2004 (97) ECC 167 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Chennai

Shri P.G. Chacko, Member (J)

M. Ramachandran

Versus

Commissioner of Customs, Chennai

Application No. C/PD/5/2004, C/COD/75/2004 in C/8/2004

Misc. Order No. 324/2004
Stay Order No. 220/2004
Final Order No. 435/2004, dt. 4.6.2004, Certified on 11.6.2004

Duty demand (Customs)

Customs House Agent -- Imported goods cleared by the agent of CHA on condition that if agent did not pay the duty, the same would be liable to be recovered from CHA under Section 142 -- Tribunal held that the revenue has no authority under Section 142 to demand from the CHA any amount of duty which was liable to be paid by the importer/agent of the goods in question -- Here is no such demand made by CHA as yet -- Hence, appeal is dismissed as pre-mature -- Section 142 of Customs Act.

PRESENT :

Shri R. Ganesan, Adv. for the appellant.

Shri A. Jayachandran, JDR for the respondents.

Per : P.G. Chacko (Oral)

One of these applications is for condonation of the delay of 6 days involved in the filing of the appeal. This application is on a medical ground, which is supported by a Medical Certificate. The delay is condoned. The second application before me seeks waiver of predeposit of an amount of duty of Rs. 2,16,390. This application, however, does not say that any demand of such duty has been raised on them. On a perusal of the records, I find that no duty has been demanded from the appellants. The application for waiver of predeposit is, therefore, dismissed.

2. The appeal itself required to be finally disposed of at this stage. The appellant is a CHA, who had dealt with certain goods imported by M/s. P.K. Maniammal Textiles (P) Ltd., Mylapore, Chennai-4. The Asst. Commissioner of Customs had affirmed a demand of duty of Rs. 2,16,390 on the said company in respect of the imported goods. A copy of the order passed by the Asst. Commissioner against the said company was forwarded to the present appellant qua CHA. This was to inform the appellant that, if the importer did not pay up the duty, the same would be liable to be recovered from the CHA under Section 142 of the Customs Act. Aggrieved by this, the appellant approached the Commissioner (Appeals), but the latter rejected the appeal as premature. The operative part of the order of the Commissioner (Appeals) is extracted below:

"The copy of the order was forwarded to Shri M. Ramachandran, the Customs House Agent for information and merely inviting the attention of the liability of the CHA under Section 142 of the Customs Act. Aggrieved by this order, the CHA Shri M. Ramachandran filed this appeal to set aside the order of the lower authority to the extent of the liability of the CHA in the recovery proceeding. It has been verified from the department that so far no action has actually been initiated against the CHA, Shri M. Ramachandran. Hence, at this stage, the appeal filed by the CHA Shri M. Ramachandran is premature and without going into the merits of the case, the appeal is rejected as premature".

The present appeal of the CHA is against the above order of the lower appellate authority.

3. Heard both sides. Ld. Counsel submits that the department has no authority under Section 142 of the Customs Act to demand from the CHA any amount of duty which was liable to be paid by the importer of the goods in question. The order of the Commissioner (Appeals) has virtually held the CHA liable to be proceeded against under Section 142. This, according to Ld. Counsel, is a matter of grievance for the appellant and, therefore, the order of the Commissioner (Appeals) is liable to be set aside. Ld. DR, on the other hand, submits that, as noted in the impugned order, no action has actually been initiated against the CHA under Section 142 and, therefore, the appellant can have no grievance. He has pointed out that, if at all, any one should be aggrieved by the above observations of the Commissioner (Appeals), that should be the department, but the department has not chosen to prefer any appeal against the said order. In any case, according to DR, the present appeal is liable to be rejected for want of cause of action.

4. Having carefully examined the submissions, I find that the observations of the Commissioner (Appeals) extracted above were categorical enough to dispel the apprehensions of the party. It was clearly noted by the lower appellate authority that no action had so far been initiated against the CHA under Section 142 of the Customs Act. The only legal point raised by the Counsel is that Section 142 does not authorise any officer of customs to recover from a CHA any amount of duty which is liable to be paid by this client in respect of goods imported by the latter. This is, apparently, a valid point to be considered in a legal proceeding instituted against a demand notice issued by the department to the CHA under Section 142. In the instant case, there being, no such demand of duty on the appellant, the above legal point is irrelevant at present. The only ground raised by Ld. Counsel fails to be sustained in this case. In the result, the impugned order is affirmed and the present appeal is dismissed.

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