1997 (1) TMI 305

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....neer who certified in June, 1989 that the goods were short. It then took up the matter with the suppliers representative in India. Subsequently, the supplier informed the appellant through its office in India, that the position had been verified with M/s. UBE (apparently the manufacturer of the goods) who confirmed that 4 items were short. These 4 items were subsequently sent to the appellant under a no charge invoice and cleared on payment of duty. Appellant thereafter claimed refund of the duty paid on the spares short shipped. The Assistant Collector (whose order has been confirmed by the Collector (Appeals) rejected the claim on the ground that the short shipment was noticed after the goods were out of Customs charge. 2. I have ....

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....law, the finding of the Collector (Appeals) that refund cannot be sanctioned solely for the reasons that the goods were out of Customs charge cannot be upheld. All the decisions cited by the advocate for the appellant in fact related to situations where the goods had already gone out of Customs charge. 4. I however agree with the Departmental Representative when he seeks to make a distinction between the standard of evidence required in cases where the goods have gone out of Customs charge and in that where they have not. In the latter, as he points out, the goods are available for verifications by the Customs. In the former, they may not be, and in this case they were not. His point that in such a situation, the possibility exists ....