2023 (3) TMI 1289

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....er of the requisite particulars after which the petitioner had accepted the assignment. A bill of entry was filed on 16.09.2016 seeking clearance. The bill of entry was subject to a re-assessment and the officers assessed the goods to duty of a sum of Rs.6,15,401/-, enhancing the declared value from US Dollars 18,304.40 to US Dollars 30,852.90. An 'out of charge' order had been issued and the goods were cleared on 19.09.2016. 2.Thereafter and unknown to the petitioner proceedings had been initiated as against the importer Diamond Fancy Goods for short levy of Anti Dumping Duty under Customs Notification No.16 of 2016. The petitioner was not a party to these proceedings and had received no notices or communications from the respon....

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....he modes of assessment under the Customs Act is in terms of Section 28 thereof, which is invoked as against the importer by issue of a show cause notice. Section 147 is a provision which fastenes a corresponding, parallel and deemed liability on the agent of the principle as well. It thus stands to reason that the process and procedure for assessment that is followed qua the principle, the importer in this case, would have to be necessarily followed in the case of the agent as well. 7.In Collector of Customs, Cochin v. Trivandrum Rubber Works Ltd., Chacki [(1999) 2 SCC 553], the assessee therein, Trivandrum Rubber Works, was the importer. The goods had been cleared through M/s.Achudhanpillai and company to their clearing agent. A notice ....

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....ised by the owner, importer or exporter of any goods 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 owner, importer or exporter of such goods for such purposes [including liability therefor under this Act]: PROVIDED that where any duty is not levied or is short-levied or erroneously refunded on account of any reason other than any wilful act, negligence or default of the agent, such duty shall not be recovered from the agent unless in the opinion of [Assistant Commissioner of Customs or Deputy Commissioner of Customs] the same cannot be recovered from the owner, importer or exporter.&#3....

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.... not find that in the present case, any notice has been served on the clearing agent on the ground that the Department cannot recover the duty from the owner or importer thus making the agent liable. The notice, therefore, cannot be construed as a valid notice against the agent for the recovery of any duty from the agent under the proviso to Section 147(3). In fact, in the present case, on 9-10-1986, such notice could not have been served on the agent because on 9-10-1986, there was nothing which would lead the Assistant Collector of Customs to come to the conclusion that the duty could not be recovered from the importer. Even a notice for recovery of duty had not been served on the importer on 9-10-1986. Notice has been served on the impor....