{"id":140451,"date":"1985-04-02T00:00:00","date_gmt":"1985-04-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/agfa-gevaert-india-ltd-vs-collector-of-customs-on-2-april-1985-2"},"modified":"2017-02-08T20:23:55","modified_gmt":"2017-02-08T14:53:55","slug":"agfa-gevaert-india-ltd-vs-collector-of-customs-on-2-april-1985-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/agfa-gevaert-india-ltd-vs-collector-of-customs-on-2-april-1985-2","title":{"rendered":"Agfa-Gevaert India Ltd. vs Collector Of Customs on 2 April, 1985"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Calcutta<\/div>\n
Agfa-Gevaert India Ltd. vs Collector Of Customs on 2 April, 1985<\/div>\n
Equivalent citations: 1985 (21) ELT 510 Tri Kolkata<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 Harish Chander, Member (J)<\/p>\n
1. Agfa-Gevaert India Ltd. had filed a revision application to the Additional Joint Secretary (Revision Application), Government of India, Ministry of Finance, Dept. of Revenue, New Delhi being aggrieved from the Order No. CAL\/CUS-46\/1981, dated 17th June, 1981 passed by the Appellate Collector of Customs, Calcutta. After the coming into existence of the Tribunal, the said revision application stands transferred to the Tribunal under Section 131B of the Customs Act, 1962 to be disposed of us an appeal.\n<\/p>\n
2.    Briefly the facts  of the case are that Agfa-Gevaert India Ltd. had imported a consignment of 8 cases copyline films and claimed refund of duty on the ground that the goods were found to  be  damaged\/deteriorated before clearance. The claim of refund of duty was against Bill of Entry No. DI-508, dated 10th July, 1979 per s.s. Indian Prestige, Rot. No. 364\/79, Line No. 286.\n<\/p>\n
The learned Asstt. Collector of Customs found that there was no report of Shed Appraiser on the reverse of the duplicate bill of entry about damage and deterioration under Section 22 of the Customs Act, 1962 prior to clearance for home consumption and had rejected the appellant’s claim for refund. Being aggrieved from the aforesaid order, the appellant had filed an appeal to the learned Appellate Collector of Customs.\n<\/p>\n
Before the learned Appellate Collector, the appellant had contended that the entire consignment of copyline film was imported for the research wing of Rourkela Steel Plant against a specific import licence, it was further contended that there was no endorsement of the Shed Appraiser to that effect. There was the Port Trust Certificate that five cases were landed in B.K. condition and one case in T.R., two remaining cases though sharing no outward sign of damage were also found with damaged contents. Chemical test and Shipping Agent’s certificate also confirmed the damage. The learned Appellate Collector did not accept the contention of the appellant on the ground that as per provisions of Section 22 of the Customs Act, 1962, the extent of damage has to be ascertained either by the proper officer of Customs or the goods have to be sold to ascertain what value it fetches. As the appellant did not satisfy any of the conditions the appeal was rejected. Being aggrieved from the aforesaid order, the appellant has come in appeal before this Court.\n<\/p>\n
3.    Shri  S.   Ramachandran,  Office Assistant  of the appellant firm has appeared  on  behalf of the  appellant and  has reiterated the facts.    He has pleaded that the vessel had  met an accident and a  collision   had  taken place on   the   16th  April, 1979  with   other  vessel  and    the    material    was brought to  the Calcutta port  by a  sister vessel.    Sea   water  had  entered into the vessel and the material was damaged and the  same stands confirmed as per Steamer Agent’s letter dated 6th June, 1979. He has further pleaded that as soon as  the  goods  were found  to  be damaged,  the appellant had duly applied for  survey and  survey report also confirmed the same.    He has also stated  that the  damage  was not  recorded  on  the     bill  of entry   by  the appraiser and the appellant was advised that the same is to be  done  after  the chemical report.    It has  been  further   pleaded  that the appellant’s   refund amount is Rs. 99,827.42.    The payment was made on the 10th July,   1979  and the refund application was filed on 19th September, 1979 i.e. within six months. The learned authorised representative has stated that there  is no  fault on the part of the appellant in any way.  The appraiser on duty should have recorded the same. He had also submitted that the damage was duly proved before taking of the   delivery and  the survey was conducted before delivery.    The delivery was taken on 7th September, 1979.    He  has  referred  to  clause  (a)  of subsection  (1)  of Section  22 of the Customs Act, 1962.    The learned authorised representative has pleaded that in this case, there should be abatement of duty as the goods were in the custody  of the steamer   agents and there is no negligence on the part of the appellant.    He has referred to Port Trust Certificate which confirms  that five cases  were  landed in B.K. condition and one case in T.R., two remaining cases though sharing no outward  sign  of damage were also found  with  damaged contents.    Shri  Ramachandran,  the  learned authorised representative has requested for the acceptance of the appeal.\n<\/p>\n
4.    In   reply  Shri  A.K.  Chatterjee,  the  learned  Junior Departmental Representative has pleaded that the abatement of duty on damaged or deteriorated goods can be granted only where it is shown to the satisfaction of the Asstt. Collector of Customs that any imported goods had been damaged and had deteriorated at any time before or during the unloading of the goods in India. The appellant has to satisfy what is the damage, when the damage has taken place, what is the law on abatement of duty on damaged goods. He has pleaded that the appellant has not been able to satisfy these conditions as per provisions of Section 22 of the Customs Act, 1962. The same is reproduced as under :\n<\/p>\n
“22.   Abatement of duty on damaged or deteriorated goods-\n<\/p>\n
