1. Appeal under Section 129 of the Customs Act, 1962 praying that in the circumstances stated therein the Tribunal will be pleased to order refund of duty of Rs. 16,599.26 paid on shortages.

2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri R. Sashidharan, advocate, for the appellants and upon hearing the arguments of Shri S.K. Choudhury, Senior Departmental Representative, for the respondent, the Tribunal makes the following.

3. The appeal is filed before the Tribunal against the Order-in-appeal No.C.3/1395/1980, dated 4-12-1981 of the Appellate Collector of Customs, Madras passed under Section 128 of the Customs Act, 1962, rejecting their appeal against the Order No. S25/1752/1980, dated 18-4-1980 of the Assistant Collector of Customs (Refunds), Custom House, Madras-1.

4. A consignment of 520 bags of High Density Polyethylene Sholex F. 5010 was imported ex-s.s. Panteleymon Lepenshinskiy and duty was paid under Bill of Entry D. 653, dated 12-10-1979. Survey conducted by the steamer agents before clearance of the goods revealed certain shortages. The claim for refund of duty was rejected by the Assistant Collector (Refunds), Custom House, Madras for the reason that shortages were brought to the notice of the Customs after the proper officer made the order for clearance for home consumption. The appeal against this was also rejected on the ground that provisions of Section 13 of the Customs Act, 1962 would apply. The subject appeal is against this order of rejection by the Appellate Collector of Customs.

5. The appellants case is that the provisions of Section 23(1) of the Customs Act, 1962 would apply. In support of the contention that in a case of pilferage also the provisions of Section 23(1) of the Customs Act, 1962 would be applicable, the decision of the Delhi High Court in the Siatkot Industrial Corporation, Meerut v. Union of India and Anr.-1979 E.L.T. 329 (Del.) was referred to. It was urged that this decision of the Delhi High Court is binding on us in the light of the decision of the Bombay High Court in the case of Commissioner of Income-tax, Vidharba and Marathwada, Nagpur v. Smt. Godavaridevi Saraf Tumsar, I.T. Ref. No. 336 of 1975, decided on 27-9-1977 (1978 E.L.T. J. 624) and the case of H.R. Syiem v. P.S. Lulla (1970 Bombay Law Reporter, p. 534). We have had occasion to examine this submission regarding the Sialkot Industrial Corporation case at length in the case of Bharat Electronics Ltd. v. Collector of Customs, Madras (Appeal No. CD(T)(MAS) 167/81)-1983 E.L.T. 653 decided by us on 15-2-1983 ; therein we have found that where goods are not available to an importer at the time of clearance for home consumption and the non-availability is attributable to pilferage, the provisions of Section 13 of the Customs Act, 1962, would alone be relevant. We, therefore, deal only with the citations now referred to by the learned counsel for the appellants in urging that we are bound by the decision of the Delhi High Court in the Sialkot Industrial Corporation case.

6. In the case of Godavaridevi Saraf referred to supra a Divisional Bench of the Bombay High Court was considering whether a decision of the Madras High Court declaring Section 140A(3) of the Income-tax Act as being viola-tive of Article 19(1)(f) of the Constitution of India could have been ignored by the Income-tax Tribunal sitting at Bombay. Kantawala C.J. observed :-

"8 . . ..Until a contrary decision is given by any other competent High Court, which is binding on a Tribunal in the State of Bombay, it has to proceed on the footing that law declared by the High Court, though of another State, is a final law of the land. When the Tribunal set aside the order of penalty it did not go into the question of intra vires or ultra vires. It did not go into the question of constitutionality of Section 140A(3). That section was already declared ultra vires by a competent High Court in the country and an authority like an Income-tax Tribunal acting anywhere in the country has to respect the law laid down by the High Court, though of a different State, so long as there is no contrary decision of any other High Court on that question."

