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TMI Blog1998 (11) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the goods were correctly assessable under Tariff Heading 4008.11. The notice, therefore was in respect of short-levy of duty. The clearing agents, M/s. Achuthan Pillai & Co. were served with this demand on 9-10-1986. The respondent was served with the notice on 14-10-1986. 2. Sub-section (1) of Section 28 of the Customs Act, provides as follows : "28. Notice for payment of duties, interest etc. - (1) When any duty has not been levied or has been short-levied or erroneously refunded or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may, (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised by the....importer....to be his agent in respect of such goods for all or any of the purposes under this Act, such person shall, without prejudice to the liability of the owner or importer.... be deemed to be the owner or importer....". The proviso to Section 147(3), however, makes it clear that where any duty is, inter alia, short-levied for a reason other than any wilful act, negligence or default of the agent, the agent shall not be liable for payment of that duty, save and except where, in the opinion of the Assistant Collector of Customs, the duty cannot be recovered from the owner or the importer. Section 147(3) does not deal with the validity of service of a notice to an owner/importer which is served not on him but on his c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very 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 within the period of six months prescribed under Section 28. Therefore, on the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him for the principal. 10. We were also shown Customs House Agents Licensing Regulations, 1984. There is no provision under these Regulations which authorises clearing agent who has already cleared the goods and completed his business qua these goods on behalf of the principal, to accept a notice on behalf of the principal. 11. Learned Counsel for the appellant relied upon a decision of the CEGAT in Almelo Laboratories Pvt. Ltd. v. Collector of Customs reported in 1989 (41) E.L.T. 319 (Tribunal) in support of his contention that a notice served on the clearing agent under Section 28 is, in law a valid notice on the importer himself. We are not in agreement with the view taken by the CEGAT. 12. The Tribunal has found on facts that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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