TaxTMI 
TaxTMI 
1983 (9) TMI 209
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....cate for the appellants pressed the claim on two grounds :- (a) Sub-section (1) of Section 22 of the Act provides for abatement of duty on damaged goods where it is shown to the satisfaction of the Assistant Collector that any imported goods had been damaged at any time after the unloading thereof in India but before their examination under Section 17, such abatement is mandatory, the manner of determination of chargeability to duty being in accordance with sub-section (2) of that Section. Sub-section (3)(a) provides that the value of such damaged goods may be ascertained by the proper officer. It is not expressly laid down in the Act that the ascertainment of the value of the goods should be prior to their clearance from customs control or while the goods were in the custody of customs. (b) Alternatively the counsel urged that in terms of Section 23 when goods have been destroyed any time before their clearance for home consumption, the Assistant Collector shall remit the duty on such goods. He claimed that in the facts and circumstances of the present case, the two dumpers have been so badly damaged that they should be considered as "destroyed" for purposes of this Section.....
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.... as "Dents, deep cuts, twisting, shearing, crushing, bending and breakage" and the cause of the damage as "falls or blows received whilst in transit". Though a team of technical staff and officials constituted by the management of the appellant company (Inspection Committee) gave a finding, "There is no possibility of repairing and utilising the two damaged SKDs and these have to be considered as a total loss and the claims with the Insurance Company may be proceeded accordingly." The Insurance Survey Report observed as follows : "During our inspections, we found that since the damage to both the units were extensive and similar, it would not be possible to assemble even one unit by interchanging the undamaged components, but economical repairs appeared to be a possibility at that stage of inspection. Major assemblies like engine, transmission, final drive, hoist and hydraulic suspension system were mostly intact and as the value of these assemblies were substantial, we felt that the possibility of economical repairing has to be analysed first. From the external visual inspection we felt that major assemblies had not suffered any appreciable damage and that if necessary, t....
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....half lakh of rupees more than what was offered at the time the surveyors discussed the matter with the appellant-company) and after obtaining the differential amount involved, released a cheque for U.S. dollar 6,40,640/- the rupee equivalent of which being Rs. 62,07,801.60 at that time.\ 6. From the above resume, it is clear that the damage was ascertained by the surveyors by inspection of the imported goods, a few months after their date of clearance from even Port Trust premises and after a transit by lorry from the Port area in Madras to K.G.F. in Karnataka had taken place. Economical repairs was considered a possibility but was given up as being limited by the practical situation existing in respect of the specialised equipment in the country and the fact that the appellant-importer was the only one who would be interested in any part of the goods even if salvaged. Even the price of the salvaged goods had been negotiated at some length; one gets the impression that the Insurance Company got what would be the best of a bad bargain and settled the claim for the damaged goods as a 'constructive total loss'. 7. To take the second contention of the advocate of the appellants f....
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.......... (2)............ (3)............the value of damaged...goods may be ascertained by either of the following methods at the option of the owner : (a) The value of such goods may be ascertained by the proper officer, or (b) such goods may be sold by the proper officer by public auction or by tender and the gross sale-proceeds shall be deemed to be the value of such goods." "45. Restrictions on custody and removal of imported goods :- (1) Save as otherwise provided in any law for the time being in force, all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Collector of Customs until they are cleared for home consumption...... (2) The person having custody of any imported goods in customs area....... (a)........ (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer." "47. Clearance of goods for home consumption :- where the proper officer is satisfied that......the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in r....