(1)   Where  it  is  shown  to the satisfaction of the Assistant Collector of Customs-\n<\/p>\n
(a)   that any imported goods had been damaged or had deteriorated at any time  before  or during the unloading of the goods in India; or<\/p>\n
(b)   that any imported goods,  other  than  warehoused goods,  had been damaged at any time after the unloading thereof in India but before   their examination under Section 17, on account of any accident not due to any wilful act, negligence  or default  of the importer, his employee or agent; or<\/p>\n
(c)   that any  warehoused goods had  been  damaged at  any time before  clearance for home consumption on account  of   any accident not due to any wilful act, negligence  or  default  of the owner, his employee or agent,<\/p>\n
 such  goods  shall  be chargeable  to  duty  in  accordance  with the provisions of Sub-section (2).\n<\/p>\n
(2)   The  duty  to  be charged on the goods referred to in Sub-section (1) shall bear the same proportion to the duty chargeable on the   goods before the damage or deterioration which the value of the  damaged or deteriorated goods  bears  to  the  value  of the goods before the damage or deterioration.\n<\/p>\n
(3)   For the purpose of this section, the value of damaged or deteriorated goods may be ascertained by either of the following methods  at  the option of the owner :\n<\/p>\n
(a)   The value  of such  goods  may  be ascertained  by the proper officer, or<\/p>\n
(b)   such goods may be sold by the proper officer  by  public  auction or  by  tender,  or  with  the consent of the owner in any other manner, and the gross sale-proceeds shall be deemed to   be the value of such goods.”\n<\/p>\n
The learned JDR has pleaded that there is nothing to show the extent of damage and there is no conclusive evidence on record to prove when the damage had taken place. The learned JDR has referred to Section 12 of the  Customs Act, 1962. The Section 12 is the charging Section. He has pleaded that the Customs duty has to be levied on the ground ‘imported into India’ and the definition of ‘import’ as per Sub-section (23) of Section 2 is :\n<\/p>\n
” ‘Import”,  with  its grammatical variations  and cognate  expression, means bringing into India from a place outside India;”\n<\/p>\n
The  learned  JDR   has  pleaded   that  Sections 13,  22  and   23  relates  to the abatement of duty. Section 13 of the Customs Act, 1962 deals with pilferage, Section 22 of the Customs Act, 1962 deals with abatement of duty on damaged or deteriorated goods. He has further pleaded that Section 22(1 )(a) does not apply in this case as there is no evidence when the damage had taken place and the value of the damaged goods has not been ascertained. The Steamer Agent’s survey was conducted on 7th September, 1979 and the insurance report does not show the extent of damage. The learned JDR has pleaded for dismissal of the appeal.\n<\/p>\n
5.    In reply, Shri Ramachandran, the learned  authorised  representative has referred to the letter dated 6th June, 1979 of India Steamship Co. Ltd. appearing at page 2 of the annexure of the appeal which shows that the vessel had met an  accident and the damage had taken place before taking of the delivery of the goods. He has pleaded that the bill of entry is with the Customs authorities.   He has pleaded for the acceptance of the appeal.\n<\/p>\n
6.    After hearing both the sides and going through the facts and circumstances of the case, I would like to observe that for claiming of abatement of duty on damaged and deteriorated goods, the appellant has to satisfy the provisions of   Section   22   of the Customs    Act,   1962.     As   per    provisions   of   Section    22   where   it   is   shown    to    the   satisfaction    of   the Assistant Collector  of Customs that any imported goods had been damaged or had deteriorated at any before or during the unloading of the goods in India, such goods shall be chargeable to duty in accordance with the provisions of Sub-section (2).   Sub-section (2) provides  that the duty is to be charged on the goods referred to in Sub-section (1) shall bear the same proportion to the duty chargeable on the goods before the damage or deterioration which the value of the damaged or deteriorated goods bears to the value of the goods before the damage or deterioration and Sub-section (3) of the Section 22 lays down the manner for ascertaining the value of the damaged or deteriorated goods at the option of the owner.   The value of such goods may be ascertained by the proper officer, or such goods may be sold by the proper officer by public auction or by tender, or with the consent of the owner in any other manner and the gross sale-proceeds shall be deemed to be the value of such goods.   In the instant case, these conditions are not fulfilled. The learned Appellate Collector of Customs has observed in the last para of his order that he had examined both the original and duplicate copy of the bill of entry and found that there was no report of survey or damages on these by the Shed Appraiser.    1 have got full sympathy for   the appellant.    But the provisions of Section 22 of the Customs Act,   1962 are mandatory.   The appeal   is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Calcutta Agfa-Gevaert India Ltd. vs Collector Of Customs on 2 April, 1985 Equivalent citations: 1985 (21) ELT 510 Tri Kolkata ORDER Harish Chander, Member (J) 1. Agfa-Gevaert India Ltd. had filed a revision application to the Additional Joint Secretary (Revision Application), Government of India, Ministry of Finance, Dept. of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-140451","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nAgfa-Gevaert India Ltd. vs Collector Of Customs on 2 April, 1985 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/agfa-gevaert-india-ltd-vs-collector-of-customs-on-2-april-1985-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Agfa-Gevaert India Ltd. vs Collector Of Customs on 2 April, 1985 - 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