2017 (4) TMI 1159

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....isposed 58 lots of un-cleared cargo, paying the customs duty assessed by the Import Group. Among the weight of 236.5 MTs arrived on transshipment from Chennai Port vide TSA No.1252/2010 dated 8.6.2010. This cargo was assessed to a duty of Rs. 11,61,874/-. It is further stated that the cargo was not weighed when it came into the possession of the appellants. On weighing the cargo before handing over the same to the bidder as per the conditions associated with auction, it was found that the total weight was only 107.82 MTs. The appellants refunded the excess paid customs duty pertaining to the quantity in excess of 107.82 MTs, which has been worked out to Rs. 6,32,175/-. The appellants did not provide any documentary evidence to prove that th....

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....ntity of 128.68 MT. The party M/s. Hey Day who cleared the goods in auction was billed only for the actual quantity of 107.82 MT as evidenced by the sale invoice issued to them and the weighment slips. He further submitted that the claim of refund was rejected on the ground that the shortage in weightage of the cargo vis-`-vis the declared quantity would only be treated as pilferage while the same was in possession of the custodian. As per Section 45(3) of the Customs Act, 1962, the custodian is liable to pay duty on such pilfered goods. Hence the amount paid in excess by the applicant could only be adjusted towards their liability under the Section and therefore, the net amount eligible as refund is nil. The learned consultant further subm....