1983 (5) TMI 252 - AT - Customs

Tribunal shifts burden of proof to Assistant Collector in duty refund claim investigation

The Tribunal directed the Assistant Collector to investigate the pilferage claims of imported goods and verify with the Port Trust and Police Authorities. ... - Issues:1. Duty refund claim for pilfered goods.2. Rejection of refund claim by Assistant Collector and Appellate Collector.3. Contention regarding lack of evidence for pilfered goods.4. Responsibility for custody of imported goods.5. Onus of proof under Section 13 of the Customs Act, 1962.Analysis:1. The case involves a duty refund claim for pilfered goods imported under Bill of Entry No. DI 626. The appellants paid duty for 31 bundles of mild steel angles, but only 24 bundles were discharged, with 11 bundles reportedly pilfered. The Port Trust issued a short-landing certificate for the missing bundles, leading to a refund claim for the countervailing duty paid by the appellants.2. The Assistant Collector rejected the refund claim as unsubstantiated due to the appellants' failure to submit required documents, including the Police Report and other declarations. The Appellate Collector upheld this decision, citing lack of evidence and failure to produce necessary documentation as reasons for rejection.3. The appellants contended that the Port Trust had confirmed the pilferage and endorsed the number of cleared bundles on the Bill of Entry. They argued that no survey was needed as the pilferage was detected by the Port Trust and reported to the Police Authorities. The appellants asserted that there was sufficient evidence to establish the pilfered goods' quantity.4. The Tribunal highlighted the responsibility of the Port Trust for the custody and removal of imported goods under Section 45. It noted the appellants' consistent claim that 11 bundles were pilfered by the Port Trust, emphasizing that under Section 13, duty is not payable if goods are pilfered before clearance. The Tribunal found the Department's lack of inquiry into the pilferage concerning and directed the Assistant Collector to conduct necessary enquiries with the Port Trust and Police Authorities to verify the pilferage claims.5. The debate centered on the onus of proof under Section 13 of the Customs Act, 1962. While the appellants argued that the Department could have verified pilferage from the Port Trust and Police Authorities, the Department contended that the burden of proof lay with the appellants. The Tribunal emphasized the need for proper investigation to ascertain the truth behind the pilferage claims and directed the Assistant Collector to conduct necessary inquiries for a fair decision on the refund claim.