TMI Blog2023 (3) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... d liability on the agent of the principle as well. It thus stands to reason that the process and procedure for assessment that is followed qua the principle, the importer in this case, would have to be necessarily followed in the case of the agent as well. In the present case, admittedly no notice has been issued to the clearing agent under Section 28. The argument of the respondents that mere imposition of liability does not require prior notice on the clearing agent is rejected straightaway for the reason that such mulcting of duty is itself bound by the requirement of proper procedure for assessment, as set out under Section 28 of the Act. It simply cannot be countenanced that a demand could be thrust on an entity without following du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Fancy Goods for short levy of Anti Dumping Duty under Customs Notification No.16 of 2016. The petitioner was not a party to these proceedings and had received no notices or communications from the respondents in this regard. 3.Out of the blue, the petitioner was in receipt of the present impugned order on 25.11.2019 confirming a demand of Anti Dumping Duty of a sum of Rs.32,14,738/- with applicable interest. The order in original does not refer to any opportunities extended to the petitioner for objecting to the proposal or to appear to be heard and a copy of the same though addressed to the importer under reference-1 had been issued to the petitioner under reference-2, as per Section 147(3) of the Customs Act, 1962 (in short 'Act& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Works Ltd., Chacki [(1999) 2 SCC 553], the assessee therein, Trivandrum Rubber Works, was the importer. The goods had been cleared through M/s.Achudhanpillai and company to their clearing agent. A notice had been served to the importer under Section 28 of the Customs Act and this notice addressed to the importer had been served on the clearing agent. 8.The importer was served with the same notice subsequently. The notice on the importer had been served beyond limitation whereas the notice addressed to the importer, but served on the clearing agent, was on the last date prior to the expiry of limitation. The importer challenged the notice on the ground that it was barred by limitation and the defence of the respondents was that since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered from the agent unless in the opinion of [Assistant Commissioner of Customs or Deputy Commissioner of Customs] the same cannot be recovered from the owner, importer or exporter.' 11.The provision makes it clear that the liability multed on the agent is a deemed liability and without prejudice to the liability of the owner, importer or exporter. The proviso states that where any duty is short levied, for any reason other than any willful act of negligence or default of the agent, the liability of the agent will kick in only where, in the opinion of the Assistant Collector of Customs, the duty cannot be recovered from the owner or importer. 12.The Hon'ble Supreme Court held that in order to proceed consequent on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the duty could not be recovered from the importer. Even a notice for recovery of duty had not been served on the importer on 9-10-1986. Notice has been served on the importer only later, on 14-10-1986, when such service of the notice was barred by limitation. The proviso to Section 147(3) does not contemplate a case where the claim against the principal, i.e., the importer is time-barred because of a default on the part of the Department itself. It refers to a case where a department after taking all necessary steps under the Customs Act, 1962 is, for some reason, unable to recover the duty from the importer or owner. That is not the case here. We have not been shown any reason why the notice could not be served on the importer withi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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