Appeal allowed, case remanded for refund consideration. Emphasized Section 23(1) for lost goods remission.

The Tribunal allowed the appeal, remanding the case for the Assistant Collector to consider the refund claim based on the documents provided by the appellants. The decision emphasized that when goods are lost before clearance for home consumption, remission under Section 23(1) is applicable, and further expenses need not be incurred to establish loss.

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Issues:
1. Refusal of survey by Customs before payment of duty.
2. Denial of remission and refund of duty based on the timing of survey.
3. Interpretation of Section 23 of the Customs Act regarding remission.

Analysis:
The appeal was against an Order-in-Appeal passed by the Collector of Customs (Appeals), Bombay. The case involved the import of Shower Safety Treads in 1983, which were bonded in a warehouse due to a duty dispute. The appellants requested a survey by Customs before payment of duty to assess damage, but the request was refused. Duty was paid on one carton, which was cleared, while the other carton was found to be a total loss due to damage. The Assistant Collector denied remission and refund of duty, citing Section 23 of the Customs Act. The Collector (Appeals) upheld this decision, stating that the goods were abandoned after the out of charge order, making them liable for duty payment.

Upon review, the Tribunal found that the Customs refused the survey before duty payment, leading the appellants to pay duty to clear the goods. A joint survey later confirmed the total loss of one carton. The Tribunal disagreed with the Assistant Collector's interpretation of Section 23, stating that the goods were not cleared for home consumption despite the out of charge order, making the remission applicable. The Tribunal highlighted that the goods being unusable amounted to a total loss to the importer, justifying remission under Section 23(1) of the Customs Act.

Regarding the Collector (Appeals) decision on Section 23(2) of the Customs Act, the Tribunal ruled that since the goods were deemed a total loss before clearance, Section 23(1) applied, making Section 23(2) irrelevant. The Tribunal allowed the appeal, remanding the case for the Assistant Collector to consider the refund claim based on the documents provided by the appellants. The decision emphasized that when goods are lost before clearance for home consumption, remission under Section 23(1) is applicable, and further expenses need not be incurred to establish loss.

In conclusion, the Tribunal's decision favored the appellants, acknowledging the total loss of goods before clearance and granting remission under Section 23(1) of the Customs Act. The case highlights the importance of timely surveys for damage assessment and the correct interpretation of statutory provisions for duty remission in such circumstances.

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