TMI Blog1979 (6) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ere crude drugs as declared, allowed clearance on payment of the import duty at 100% and surcharge of 10% under I.C.T. item No. 9(3) on the G.I.F. value which altogether came to Rs. 6403.18. 2. Subsequently on 29-4-1964, the Deputy Superintendent, Customs House, Nagapattinam, issued a demand notice for a sum of Rs. 17,486.63 from the importer as differential duty on the ground that the goods cleared are assessable at the tariff value of Rs. 350 per quintal under Item 9(3) of the Indian Customs Tariff at 100% ad valorem. The importer sent a reply on 18-7-1964, stating that the goods imported by him have correctly been assessed under Item 9(3) of the I.C.T. on the G.I.F. value and that the same cannot be assessed on the tariff value of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners as persons who cleared the goods on behalf of the importer on 19-8-1972. The importer did not again respond to the show cause notice but the petitioner sent a reply on 9-9-1972, denying his liability. Subsequently a final order was passed on 24-10-1972, holding the importer liable to pay a sum of Rs. 17,486.63, being the differential duty. But as the importer did not pay the amount demanded till 1977, a demand for the same sum was served on the petitioner on 30-5-1977, invoking Section 147 of the Customs Act. Aggrieved against the said demand, the petitioner has approached this court seeking a writ of certiorari to quash the said demand. 5. The validity of the said demand served on the petitioner on 30-5-1977 has been chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer could not be served by post, the liability can be fasted on the clearing agents. The question therefore arises as to whether Section 147 of the Customs Act can be invoked in this case so as to fasten the liability of the importer on the clearing agent. The relevant portion of Section 147 is in the following terms- "Proviso to Section 147 (3) : Provided that where any duty is not levied or is short-levied or erroneously refunded on account of any reason other than any wilful act, negligence or default of the agent such duty shall not be recovered from the agent unless in the opinion of the Assistant Collector of Customs the same cannot be recovered from the owner, importer or exporter". 7. Admittedly the primary liability to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 they are left with only the agent. The fact that there is some difficulty in contacting the importer by post will not, in any sense, mean that the amount could not be realised from him. According to the learned Counsel for the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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