1998 (11) TMI 127 - SC - Customs

Whether a notice to the importer which is served on the clearing agent of the importer, long after the goods have been cleared by the clearing agent, will amount to a valid notice to the respondent? Held that - We do not find that in the present case, any notice has been served on the clearing agent on the ground that the department cannot recover the duty from the owner or importer thus making the agent liable. The notice, therefore, cannot be construed as a valid notice against the agent for the recovery of any duty from the agent under the proviso to Section 147(3). In fact, in the present case, on 9-10-1986, such notice could not have been served on the agent because on 9-10-1986, there was nothing which would lead the Assistant Collector of Customs to come to the conclusion 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. 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 the present case, the proviso to Section 147(3) is not attracted.

Summary

Issues:
- Validity of notice served on the importer through their clearing agent after goods clearance
- Interpretation of Sections 28 and 147(3) of the Customs Act, 1962
- Liability of clearing agent for duty payment
- Applicability of Contract Act and Customs House Agents Licensing Regulations
- Precedent set by the decision of the CEGAT
- Evidence of authorization for the clearing agent to receive notices on behalf of the importer

Analysis:
The Supreme Court examined the validity of a notice served on the importer through their clearing agent after the goods had been cleared. The appellant argued that since the notice to the clearing agent was served within the limitation period, the claim against the importer was not time-barred under Section 28 of the Customs Act. However, the Court emphasized that the notice must be served on "the person chargeable with duty," which, in the case of imports, is the importer. The Court highlighted that Section 147(3) does not address the validity of serving a notice to an owner/importer through their clearing agent after goods clearance.

Regarding the liability of the clearing agent, the Court stated that if the clearing agent is to be made liable under Section 147(3), the notice must be addressed to the clearing agent explicitly. The Court found that in the present case, no notice was served on the clearing agent to make them liable for the duty payment. The Court clarified that the notice must be served on the owner/importer, and serving the clearing agent long after they have finished their duties cannot be considered valid.

The Court also considered the Contract Act, noting that a notice served on the clearing agent after goods clearance cannot be deemed as given in the course of business transacted for the principal. Additionally, the Customs House Agents Licensing Regulations do not authorize a clearing agent to accept notices on behalf of the principal after completing their tasks.

The Court disagreed with the precedent set by the CEGAT, emphasizing that a notice served on the clearing agent is not equivalent to serving the importer directly. The Court upheld the Tribunal's decision, which found no evidence of authorization for the clearing agent to receive notices on behalf of the importer. Consequently, the appeal was dismissed, with no order as to costs in this particular case.