TMI Blog1987 (1) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex-Bond clearance for home-consumption for the two remaining cases. These goods were also assessed under H. 84.63 CTA and were allowed clearance on payment of duty. 2. Meanwhile, with effect from 1-3-1981, H. 84.63 of BTN was split into sub-heading (1) (2). The rate of duty for sub-heading (1) was 60% + 20% whereas for sub-heading (2), the rate of duty was revised to 100% + 25%. The department, therefore, issued a L/C memo on 14-12-1981 u/s 28 Customs Act, 1962. The demand was confirmed on 14-10-1982. 3. The respondents - who were the importers - filed on appeal before the Collector of Customs (Appeals). The Collector allowed their appeal after condoning the delay, recording as follows :- Coming to the merits of the case, it is noticed that the Assistant Collector while confirming the demand originally issued had not given any reasons as to why the imported bushes were liable to be classified under Heading 84.63 (2) instead of their original assessment under Heading 84.63(1) of the Customs Tariff. The appellants moreover had produced evidence at the time of hearing to the effect that identical bushes imported by them earlier had been assessed to Customs duty under Heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19-6-1981. Shri Gopinath further argued that a reading of Sections 147 153 of the Customs Act would show that a notice could be served on the agent and this service would be equal to service on the principal. Shri Gopinath further submitted that the Customs House took all possible precautions by sending the demand notice well in advance of the limitation and, that too, by registered post acknowledgement due. He cited a judgement of the Madras High Court, in the case of B. Bhoormal Tirupati v. The Additional Collector of Customs, Madras, reported in AIR 1974 MADRAS 224 , and argued that the ratio of this judgement, especially at paragraph-3, squarely applies to the facts of the present matter. He also sought to support his argument, that the demand in this case was in time, by citing 1978 E.L.T. 3-547 Ker in the case of Chellappan v. Additional Collector of Customs and 1983 E.L.T. 2350 . 8. Shri Gopinath summed up his arguments saying that having sent a notice by registered post to the principal and having served a copy of the same on the agent, the demand was made in time according to law. 9. Shri V. Lakshmikumaran, the learned Counsel for the respondent submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ends after the goods were cleared, and there was no authority or authorisation to the clearing agent to receive notices on behalf of the principal. Under Section 147 (3), when any person is, expressly or impliedly, authorised by the owner, importer or exporter of any goods to be his agent in respect of such goods, for all or any purposes of Customs Act, such a person would be deemed to be the owner, importer or exporter of such goods for such purposes, without prejudice to the liability of the owner, etc. In this case, according to the learned Counsel, the clearing agent was not authorised to receive notices on behalf of the importer who is the appellant. Further, the words such goods occurring in the Sub-section denote that it is only in respect of the goods that are being imported and exported, and in respect of which, the principal has authorised the agent that the agent can do things prescribed by law, and once the goods are cleared, the authority ceases. He further emphasised that under the proviso to Sub-section (3) of Section 147, Customs Act, unless the short levy is due to any wilful act, negligence or default of the agent, the duty was not to be recovered from the agen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the relevant date, serve notice on the person chargeable with the duty which has not been levied or which has been so short-levied or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty has not been levied or has been short/levied or has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter, or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words one year and six months the words five years were submitted. (2) The Assistant Collector of Customs, after considering the representation, if any, made by the person on whom notice is served under sub-section (1) shall determine the amount of duty due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (3) For the purposes of sub-section (1), the expression relevant date means :- (a) in a case where duty is not levied, the date on which the proper officer makes an order for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the Customs Act, shall be served (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; sub-sec, (b) of S. 153 need not be referred to as it does not arise in this case. A notice had been sent by registered post duly addressed to the appellant. The section requires that notice shall be served by sending it by registered post to the person for whom it is intended. The section does not require that effective service should be effected by the appellant receiving it. This position is made clear by reference to Section 27 of the General Clauses Act, which states that where any Central Act requires any document to be served by post, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The normal presumption, unless the contrary is proved, is that the service shall be deemed to have been properly effected when a letter is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs, Calcutta , cited by the learned SDR before us, the Tribunal clearly observed examining Section 28 of the Customs Act, that a plain reading of the relevant provisions makes it clear that what is required to be accomplished within six months is not the issue of notice but service of notice on the person concerned. In this judgement, it is further held that the Post Office is treated as an agent of the sender and, therefore, the date of mere handling over of the registered letter, containing notice, to the Post Office would not be relevant but the date on which it is served on the addressee. We have noted the contents of this order passed earlier by the Tribunal. 19. We have also perused the order of the Madras High Court reported in 1983 E.L.T. 2350 (Mad.) in the case of Usha Enterprises, Madras, v. Government of India and Another . The Court held therein that show-cause notice served on the agent of the firm was valid and binding on the firm under Sections 110, 124 (a) and 147(3) of the Customs Act, 1962, and Section 229 of the Indian Contract Act. This judgement was cited by Revenue and Shri V. Lakshmikumaran cited another judgement of Madras High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for the Customs Department, submitted that by S. 12, the law enables the Customs Department to levy duty on goods imported. In this case, the goods were subject to levy of duty and, therefore, the petitioners are liable to pay the duty. He submitted that S. 147 of the Act made the agent also liable under certain conditions. According to him, Section 28 provides one of the remedies in addition to the right of recovery of duty properly leviable, under the ordinary law of the land, i.e., within 30 years from the date on which the duty became leviable. This contention cannot be accepted, for the Act itself, when providing for the levy of the duty, also specifies the manner in which it can be collected. The Customs Act is a Code which defines the procedure and will have to be followed for collecting the duty which had not been levied and the procedure prescribed under S. 28 of the Act will have to be followed. In order to take advantage of S. 28, the Assistant Collector should give notice to the person concerned within six months from the relevant date, and if he fails to do so he cannot fall back on the general law and try to collect the amount. It is furtile for him to contend that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the counter affidavit. In the counter affidavit the respondent has stated that as the Importer could not be served by post the demand is made as against the petitioners. Even assuming that the amount has not been factually collected from the importer or that the importer cannot be contacted by post, those circumstances will not be sufficient to attract the proviso to Section 147(3). The proviso seems to suggest that the liability of the importer can be passed on to his agent only if in the opinion of the Assistant Collector of Customs the same cannot be recovered from the owner. The expression cannot be recovered from the owner" would indicate that all steps for realisation of the differential duty should have been taken against the importer but it could not be recovered for some reason or other. It is clear from the expression used in the proviso that all possible steps for recovery of the differential duty have to be taken as against the importer and only when it is not possible to realise any amount from the importer the same cannot be recovered from the agent. But in this case the respondent has not averred that all steps to recover the amount from the importer had failed and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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