COMMISSIONER OF CUSTOMS, BANGALORE Vs. MAINI GRANITES LTD.

JUDGEMENT

(1.) THIS is a Revenue appeal against OIA No. 214/2003 -Cus., dated 28 -5 -2003. The Commissioner after due examination has passed the order in favour of the assessee in terms of Para 4 which is extracted herein below : I have carefully gone through the facts of the case including the written & oral submissions made by the Appellants. The facts of the case are that the Appellants had cleared granite slabs for exports from their factory at Tumkur and had cleared the consignment to ICD for export when the consignment met with an accident. Out of the total quantity of 624.38 sq. meters, the original adjudicating authority confirmed the demand in terms of Sec. 72(1)(d) of the Customs Act, which reads as under - Sec. 72(1)(d) where any goods in respect of which a bond has been executed under Sec. 59 and which have not been cleared for home consumption or exportation are not duly accounted for to the satisfaction of the proper officer,..........................................the proper officer may demand, and the owner of such goods shall forthwith pay, the full amount of duty chargeable on account of such goods together with all penalties, rent, interest and other charges payable in respect of such goods. As can be seen, this provision is to cover a situation where the goods have not been properly accounted. It is not the contention of the department that the goods are not accounted for rather the contention is that these were damaged. The Unit being 100% EOU is eligible to make clearance to the domestic tariff area. Some of the damaged tiles have been cleared on payment of appropriate duty. I am therefore of the view that the facts and circumstances of the case, do not warrant invoking of Sec. 72(1)(d). I therefore reject the Order -in -Original and uphold the appeal.

(2.) THE Revenue in their appeal memo contend that duty should have been paid on the goods not as waste or damaged ones but on the quantum of goods which were not exported. The department has proceeded to recover duty on those goods which have been damaged in transit. The assessee had paid duty on waste, which has not been accepted. In the grounds of appeal, Revenue has relied on the ruling rendered in the case of Pasupathi Overseas Pvt. Ltd. v. CCE - 1996 (88) E.L.T. 795 wherein the facts pertain to duty under Section 23 and it was held that it would apply in respect of goods which have been warehoused in the case of loss or destruction in respect of warehoused goods.

(3.) ON our due consideration we find that this is not a case of demand of duty under Section 23 and this judgment is distinguishable. The next citation referred in the grounds of appeal pertains to Union Carbide India Ltd. v. CC - 1985 (22) E.L.T. 102 wherein demands under Section 72 was upheld as the goods were not found in the warehouse. In the present case, it is not the case of the department that the goods were not found in the warehouse. Therefore this judgment is clearly distinguishable. The third ground raised by the Revenue is that when the assessee had claimed insurance on the damaged goods, they ought to have paid the entire duty on the damaged portion of the tiles.