PILMEN AGENTS PRIVATE Vs. COLLECTOR OF CUSTOMS MADRAS

JUDGEMENT

(1.) W. P. No. 621 of 1965 was filed by the petitioners, 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 (Pte) Ltd. The writ was admitted on 1012-1965 and notice issued to the respondent. But as the amount was already adjusted by the respondent on 6-12-1965, the petitioners filed W. P. 513 of 1966 praying for the issue of a writ of certiorari for quashing the order of the Customs authorities seizing the moneys deposited by the petitioners in their account towards the said time barred debt of Rs. 3910-50 against Messrs Punj and Sons (Pte) Ltd.

(2.) THE petitioners, as clearing agents, cleared a consignment of 520 bags of asbestos Fibre Brand Silbestos belonging to Messrs. Punj and Sons (Pte) Ltd. , for "s. S. Taipisen" which arrived at Madras Harbour on 25-8-1963. The Customs authorities allowed this consignment duty free on 29-7-1963 when the clearance was completed. On 26-4-1964, the Assistant Collector of Customs, Appraising department, realised that duty of Rs. 3910-50 ought to have been levied on the goods cleared by the petitioner on 29-7-1963. Therefore, the Collector addressed a letter to Messrs. Punj and Sons (Pte) Ltd. In his letter, the Collector mentioned that a demand under S. 28 (1) of the Customs Act, 1962 has become time barred, but payment of the amount if made voluntarily would be accepted. The petitioners addressed Messrs. Punj and Sons on 6th May 1964 referring to the letter of the 25th April 1964 from the Assistant Collector of Custom and requested Messrs. Punj and Sons to do the needful in the matter. Messrs. Punj and Sons did not make any payment. On 26th August 1964, the Assistant Collector wrote again to the petitioners that the importers have stated in their letter dated 8th May 1964, 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. 3910-50 from the petitioners by adjusting it in the petitioner's deposit account. On 24-10-1964, the petitioner 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. 3910-50 the which was requested for a voluntary payment form the importers has not been received and as the petitioners acted as clearing agents for the importers, it had since been decided to recover the short levied amount legally due to Government from the petitioners. The petitioners were called upon to pay the same within a fortnight from the date of receipt of that letter. On 9-12-1964, the petitioners protested against the proposal of the Assistant Collector to adjust his account. The petitioners eventually filed W. P. 621 of 1965 as the Assistant Collector continued to threaten to adjust the amount from their account, for a writ of prohibition against the Assistant collector. As already stated, before the order was served, the amount was adjusted by the Assistant Collector of Customs, which necessitated the petitioners filing W. P. 513 of 1966 for a writ of certiorari for quashing the order of the assistant Collector.

(3.) ARTICLE 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. There can be no dispute that the duty levied by the Customs authorities is a tax, and therefore, can only be levied by authority of law, Section 12 of the Customs Act 1962 (Act 52 of 1962) provides that duties of customs shall be levied at such rates as may be specified under the Indian Tariff act 1934, or any other law for the time being in force, on goods imported into, or exported from India. It is not disputed that the goods cleared by the petitioners on 20-7-1963 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 (1) of the Act provides that when any duty has not been levied, the proper officer may, within six months from the relevant date, serve notices 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 S. 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 S. 28 (1) of the Act. Section 28 (2) provides that the Assistant Collector, after considering the representation made by the person on whom notice is served under sub-s. (1)shall determine the amount of duty due from such person and thereupon such person shall pay the amount so determined. A reading of S. 28, makes it clear that in the case of non-levy, the officer must within six months from the relevant date, which is the date on which the officer made an order for the clearance of the goods, serve a notice on the person chargeable with the duty calling upon him to show cause why he should not pay the amount. After service of the notice, under sub-s. (2) he must consider the representation made by the person to whom notice is issued and then determine the amount and call upon the person to pay the amount. Action under S. 28 could not have been taken, and the Assistant collector was clearly aware of it, for in his letter dated 25th April 1964, he had mentioned that a demand under S. 28 (1) is time barred, but a payment if made voluntarily, would be accepted. As proceedings could not be taken under S. 28 no notice required under that section was given or the procedure prescribed under S. 28 (1) and (2) followed.