TaxTMI 
TaxTMI 
1990 (7) TMI 260
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....pellants' claim for refund of the duty amount, on account of the shortage in the consignment. 2. The appellants imported one crate containing various articles and sought for its clearance by filing a Bill of Entry, and also paid the requisite duty as assessed thereon. The duty amount was paid on 6-1-1982 vide Cash No. 1776. The actual delivery of the consignment was taken on 8-1-1982, and the same was taken to Ghaziabad. There on conduct of survey, some shortage in the articles was noticed and it was suspected that there was a pilferage. The appellants thereupon filed a complaint of theft with the Yellow Gate Police Station at Bombay on 30-1-1982. On investigation in the complaint filed, the Police authorities are reported to have recove....
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.... crate, but rejected the appeal so far as the same related to the refund on account of shortage, holding that the same was never brought to the notice of the customs authorities. 3. Dr. Garg, the Director of the appellant company, submitted that though no intimation of the shortage was given to the Customs authorities before out of charge order was passed, a complaint was lodged with the police, as early as 30-1-1982, who duly investigated into the matter and succeeded in recovering part of the articles stolen from the docks or from the persons connected with that, which duly indicated that the pilferage had taken place while the crate was lying in the docks. He also submitted that he did inform the BPT authorities and also lodged a prov....
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....what is required to be examined first is whether the said claim of the appellants is substantiated. 6. The appellants, though pleaded pilferage, after landing but before clearance, have not intimated about the same to the Customs authorities nor have they obtained any certificate from the BPT authorities. All the same, they have brought on record, the complaint filed by them before the Yellow Gate Police Station, exercising jurisdiction over the area, and have produced documents showing that the police had recovered some of the items as unclaimed from the Dock itself, and the same, under the order from the Metropolitan Magistrate, has been returned to the appellants and hence there remains hardly any scope to doubt to hold that the pilfe....
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....e importer shall not be liable to pay the duty leviable on such goods except where such goods are restored to the importer after pilferage." The plain reading of the section does not indicate that the factum of pilferage ought to be brought to the notice of the Customs officers before obtaining out of charge order and clearance. The propriety and rationality however require that the same ought to be done, as otherwise, there could be possibility of manifold malpractices and there could be nothing wrong in the Departmental authorities in ascertaining and at times insisting thereon. But in certain specific cases when a very strong evidence is otherwise available, insistence therefor, and rejection of the claim, in absence thereof may not b....