K.S. Venkataramani, Member (T)

1. These three appeals are directed against the order dated 14.3.88 passed by the Collector of Customs (Appeals), Madras by which he had confirmed the demand for differential duty raised against the appellants by the Assistant Collector of Customs, Madras in his orders dated 13.7.87 and 13.7.87/14.8.87. Three separate demands have been confirmed by the orders of the Assistant Collector, each for Rs.12,919/- on the consignments of Ethyl Hydrazine imported by the appellants and cleared by them on 3.1.86. The demand for differential duty arose due to the fact that while calculating the assessable value of the goods in Indian currency the Customs House adopted wrong exchange rate of the foreign currency resulting in the short collection of duty which was paid at the time of original assessment on 3.1.86. Demand for differential duty under Section 28(1) of the Customs Act, 1962 with the two copies of each of the notice, one copy for the importer and the other for the Clearing Agent, were handed over to the Clearing Agent on 2.7.86 after obtaining his acknowledgement. Subsequently orders confirming the said demand were issued to the importer by the Assistant Collector. The appeals against the orders were rejected by the present impugned order of the Collector (Appeals).

2. Shri C.N. Viswanatham, the learned Consultant for the Appellants contended that in this case the demand for differential duty is time-barred because the demand notice under Section 28(1) of the Customs Act, 1962 was not served on the appellants within six months from the date of payment of duty. It was further contended that service of demand notice on the Clearing Agent cannot be taken as serving of the notice on the importer. He further contended that the Customs House Agent cannot be treated as Agent of the importer after the goods have been cleared for the purpose of Section 28(1) of the Act. In putting forth this contention he placed reliance upon the decision of the Special Bench, CEGAT, New Delhi in the case of Collector of Customs, Bombay v. Presto Works Jallandhar reported in MANU/CE/0065/1987 : 1987 (28) ELT 469. In that case, the learned Consultant submitted that, the notice under Section 28(1) of the Act was served on the Customs House Agent before the expiry of the six months period, but the notice was served on the importer beyond the period of six months. The Tribunal held that Customs House Agent is not an agent of the importer after the clearance of the goods unless otherwise authorised by agreement and that short levy is not payable if demand notice was served on the importer beyond six months. The learned Consultant further cited the decision of the Calcutta High Court in the case of D. Sengupta v. Collector of Customs, Calcutta reported in MANU/WB/0258/1986 : 1987 (31) ELT 30 wherein also the Hon'ble High Court held that after the goods have been cleared from the Customs, the Clearing Agent is not a person within the meaning of Section 124 of the Act for the purpose of service of the Show cause notice. Therefore, the learned Consultant urged that demand for differential duty is time-barred and the appellants are not liable to pay differential duty.

3. Shri K.K. Bhatia, the learned SDR appearing for the Department contended that the provision of Section 147(3) of the Act clearly brings out the liability of the Clearing Agent to pay the differential duty even after the goods have been cleared. He further referred to the provisions of Section 153 of the Act relating to the service of notice according to which a notice served on an Agent is a valid notice. Therefore, there was no need for interfering with the orders passed by the Collector (Appeals).

4. The submissions made by the learned Consultant and the learned S.D.R. have been carefully considered. The question herein is whether service of demand notice on the Clearing Agent can be taken as service of notice on the appellant importer for the purpose of Section 2