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TMI Blog1992 (5) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... ce dated 9-10-1986 was issued to the respondents calling upon them to pay the duty amounting to Rs. 20,20,370 80 on the ground that the goods were assessable as Cellular Rubber Sheets under Heading 4008.11. It was confirmed by the Assistant Collector of Customs, Cochin, vide his Order-in-Original dated 1-4-1987. Against that Order the respondents filed their appeal before the Collector of Customs (Appeals), Madras, who vide his Order No. C. 27AP/68/87, dated 20-8-1987 allowed the appeal and set aside the original order holding that the demand was received by the respondents after expiry of the statutory time limit. Against that Order of the Collector (Appeals), the Revenue preferred the appeal before this Tribunal. The Tribunal vide its Order No. 722/88-C, dated 19-9-1988 set aside the Order of the Collector (Appeals) and remanded the matter to the Assistant Collector for disposal of the dispute in accordance with law and after giving due opportunity to both sides. On remand the respondents contended before the Assistant Collector that they received the Show Cause Notice, dated 9-10-1986 demanding the duty on 14-10-1986 and produced the photo copy of the demand letter bearing their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms House . He also drew our attention to sub-section (2) of Section 147 of the Act which provides that where this Act requires anything to be done by the owner, importer or exporter of any goods, it may be done on his behalf by his agent and any such thing done by the agent of the owner, importer or exporter of any goods shall, unless the contrary is proved be deemed to have been done with the knowledge and consent of such owner or importer or exporter, so that in any proceedings under this Act, the owner, importer or exporter of the goods shall also be liable as if the thing had been done by himself and further that when any person is expressly or impliedly authorised by the importer to be his agent in respect of such goods for all or any of the purposes of this Act, such person shall, without prejudice to the liability of the owner, importer or exporter be deemed to be the importer for such goods for such purposes. In a nutshell, his submission was that the service of the demand notice in question upon the agent of the respondents, that is to say, M/s Achuthan Pillai Co. within the statutory period as prescribed under Section 28 of the Act was a valid demand, more particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of D.Sengupta v. Collector of Customs and Others -1987 (31) E.L.T. 30, wherein it was held that service of Show Cause Notice on clearing agent is not a valid service after goods have been released and acknowledgement of clearing agent not treatable as service on the importer. 5. We have considered the submissions. Before we advert to the submissions made by the parties, it would be advantageous to refer to the Order of remand (Order No. 722/88-C, dated 19-9-1988). It appears from paragraph 3 of the said Order that it was contended by the Revenue before the Tribunal that the notice of demand was served on the Customs House Agents on the last date of the stipulated six months period. There is no evidence on record of the actual date of service of the notice on the respondents apart from their assertion that they received the notice only on 14-10-1986 and further that there is no denial from the respondents that the clearing agent, namely M/s. Achuthan Pillai Co. had not ceased to be their Clearing Agents on the date the Customs House Agents received the demand notice. In this premises, a request was made by the Revenue that the case be remanded to the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -10-1986, the service of the Show Cause Notice on the agent shall be deemed to be the service on the respondents for the purpose of Section 28, and if that is so the demand was raised within the time prescribed under Section 28 of the Act. In the case of Collector of Customs, Bombay v. Presto Works, Jallandhar, supra, the identical question was involved and after referring to the provisions of Section 28,147 read with Sections 12 and 153 of the Act and the following case law the Two Members Bench of the Tribunal observed that the argument of the importer that the clearing agent was not authorised by him (importer) to receive notice on his behalf was not disproved by the Revenue who could not show any evidence that, either according to an agreement or according to the provisions of the Customs Law, the Customs House Agent who was appointed to clear the goods on behalf of the importer, continued to be the agent for the importer even after the goods were cleared, and that the agent had the legal duty of receiving notices on behalf of the importer after the clearance of the goods was completed (para 20) - (i) B. Bhoormal Tirupati v. The Additional Collector of Customs, Madras - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the respondents and that as on 9-10-1986 they had been authorised or empowered by the appellants to receive notice under the Customs Act on their behalf. In fact, there is no evidence on record to show that M/s. Achuthan Pillai Co. continued to remain as agent on behalf of the respondents even after 9-10-1986 or they had been duly authorised to receive any notice on behalf of the respondents. Even before us no such evidence worth the salt was pointed out to us. On the other hand from the photo copy of the notice (Annexure B - page 9 of the paper book) issued under Section 28 of the Customs Act, we observe that it was issued to the respondents with a copy to M/s. Achuthan Pillai Co., stating as follows: Copy to: M/s. Achuthan Pillai Co., Cochin for information and necessary action. The original notice has been served on the importer without prejudice to the liability of M/s. Achuthan Pillai Co. who are deemed to be owned the goods as contemplated in Section 147(3) of the Customs Act, 1962 by virtue of having acted as agents of the importer in respect of the above consignment. 8.1 It was delivered to the said M/s. Achuthan Pillai Co. and they received it stati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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