A notice to the importer which is served on the clearing agent of the importer long after the goods have been cleared by the clearing agent, will not amount to a valid notice to the respondent.

ORDER

1. The respondent M/s. Trivandrum Rubber Works ltd. imported neoprene foam sheets which were cleared under a bill of entry for home consumption through their clearing agent, M/s. Achuthan Pillai & Co. The goods were cleared on 9-4-1986. On 9-10-1986, a notice to the importer, i.e., the respondent herein was issued by the appellant under Section 28 of the Customs Act, 1962 calling upon the respondent to pay duty amounting to Rs 20,20,370.80 on the ground that the goods were correctly assessable under Tariff Heading 4008. 11. The notice, therefore, was in respect of short levy of duty. The clearing agents, M/s. Achuthan Pillai & Co. were served with this demand notice on 9-10-1986. The respondent was served with the same notice on 14-10-1986.

2. Sub-section (1) of Section 28 of the Customs Act, 1962 provides as follows :

"28. Notice for payment of duties, interest etc. - (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part-paid or erroneously refunded, the proper officer may, -

(a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year;

(b) in any other case, within six months,

from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short-levied or part-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice;

* * *

3. The period of limitation for service of notice, therefore, when duty has been short-levied is six months. The notice on the clearing agent was served on the last day before the expiry of limitation while the respondent itself was served with the notice after the expiry of the period of limitation.

4. The Tribunal has held that the demand contained in the said notice is time-barred and hence cannot be recovered. The appellant, however, contends that since the notice on the clearing agent of the respondent was served on the last date of limitation, the notice is served within time and the claim against the respondent is not barred under Section 28.

5. The narrow question which requires consideration is whether a notice to the importer which is served on the clearing agent of the importer long after the goods have been cleared by the clearing agent, will amount to a valid notice to the respondent. In this connection, the appellant has relied on Section 147(3) of the Customs Act, 1962. Sub-section (3) of Section 147 provides :

"147. (3) 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 ... be deemed to be the owner, importer ......"

The proviso to Section 147(3), however, makes it clear that where any duty is, inter alia, short-levied for a reason other than any wilful act, negligence or default of the agent, the agent shall not be liable for payment of that duty, save and except where, in the opinion of the Assistant Collector of Customs, the duty cannot be recovered from the owner or the importer. Section 147(3) does not deal with the validity of service of a notice to an owner/importer which is served not on him but on his clearing agent after the goods have been cleared. Section 147(3) read with the proviso specifies circumstances in which the clearing agent can be treated as the owner/importer of the goods and made liable for the payment of duty. In the present case, no notice is addressed to the clearing agent making him liable for the short-levied duty. The notice is directed only to the respondent.

6. Under Section 28, notice has to be served on "the person chargeable with duty". The person chargeable with du