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TMI Blog1966 (4) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... omprised in the returns of the respondent to the writs made by the High Court and upon hearing the arguments of Mr. M. K. Nambiar for Mr. K. Krishnamurti, Advocates for the petitioners in each petition, and Mr. G. Ramanujam, Central Government Standing Counsel on behalf of the respondent in both the petitions the court made the following order. 2.Writ Petition No. 621 of 1965 was filed by the petitioner, clearing agents in the Madras Port, for the issue of a Writ of Prohibition against the Collector of Customs, Madras, restraining him from seizing the moneys deposited by the petitioners in their account with them and adjusting such moneys towards a time-barred claim for Rs. 3910-50 against Messrs. Punj and Sons (Pvt.) Limited. The writ wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st, 1964 the Assistant Collector wrote again to the petitioners that the importers have stated in their letter dated 8-5-64, that they were unwilling to pay. He also intimated the petitioners that as they acted as the clearing agent for the importers, it was decided to recover the sum of Rs. 3,910.50 from the petitioners by adjusting it in the petitioners' deposit account. On 24-10-1964, the petitioners pointed out that the Assistant Collector was not right in proposing to enforce the demand by compulsorily recovering the amount by adjusting with the petitioners' account and suggested that they could take proceedings against the importers. On 4-12-1964, the Assistant Collector informed the petitioners that the sum of Rs. 3,910.50 which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leared by the petitioners on 29-7-1963, are liable to duty and can be cleared after payment of duty. But by some mistake, the duty had not been levied on the goods. Section 28(i) of the Act provides that when any duty has not been levied, the proper office may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied, requiring him to show cause why he should not pay the amount specified in the notice. The expression "relevant date", according to section 28(3) is the date on which the proper officer makes an order for the clearance of the goods. We are not concerned with the proviso to section 28(1) of the Act. Section 28(2) provides that the Assistant Collector, after consideri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unless the Collector is satisfied that it cannot be recovered from the owner or exporter or importer. But the recovery of duty that had not been levied can only be subject to the provisions of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure and will have to be followed for collecting the duty which had not been levied and the procedure prescribed under section 28 of the Act will have to be followed. In order to take advantage of section 28, the Asstt. Collector should give notice to the person concerned within six months from the relevant date, and if he fails to do so, he cannot fall back on the general law and try to collect the amount. It is futile for him to contend that even though the remedy under section 28 is barred, he can avail himself of the general law and proceed against the petitioners. 7.Reference was made to sec. 39 of the old act. Sea Customs Act 1878 (Act 8 of 1878). The section provides that in case in which duty had not been levied, the person c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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