R.JAYASIMHA BABU, J. - (1.) THE question referred to us at the instance of the assessee is as to whether a claim for refund of duty on account of pilferage is covered by the provisions of sub-section (1) of Section 23 of the Customs Act, 1962. THE question arose in the background of the fact that when a survey was taken of the goods which had been imported by the assessee on 1-4-1977 after the order of clearance for home consumption had been obtained by the assessee on 24-3-1977, that survey having been made in the presence of the Customs Officer it was found that there was a shortage in the quantities the packages having been found to be open, the assessee claimed the benefit of Section 23 of the Act on the ground that the shortage which was due to pilferage amounted to loss and therefore, under the provisions of Section 23 of the Act which provides for remission of duty on lost, destroyed or abandoned goods, the assessee was entitled to remission. THE claim that so made was rejected by the authorities and the rejection upheld by the Customs, Excise and Gold (Control) Appellate Tribunal. THE rejection of the claim was on the ground that the loss being attributable to pilferage and there being a specific provisions regarding the duty on pilfered goods under Section 13 any claim could only be under that provisions and not under Section 23.
(2.) THE Tribunal while reaching that conclusion considered the fact that Section 13 was a provision which could not be rendered redundant or otiose by showing Section 23 as to include therein contingencies specifically dealt with in an earlier provision namely Section 13. It also held that in the past the revenue had consistently been regarding the two provisions as mutually exclusive. Learned Counsel for the assessee submitted that having regard to the language employed in Section 23 of the Act, the word used therein being 'lost or destroyed pilferage would fall within the scope of the provision as the result of pilferage is loss to the owner of the goods. In so far as the owner is concerned, the goods are lost to the owner. Counsel also placed strong reliance on the decision rendered by the learned Single Judge of the Delhi High Court in the case of Sialkot Industrial Corporation v. Union of India and Another reported in 1979 (4) E.L.T. (J 329) - The view taken in that decision was that Section 13 provides for grant of relief at a stage before an order for clearance for home consumption or deposit in a warehouse has been made while Section 23 comes into play after the duty has been paid and an order of clearance for home consumption has been passed but before the goods are actually cleared. Section interpreted was to include cases of pilferage as well. Having perused the decision relied upon we are not persuaded to accept that Section 23 was intended to take within its ambit cases of pilferage for which specific provision had been made by Parliament in Section 18(13) of the Act. It is a basic rule of construction of statute that every provision contained in the statute should be assigned a meaning and given effect to, as the presumption is that the legislature did not intend to enact anything which was redundant or otiose and that the provisions of statute are always required to be construed harmoniously so as to effectuate each and every part thereof - Section 18(13) is captioned 'Duty on pilfered goods' and reads thus : "If any imported goods are pilfered after the unloading thereof 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 leviable on such goods except where such goods are restored to the importer after pilferage."
(3.) THE situation contemplated in the provision is pilferage occurring after the unloading of the goods and before the making of an order for clearance for home consumption or deposit in a warehouse. In respect of such pilferages the importer is relieved of the liability for payment of duty except where such goods are restored to the importer after pilferage. Section 23 of the Act is captioned Remission of duty on lost. Destroyed or abandoned goods. That provision as it stood at the relevant time read thus : Where it is shown to the satisfaction of the Asstt. 23(1) Collector of Customs that any imported goods have been lost or destroyed, at any time before clearance for home consumption the Asstt. Collector of Customs shall remit the duty on such goods. The owner of any imported goods may at any time before an (2) order for clearance of the goods for home consumption has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon. Thus the provision deals with goods which are abandoned by the importer as also goods which are lost or destroyed at any time before the clearance for home consumption. The loss or destruction if it had occurred before clearance for home consumption would entitle the importer to remission of duty in respect of such goods. The loss or destruction must be of imported goods. ;