K. Gopal Hegde, J.

1. The Order of the Court is as follows :-

The appeal No. 47/78 arises out of the Order-in-Appeal bearing No. S/49-961/77M dated 24-2-78 passed by the Collector of Customs (Appeals), Bombay.

2. The Appeal No. 67/78 arises out of the Order-in-Appeal bearing No. S/49-1239/77M dated 20-3-78 passed by the Appellate Collector of Customs, Bombay.

3. The appellants in both the appeals are M/s. Philips India Ltd. The respondent is the Collector of Customs, Bombay. As common questions of facts and law are involved this common order.

4. The appellants imported 1 case of Stamping Paste which is the subject matter of appeal No. 47/78.

5. The appellants imported 2 Pallets Polyacetal Moulding Powder which is the subject matter of appeal No. 67/78.

6. The appellants entered two Bs/E and also paid Customs duty. Both the consignments landed and out of charge orders were also issued but they were found missing when they were in the custody of the Port Trust Authority. When the appellants could not get physical delivery they made separate applications for refund of the duty paid by them in respect of the two consignments. Their claims were rejected by the Assistant Collector MCD on the ground that they were not substantiated. On appeal, the Collector (Appeals) confirmed the order of the Assistant Collector on the ground that the appellants have not been able to produce the necessary documents in support of their claim in spite of opportunities having been given to them. Feeling aggrieved the appellants preferred two separate Revision Applications before the Central Government and they stood statutorily transferred to the Tribunal.

7. During the hearing of the appeals Shri Mehta for the appellants submitted that though the consignments landed they could not take delivery as they were found missing when they were in the custody of the Port Trust Authorities. Shri Mehta submitted that the Port Trust authorities took considerable time to issue non-delivery certificates. Therefore they could not produce the certificates before the Assistant Collector and the Collector (Appeals). The appellants however had produced the certificates issued by the Port Trust Authorities Bombay one dated 12th December, 1980 relating to Appeal No. 47/78 and another dated 6-1-1978 relating to Appeal No. 67/78. The appellants also produced a letter dated 4th February 1978 issued by the Dy. Manager, Indira Dock in appeal No. 67/78. The certificates as well as the letter written by the Port Trust authorities established that the two consignments were found missing when they were in the custody of the Bombay Port Trust who are the agents of Customs in respect of the imported goods and that the Port Trust authorities have lodged a complaint with the Jurisdictional Police on the assumption that the consignments were stolen. These complaints were also lodged in the year 1978. The appellants submitted that even though six years have elapsed the Port Trust authorities have not reported that the consignments were traced. The appellants for all practical purposes have lost the consignments. Therefore, they became entitled for refund of the duty paid. Shri J.M. Jain for the Respondent Collector in both the appeals however urged that the appellants have failed to produce proof that the theft or pilferage had taken place before the out of charge order was passed and as such no refund is permissible under Section 13 of the Customs Act, 1962 (to be hereinafter referred to as the Act). Shri Jain further submitted claim under Section 23 (1) is also impermissible in the absence of evidence as to the total loss or total destruction and theft or pilferage would not fall within the ambit of Section 23(1) of the Act. He therefore prayed that the appeals may be dismissed.

8. Considered the submissions made on both sides There that both the consignments had landed and they were found missing when they were in the custody of the Port Trust authorities The were not given physical deli