No. 1588-1630/90 dated 27.8.1990 which is impugned in Appeals Nos. C/100-102/92.
4. When the case was called, none appeared for the appellants despite repeated notices, therefore, we are considering the matter as per records and after hearing the learned D.R. Sri Section Sudarsan.
5. Learned D.R. submits that the Order-in-Appeal dated 27.8.1990 gives detailed findings in the matter and the later Order-in-Appeal dated 31.12.1990 follows the ratio of the same. The learned D.R. submits that in the Order-in-Appeal dated 27.8.1990, the learned Commissioner (Appeals) has rejected their appeal on two grounds namely:
(a) There is no evidence produced by the appellants to show that the goods had been short landed in terms of Section 116 of the Customs Act, 1962; and
(b) It is also not their case that the goods after landing were pilferred and therefore, they are entitled to a remission under Section 23 of the Customs Act because it was not shown to the satisfaction of the Assistant Commissioner of Customs that the goods had been either lost or destroyed before Customs granted clearance for home consumption. He, therefore, reiterates the said findings of the learned Commissioner (Appeals) and prays that there is no merit in these appeals and the same should be rejected.
6. We have carefully considered these submissions and records of the case. We find that before taking delivery of the goods imported, the appellants had not raised the issue of short quantity being available for delivery by the Port Trust to them with the Customs Authorities with a claim that the differential quantity had been pilferred or lost and therefore, the remission was due to them under Section 23 read with Section 13 of the Customs Act. If they had done so, the Customs authorities could have participated themselves in ascertaining the actual quantity available with the Port Trust and which was delivered to them and could have given Customs clearance only to that quantity. Since this issue was not before the Customs authorities, once the goods manifested and documented on the statutory documents including Bills of Entry were cleared out of Customs charge, no refund is available under law to the appellants. This issue has also been considered by the Hon’ble Supreme Court in the case of All India Glass Manufacturers Federation v. CCE as wherein it was held that since the damage to goods was not proved to the satisfaction of the Customs Officers before the Customs clearance of the goods, refund of proportionate Customs duty Was not admissible. Though in that case, the Hon’ble Supreme Court had considered the issue in terms of Section 22 and 27 of the Customs Act, the principle involved therein is the same as in this case. It is also seen that the Government of India had already rejected the appellants revision application on the ground that there was no issue of short landing involved in this case in terms of Section 116 of the Customs Act.
7. The total picture which emerges out of our consideration of the facts and law is that the Assistant Commissioner of Customs having not been satisfied by the appellants in terms of Section 23 ibid, no refund could be available to the appellants, after the goods have crossed the Customs barrier on being granted Customs out of charge. In reaching this conclusion, we also strengthen our view from the decision of Hon’ble Supreme Court in the case of All India Glass Manufacturers Federation (supra). Therefore, these appeals are devoid of any merits and the same are dismissed.
(Pronounced and dictated in open court).