Customs, Excise and Gold Tribunal Tamil Nadu Iti Ltd. vs Cc on 30 July, 2002 Equivalent citations: 2002(84)ECC576 ORDER S.L. Peeran, Member (J) 1. The appellant, a PSU of Govt. of India, is aggrieved with the rejection of their refund claim filed in respect of goods which were pilfered when the same were still within the area of M/s. International Airports Authority of India (IAAI), the custodian of the cargo. There is no dispute regarding pilferage of 480 numbers of IC, on which duty of Rs. 2,32,438 had been paid. They prayed refund of this amount as the goods had not yet been removed from the custodian of goods, namely, IAAI and that there was a mahazar undertaken by the surveyor, who by their report dated 16.2.94 recorded about the pilferage of the item on which the duty had already been paid. Appellants have explained that their company being a Govt. unit, they are permitted to make the payment of duty before the goods are checked and taken in possession as against the procedure of having the goods checked and duty paid. They further contend that in terms of Section 13, my imported goods which are pilfered after unloading thereof and before the Proper Officer has made an order for clearance for home consumption or deposit in the warehouse, the importer shall not be liable to pay duty, leviable on such goods except where such goods are restored to the importer after pilferage. They have also drawn the attention to Section 23 of the Customs Act which also lays down the provision for remission of duty on loss, destroyed, or goods which are abandoned before the clearance for home consumption and in such circumstances, the Asst. Commissioner of Customs shall remit the duty on such goods. It is stated that the goods had not been cleared and the Insurance Survey was conducted in the presence of the officials of the custodian of the cargo i.e. IAAI and the survey was also recorded in the Survey Report of IAAI. M/s. IAAI had informed the Customs Officers about the survey being done. They also contended that they had not received any insurance money on the duty paid but only on the value on the goods which were pilfered. They also contended that the finding recorded by the authorities that they are not eligible for refund as the goods were cleared and survey was conducted thereof and that refund of remission of duty on goods found out after the pass order was given being not admissible is not correct interpretation of law. They contended that the further finding that no customs officer was associated with the survey and finding of the Ld. Commissioner (Appeals) that refund was hit by mischief of unjust enrichment was also not correct as the insurance company has not reimbursed them the duty paid on the pilfered goods not it was passed on to the insurance company as held by the Commissioner (Appeals). They further contended that as there was no dispute made out with regard to pilferage and duty element having been paid, therefore their claim is clearly sustainable. They further submitted that as there was no incidence of duty which has not been passed on to the insurance company, their claim is justified and refund should be allowed. They have filed all documents like Bill of Entry, documents to show the arrival of the goods, permission made by their clearing & forwarding agent to the AC on 14.2.94 seeking survey of the parcel received by flight and survey report dated 16.2.94 which clearly held that "adhesive tape joining the two flaps was found peeled off. One side was found cut off' and there was a pilferage of the item. They have also produced the letter of Indian Airlines dated 24.3.94 informing them that when the item landed, it was in good condition. They have also relied on the letter of IAAI dated 25.4.94 about the receipt of the item in good condition and also about loss of weight after the package was kept in the warehouse. They have also referred to another letter dated 18.6.94 of IAAI about the FIR lodged with police authorities with regard to loss of contents from one package of the said consignment. Reference is also made to the standing order No. 54/95 dated 21.12.95 issued by the Commissioner of Customs, New Delhi pertaining to submission of pilfered goods. The said Public Notice clearly lays down that refund is availableafter the payment of the duty provided it is shown that the survey was done when the goods was still in the custodian of the customs, after due verification by the AC (Refunds). They have also produced a letter dated 16.1.95 of United India Insurance Co. Ltd. which has made payment only with regard to value of the goods but not duty paid by them. Reference is drawn to the Tribunal's ruling rendered in Tajmahal Hotel v. CC Bombay (T), wherein it has been held that remission of duty is permissible under Section 23(1) of the Customs Act, 1962 where the goods were found to be pilfered even after the order for clearance for home consumption is ma