Relying on the words "an authority like an Income-tax Tribunal acting anywhere in the country has to respect the law laid down by the High Court, though of a different State, so long as there is no contrary decision of any other High Court on that question", the learned counsel for the appellants wants us to hold that the law declared by a High Court in the country is binding on every Bench of the Customs, Excise and Gold (Control) Appellate Tribunal wherever it may be sitting. We find that the learned counsel is relying on a sentence in the Judgment out of context. His Lordship the Chief Justice was dealing with a section of the Income-tax Act which was declared ultra vires the Constitution ; he found that until that decision was differed from by any other High Court, or modified by the Supreme Court, it would have to be followed by all authorities including those in the Income-tax Tribunal at Bombay, as it would be anomalous to have the possibility of the Income-tax Tribunal sitting at Bombay trying to enforce the provisions of Section 140(A)(3) in its jurisdiction whereas it would not be possible to do so by a Bench silting at Madras, which would, in any case, be bound by the decision of the Madras High Court. We are strengthened in this view by the observation of the Division Bench of the Bombay High Court in the case of H.R. Syiem v. P.S. Lulla. In that case, the Court was considering the classification of black insulating tapes for purposes of restrictions under the Import Trade Control Act, 1947 read with Section 111(d) of the Customs Act, 1962. The issue was whether a classification arrived at by the Madras High Court in another case was binding on the Assistant Collector of Customs at Bombay. In this connection, Vimadlal J. observed :-

" . .reliance was placed on the decision of a Division Bench of this Court in the case of Commissioner of Income-tax v. M/s Chimanlal J. Dalai & Co., in which it was stated (at pp. 347 and 352) as the general practice of this Court to follow the decisions of other High Courts in Income-tax matters. It must, however, be noticed that this rule has been stated as being merely a rule of "policy" or "practice" which this Court has followed, and that too in Income-tax matters only. It cannot be applied as a uniform rule to be followed in the case of decisions relating to any and every all-India enactment, of which there are so many. Indeed, if that were the view, the same principle would apply even to decisions relating to enactments like the Code of Civil Procedure. The Customs authorities must, no doubt, respect the decisions of all High Courts, but they cannot be bound by the decision of every High Court. If they were to be bound by the decision of every High Court, a strange situation would aiise in cases in which different High Courts have taken different views on a point that arises before a Customs authority. The Assistant Collector has given his reasons for not taking the view taken by the Madras High Court in Rikabdosss case. I do not think that the mere fact that there was a decision of the Madras High Court in favour of the present respondent can be of any assistance to him for the purpose of seeking the interference of the Court on this petition."

7. It is thus clear that the Bombay High Court has itself distinguished two aspects-(1) that an earlier decision regarding the Income-tax Act need not necessarily be followed in the case of the Customs Act, 1962 and (2) that a decision of another High Court is not necessarily binding on an administrative authority in the jurisdiction of the Bombay High Court.

8. The learned counsel for the appellants relied on the observations of Kotwal S.P., CJ, to whom the case supra was referred on a difference of opinion between Tarkunde and Vimadlal JJ :

" . .Thirdly, the learned Collector made a patent error in declining to follow the Madras case by which he was bound. The Collector sought to distinguish it on the short ground that "As far as Bombay Custom House is concerned there has been no previous practice of permitting the clearance of such goods under licence issued against Sr. No. 38/11 of the I.T.C. Schedule. In case of earlier two consignments the licences were not accepted straightaway but as a special case on a warning." In giving this as the reason for not following the Madras case the Collector made a patent error and missed the whole point of the Madras decision."

A reading of the passage as a whole makes it clear that His Lordship was not laying down a proposition of law that the Assistant Collector was bound by the Madras case invariably but referred to a patent error in the order of the Assistant Collector at Bombay in not following the decision of the Madras High Court. Earlier His Lordship had set out the facts which led His Lordship to conclude that there was a patent error in incorporating the Entry No. 38 of Part II of the Import Trade Control Schedule. This is made clear if we consider the observations of His Lordship the Chief Justice which appear a little later in the judgment-

"Here in the present case I have pointed out that in my opinion the refusal of the Collector to follow the Madras decision was something which no reasonable man would do quite apart from the fact that the view which he had taken that "adhesive tapes" is only a compendious description of a number of categories of goods and not a marketable commodity is itself "demonstrably absurd to quote the Madras case."

9. In the result, we hold that the decision of the Honble High Court, Delhi is not binding on this Tribunal and for the reasons given in detail in the appeal of Bharat Electronics Ltd. v. Collector of Customs, Madras (Appeal No. CD(T)(MAS) 167/81)-1983 E.L.T. 653, the provisions of Section 13 of the Customs Act, 1962 will appply in this case.

The appeal is dismissed.