ORDER
1. This is a matter transferred under Section 131-B(2) of the Customs Act, 1962. The Appellants have asked for refund of duty paid by them amounting to Rs. 23,316.32 on one parcel of motor vehicle components imported by flight No. AI-190-Ex BA of 6-3-79. The appellants have clarified the ground that the claim lies under Section 13 of the Customs Act, as the parcel containing the motor vehicle components was pilferred and lost after unloading thereof. They have also submitted documents during the course of the hearing to show that their claims with the carriers M/s. Air India and Insurance Co. M/s. New India Insurance Co. Ltd. have been paid to substantiate the fact that goods after landing were pilferred and that they could not get any refund ; and they have requested for taking these documents on record. They have also drawn attention to the letters dated 16-10-80 and 27-12-79 from Air India addressed to them which have been filed with their appeal dated 23-10-80. The appellants have also drawn our attention to the duplicate B/E cash No. ACC 1252 of 19-3-79 and submitted that there is no endorsement to the effect that the goods were available for examination and that out-of-charge order by the Customs officer has not been given. They therefore submit that the conditions for the grants of refund under Section 13 of the Customs Act are satisfied and the entire amount of Rs. 23,316.32 be refunded to them.
2. The department has raised the objection for the grant of refund on the ground that the letter from M/s. Air India dated 16-10-80, is a fresh evidence submitted by the appellants only now and that if the Tribunal is inclined to accept it the case should be remanded to the Collector of Customs (Appeal) for de novo consideration. It has also been pointed out that at the first stage of appeal, the appellants had not produced a categorical evidence of the parcel having landed but missing from M/s. Air India. They had not specified whether the claim was under Section 13 or Section 23 of the Customs Act.
3. We have examined the case and considered the arguments both for and against the case. We find that the condition for grant of refund under Section 13 of the Customs Act are fully complied with. Even if we do not take into account the letter dated 16-10-80 from M/s. Air India, the B/E Cash No. ACC 1252 dated 19-3-79 provides sufficient evidence to show that the goods were not cleared. The lack of mention as to whether the claim was under Section 13 or 23 of the Customs Act would not vitiate the claim of the appellant, which is, otherwise in order. Considering these facts, we set aside the Order No. S/49-145/80 Air dated 30-8-1980 of the Appellate Collector of Customs and order the refund of duty amounting to Rs. 23,316.32 to the appellants.