2001 (9) TMI 425

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....Bill of Entry on 16-6-1997 for clearance of goods imported by them and opted for green channel facility; that after the assessment, the customs duty amounting to Rs. 3,96,175/- was deposited by the Respondents; that when the Respondents went to take delivery of the goods the goods were found missing from the boxes; that the Respondents filed a refund claim of the duty on 8 pieces of rubber strap moulds on 24-4-1998; that the Asstt. Commissioner vide Order No. 63/98 dated 3-12-1998 rejected the refund claim being time barred; that, however, the Commissioner (Appeals), under the impugned order, has allowed the appeal filed by the Respondents holding that the Respondents were not liable to pay duty on the pilfered goods in view of the provisio....

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....ortage found in the goods imported by them. He relied upon the decision in the case of Cawasji Behramji & Co. v. U.O.I., 1984 (16) E.L.T. 241 (Bom.) wherein it was held that a certificate of short landing of goods from the steamer agent before claiming remmission/refund of duty is not required in the case of pilferage of goods under Section 13 of the Customs Act. He also relied upon the decision in the case of Prakash Pipes & Industries Ltd. v. Collector of Customs, 1992 (59) E.L.T. 437 (Tribunal). Finally, the learned Advocate submitted that the Airport Authority has also been issued with a show cause notice on 6-1-1998 by the Customs Department for demanding the duty under Section 45(3) of the Customs Act; that when duty has been demanded....

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.... and before the proper officer has made an order for clearance for home consumption or deposit in a warehouse the importer shall not be liable to pay the duty on such goods except, where such goods are restored to the importer after pilferage." It is not in dispute that the Customs has assessed the Bill of Entry and the Respondents have paid the duty in June, 1997 itself. According to the learned D.R. the respondents had gone to take the delivery of the goods after the "out of Customs Charge Order" was passed. Once the proper officer had made the order for clearance, provisions of Section 13 of the Customs Act cannot be made applicable in view of the specific provisions contained therein. There is no force in the submissions of the learn....