Per Justice U.L. Bhat :

By this application, the appellant/applicant has prayed that the Tribunal may take adequate steps and pass appropriate orders and save the applicant from unnecessary litigation and harassment. The application is opposed by Shri M. Ali, JDR.

2. The appellant/applicant imported a consignment of high frequency induction furnaces from United Kingdom. The invoice bears the date 15.11.1978. On 28.11.1979 the goods were bonded in the public bonded warehouse. On 10.4.1982, the appellant filed ex-bond Bill of Entry for clearance, visited the warehouse and found the goods damaged. On 15.4.1982, the appellant/applicant applied to the Assistant Collector for survey of the goods for the purpose of assessing the damage and the Assistant Collector on the very next day informed the appellant that the request is granted subject to the condition that no abatement of duty will be granted on damage or loss, if noticed during the survey. Duty was paid on 22.4.1982. On 23.4.1982, the surveyor M/s. Ravinder Kumar and Company surveyed the consignment under the supervision of customs staff. The report of the surveyor dated 23.4.1982 referred to the damage and the present value of the damaged equipment as Rs. 3.5 lakhs. On the same day, the Appraising Officer made a note to the effect that the consignment was inspected and opened, the goods were rusted and some parts were badly damaged and were in deteriorated condition and that there was oil leaking from the transformer. Immediately after payment of duty, the appellant filed an application before the Assistant Collector for refund of duty on the ground of damage while the goods were stored in the bonded warehouse. The application was dismissed on the ground that the goods did not qualify as "warehoused goods" and, therefore, the abatement was not allowable. He also relied on the condition put by the Assistant Collector while allowing survey to the effect that no abatement will be allowed. The Collector (Appeals) set aside this order on the ground that the Assistant Collector did not follow the procedure under Section 22 (2) (c) of the Customs Act, 1962. After remand, the Assistant Collector again rejected the claim on the ground that the survey report did not indicate the value of the damaged goods, that the survey was not held under the Assistant Collector's supervision and the goods in question did not qualify as "warehoused goods" as no extension in the warehousing period was given and the appellant had not given valid reason to extend the period. This order was confirmed by the Collector (Appeals). Thereupon the appellant filed appeal No. C/3603/87-A before the Tribunal.

3. The Tribunal proceeded on the basis that the condition put by the Assistant Collector that the request seeking survey is allowed subject to the condition that no abatement will be granted, was illegal. The Tribunal held against all the reasons given by the Assistant Collector in rejecting the request for refund. On the question whether the goods qualified as "warehoused goods", the Tribunal held that when the goods were warehoused, the law prescribed period of three years for warehousing the goods, though it was cut down to one year subsequently and the goods qualified as "warehoused goods". In regard to the reason that the survey was not held under the supervision of the Assistant Collector, the Tribunal referred to the communication dated 16.3.1982 which clearly indicated that survey will be conducted in the presence of the Appraising Officer and the fact that survey by the surveyor and the inspection by the Appraising Officer were conducted on the same day, namely, 23.4.1982. In regard to the third ground that the value of the damaged goods was not indicated in the survey report, the Tribunal noted that the Appraising Officer who noted the damage did not value the goods, but the survey report clearly mentioned the value of the damaged goods as Rs. 3.5 lakhs. Thus all the reasons which weighed with t