9911796707
TMI Blog1994 (4) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... cquiring registration for the project. For the purpose of provisional assessment under the project contract rate and for clearance of the same the importers also executed a bond with bank guarantee for Rs. 2,25,000/- for one year. The importer did not pay the duty assessed for clearance of the goods. The appel lants as power of attorney holders cleared the goods on payment of duty. The appellants also got the bank guarantee extended and informed the Customs House that they were trying to find a suitable entreprenuer for implementing the project. At the request of the appellants, the bank guarantee was further extended till February 1988. As the machinery was imported more than 6 years back and as the appellants, who had cleared the goods av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the owner, importer or exporter . He pleaded that while according to this Section, the appellants can be treated as the importer, duty can be demanded from them only in case the same could not be recovered from M/s. Nelsa Enterprises who imported the machine originally. He pleaded that without drawing proceedings against M/s. Nelsa Enterprises, the appellants could not be held liable to pay duty. He pleaded that the goods were imported on 6-12-1984 and were cleared by them only on 29-8-1985 as the original importer who had been given loans by the appellants could not dear the same. He pleaded that no doubt, the appellants had undertaken in terms of the agreement between the importer and them all the obligations regarding payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter to do. Sub-sec. (3) of Sec. 147 provides that when any person is expressly or impliedly authorised by the owner, importer or exporter of any goods to be his agents in respect of such goods for all or any of the purposes of this Act, such person shall be deemed to be the owner, importer or exporter of such goods. According to the proviso to this section, where a duty is not levied for any reason other than wilful act, negligence or default of the agent such duty shall not be recovered from the agent unless, in the opinion of the Assistant Collector of Customs, the same cannot be recovered from the owner, importer or exporter. According to this Section, in the case of non-levy of duty, the duty shall not be recovered from the agent unl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. The learned SDR for the Department pleaded that the facts in the present case clearly point to the fact that the appellants had become the owners of the goods and cleared the same on their account. For the purpose of the provisions of the Customs Act, 1962 by virtue of the power of attorney they could be deemed to be the importers. As it is, they took over the goods and they became the importer for the purpose of the proceedings under the Act. In this connection he referred to agent s power of attorney and pointed out that the title to the goods vested with the appellants. He pleaded that consequent on the clearance of the goods, M/s. Nelsa Enterprises was no longer in the picture and the appellants alone were in correspondence wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferential duty and that the same was allowed to expire and thereafter no action was initiated to recover the amount from them. We observe that in the present case, the appellants have financed the import of the machine and as pleaded by the Revenue, even LC was opened by the appellants for the said import and the machine has been cleared on payment of duty by the appellants. They secured the lien on the goods by virtue of the agreement between the appellants and M/s. Nelsa Enterprises and on the failure of M/s. Nelsa Enterprises to clear the goods the appellants under the power of attorney cleared the goods. The conditions set out in the power of attorney are as under: 1. to arrange for the clearance of the consignments of the imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To do all other acts, deeds or things which the attorney may think fit. 6. It is seen from the above that before the goods were cleared, right to the property by virtue of this, came to be vested in the appellants and the same could be dealt with or disposed of by the appellants the way they deemed fit and they also undertook to pay the amounts due for clearance of goods, if any. It is seen that the appellants stepped into the shoes of the importer i.e. of M/s. Nelsa Enterprises so far as the Customs authorities are concerned. Therefore, in this background, they alone have to be held to be answerable for payment of duty. The power of attorney under which the appellants operated was not merely for the purpose of clearance of the goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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