2014 (7) TMI 144 - AT - Customs

Recovery of duty from the agent - appellant (agent) contended that, there was no evidence of his involvement in the post-import violation by the importer - contravention of the conditions of the Customs Notification No.80/95-Cus. dated 31.03.1995 and 31/97-Cus. dated 01.04.97 - revenue contended that, according to Section 147 of the Customs Act, 1962, duty can be recovered from the agent. - Held that - We are of the opinion that merely because no penalty was imposed on the Appellant, it cannot be a ground for non-recovery of dues from the Appellant, if provided so under the provisions of the Customs Act, 1962 - any duty not levied or short-levied can be recovered from the agent where the Assistant Commissioner/Deputy Commissioner is of the opinion that the same cannot be recovered from the importer. As such, we do not find any merit into the Appeal and the same is dismissed. However, we find from the records of the case that the Assistant Commissioner/Deputy Commissioner of Customs has not arrived at a conclusion that duty was not recoverable from the importer before recovery of the same from the Appellant. Accordingly, we make it clear that the concerned Assistant Commissioner/Deputy Commissioner of Customs should arrive at the conclusion that the said duty was not recoverable from the importer before initiating the recovery proceedings against the Appellant - Decided against assessee.

Summary

Issues: Recovery of customs duty from the appellant as an agent.

Analysis:
The case involved a dispute regarding the recovery of customs duty from the appellant, M/s. Fairdeal Enterprises, acting as an agent in handling import documents and clearance of goods. The Commissioner held that the duty demanded from the importer should be recovered from the appellant. The appellant challenged this decision through an appeal.

The appellant's advocate argued that the duty-free materials imported under the DEEC Scheme were disposed of in the domestic market without fulfilling export obligations. The Commissioner sought to recover the duty from the appellant, excluding the penalty imposed on the proprietor of the appellant firm. The appellant contended that there was no evidence of their involvement in the post-import violation and cited a previous tribunal decision to support their case.

On the other hand, the Revenue's representative supported the Commissioner's findings, stating that duty could be recovered from the agent under Section 147 of the Customs Act, 1962, if they handled the documents and clearance of goods.

After considering both arguments, the tribunal found that the appellant had acted as an agent of the importer in handling import documents and clearance of goods. The tribunal noted that the imposition of penalty was for violation of Customs Act provisions, making the goods liable for confiscation due to non-levy or short-levy of duty. The tribunal emphasized that the absence of a penalty on the appellant did not absolve them from duty recovery if provided under the Customs Act.

The tribunal referred to Section 147 of the Customs Act, which establishes the liability of the principal and agent. It highlighted that duty not levied or short-levied could be recovered from the agent if the Assistant Commissioner or Deputy Commissioner determined it was not recoverable from the importer. The tribunal dismissed the appeal, emphasizing the need for the Customs officials to establish that duty was not recoverable from the importer before initiating recovery proceedings against the appellant.

In conclusion, the tribunal upheld the duty recovery from the appellant as an agent, emphasizing the importance of Customs officials determining the recoverability of duty from the importer before pursuing recovery from the agent.