Court rules clearing agent not liable for Anti Dumping Duty without proper notice.

The court held that the clearing and forwarding agent was not liable for Anti Dumping Duty under Customs Notification No.16 of 2016 without proper notice. It was determined that Section 147 of the Customs Act, 1962 should only apply after exhausting measures against the primary importer. As the proper assessment procedures were not followed for the agent, the court ruled the order against the agent as invalid. Consequently, the court set aside the order against the petitioner clearing and forwarding agent, allowing the writ petition and closing the connected miscellaneous petition without costs.

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Issues involved:
The issues involved in the judgment are the liability of a clearing and forwarding agent for Anti Dumping Duty under Customs Notification No.16 of 2016 without proper notice or communication, and the application of Section 147 of the Customs Act, 1962 in imposing liability on the agent.

Details of the Judgment:

Issue 1: Liability of the clearing and forwarding agent for Anti Dumping Duty

The petitioner, a clearing and forwarding agent, was approached by Diamond Fancy Goods for clearance of a consignment. The goods were assessed to duty after clearance, and the petitioner later received an order demanding Anti Dumping Duty without prior notice. The petitioner argued that the order violated principles of natural justice and that Section 147 should only apply after exhausting measures against the primary importer. The respondents defended the order, stating that Section 147 imposes liability on the agent. The court found the order to be vitiated as proper assessment procedures were not followed for the agent as they were for the importer.

Issue 2: Application of Section 147 of the Customs Act, 1962

The court referred to a previous case where it was held that in order to proceed under Section 147(3), a notice must be served on 'the person chargeable with duty,' which in this case would be the clearing agent. As no notice was served on the clearing agent in the present case, the court ruled that the order against the agent was invalid. The court emphasized that proper procedure, including issuing a notice under Section 28, must be followed before imposing liability on an agent. The court also noted that the assessing officer must record an opinion that duty has not been recovered from the importer before proceeding to recover it from the agent.

In conclusion, the court set aside the impugned order against the petitioner clearing and forwarding agent, allowing the writ petition and closing the connected miscellaneous petition without costs.

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