TaxTMI 
TaxTMI 
1996 (3) TMI 281
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....ecorded on the Bill of Entry, but the value of the machine was not appraised. However, the goods were cleared on payment of duty of Rs. 12,26,589.45 on full value, without abetement. Thereafter, the respondent`s insurer arranged survey in its factory by Steamer Agents and Insurance Company who fixed the value of damaged goods at Rs. 4,00,000/-. Respondent thereupon filed claim for refund of proportionate duty under Section 22 of Customs Act, 1962 (for short, the Act). The Assistant Collector rejected the claim on the ground that the respondent had not taken any steps to fix the value of the damaged goods at the time of examination by the proper officer under Section 22(3) of the Act. Respondent challenged the order before the Collector (Appeals) who allowed the appeal and directed reassessment on the basis of the value fixed by the surveyors and to grant consequential relief to the respondent. This order is now being challenged by the Department. We have heard both sides. 2. It is contended on behalf of the appellant that there was nothing in the customs examination report nor in the importer`s application to indicate that any internal damage was suspected, that the respond....
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....the decision holding as follows :- "........ all that Section 22 of the Customs Act requires an importer to do is to show to the satisfaction of the Assistant Collector that the goods had been damaged. There is no other procedure laid down in section which is required to be followed by the importer........ Again, we notice from the section that there is no such requirement laid down therein that importer must specifically ask for abatement in value. When an importer makes a report of damage to his goods to the customs, the obvious purpose of such a note is to claim duty assessment on the reduced value of the damaged goods. Once an importer makes such a report, which the appellants in this case had done, sub-section (1) of Section 22 requires that the damaged goods "shall" be chargeable to duty in accordance with the provisions of sub-section (2). The Section leaves no option to the customs except to assess the damaged goods on the basis of the reduced value arrived at according to sub-sections (2) and (3). We hold that once the appellants had informed the Customs that their goods had suffered damage, it was incumbent on the Department to assess the value as per the provisions....
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....orm the respondent. The respondent waited for a few days and in the absence of any word from the Assistant Collector, decided to clear the goods so that the goods could be removed to the factory where survey could be arranged . In the facts and circumstances of the case, the respondent had no other course to adopt. The respondent followed this course, but in doing so, committed a mistake in not giving notice to the Assistant Collector of the proposed survey so as to enable the officer either to be present himself or depute a technical representative to be present at the time of the examination and survey. In the light of the failure of the Assistant Collector to perform his proper statutory duty, the mere failure of the respondent to give advance notice to the Assistant Collector of the survey after clearance cannot result in the survey report being regarded as ineffective or devoid of value. The result cannot be to brush the reports aside at the instance of the Department which has been in default. 7. The survey after clearance was conducted at the instance of their Insurer. It was not suggested before the Collector (Appeals) or in the memorandum of appeal before the Tribu....
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....985. The survey was conducted without informing the customs officers and in their absence. The interim report indicates that case 1/4 contained the Charmilles D440 Machine with seven main components. Case 2/4 contained Dielectric Reservoir System complete with filters and pumps and cases 3/4 and 4/4 contained Charmilles generators with adaptive CNC controls two cabinets. The following were noted :- Goods in packages In sound condition. 2/4, 3/4 and 4/4 () Goods in package 1/4. - (1) Co-ordinate work table found jammed in both axis indicating possible bending of both the screws due to impact when the machine fell on its side. Protective bellows along with sheet metal sliding damaged. (2)  Work tank body badly pressed. The work lamp was broken from the hold. (3)  Isocut motor damaged. The non-metalic body broken at the holding portion. Bekelite portion of cords broken. (4)  The cover of the backslide motor pressed on the fan. (5)  DRO scale on transverse slide out of line. (Due to space restriction exact damage could not be observed). &n....
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....achine can be rectified or has to be abandoned, the complete equipment has to be returned to the manufacturer at Geneva who alone can do the job with their engineers and facilities. 13. Visual examination by Customs Officers revealed damage to the Electrical Discharge Machine in case No. 1/1. The surveyor visually examined the contents of case No. 1/1 before clearance agent noticed indications of serious damage. They could not examine the machine in detail for want of facilities in the Port premises. They instructed the clearing agents to despatch the case to importer's factory where detailed examination could be conducted. Detailed examination conducted soon thereafter confirmed indication of very serious damage to the contents of case No. 1/1. This has seen in the report dated 10-1-1985. Even at that stage the extent of internal damage could not be asssessed as no facilities were available in India to do so. Repair work could be attended, if at all, only by the manufacturer. It was further stated that the testing the unit as an integrated machine, the entire unit would have to be sent back to the manufacturers. The machine has been designed for high accuracy and high effi....