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TMI Blog1988 (11) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... 13.7.87/14.8.87. Three separate demands have been confirmed by the orders of the Assistant Collector, each for Rs.12,919/- on the consignments of Ethyl Hydrazine imported by the appellants and cleared by them on 3.1.86. The demand for differential duty arose due to the fact that while calculating the assessable value of the goods in Indian currency the Customs House adopted wrong exchange rate of the foreign currency resulting in the short collection of duty which was paid at the time of original assessment on 3.1.86. Demand for differential duty under Section 28(1) of the Customs Act, 1962 with the two copies of each of the notice, one copy for the importer and the other for the Clearing Agent, were handed over to the Clearing Agent on 2.7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e if demand notice was served on the importer beyond six months. The learned Consultant further cited the decision of the Calcutta High Court in the case of Sengupta v. Collector of Customs, Calcutta reported in 1987 (31) ELT 30 wherein also the Hon'ble High Court held that after the goods have been cleared from the Customs, the Clearing Agent is not a person within the meaning of Section 124 of the Act for the purpose of service of the Show cause notice. Therefore, the learned Consultant urged that demand for differential duty is time-barred and the appellants are not liable to pay differential duty. 3. Shri K.K. Bhatia, the learned SDR appearing for the Department contended that the provision of Section 147(3) of the Act clearly brings o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty shall not be recovered from the agent unless the Collector is satisfied that it cannot be recovered from the owner or exporter or importer. The facts in this case are that the Customs House had issued demand notice made out for the importer with copy of it to the Clearing Agent of the Customs House within six months period. The appellants' plea is that they have not received the notice at all. Their contention that because the appellants had not actually received the notice, which was admittedly served on the Clearing Agent through whom the consignments were cleared within the six months period under Section 28(1), they are not liable to pay the differential duty, is not acceptable. This is for the reasons that Section 153 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the section unworkable". It has been argued in this connection by the appellants that they had not authorised the Clearing Agent to receive the notice on their behalf. However, this is a mere say on their part, and no documentary evidence by way of any specific authorisation given by them to their Clearing Agent has been produced at any stage in support of this contention. On the other hand in the case of Presto Works, Jallandhar, relied upon by the appellants, the Tribunal had found it as an undisputed fact that the Clearing Agent in that case was not authorised by the importer to receive the notice on his behalf. This is not the case herein as no documentary evidence has been produced by the appellants in support of their submission that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recover the differential duty from him, and the Court held that unless it is shown that the Department was unable in its attempt to recover the differential duty from the importer, they cannot fasten the liability on the Clearing Agent under Section 147 of the Customs Act, 1962. In the Sengupta case decided by the Calcutta High Court, it is seen that the Hon'ble High Court did not have occasion to deal with the provisions of Section 147 of the Customs Act, which lays down specific provision with regard to recovery of the short levy from the Customs House Agent under certain circumstances. On the other hand, it was dealing with the Show Cause Notice in an offence case following seizure of goods under Section 124 of the Customs Act. Also cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the short levy of differential duty, was addressed to the appellants who are importers. On the other hand, the Customs House had in the endorsement of the order confirming the demand given to the Customs House agent only drawn their attention to the powers for recovery of sums due to Govt. in terms of Section 142 of the Customs Act if the importer fails to pay up the same. In this context, the obligation of the Customs House Agent as laid down in Regulation 14(d) of the Customs House Agents Licensing Regulations, 1984 is also relevant, according to which the Customs House Agent shall advise his client to comply with the provisions of the Act and in case of non-compliance of any provision, he shall bring the matter to the notice of the Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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