W.P No. 621 of 1965 was filed by the petitioners, clearing agents in the Madrat 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 Messers. Punj and Sons (Pte) Ltd, The writ was admitted on 10th December 1965, and notice issued to the responent. Bus as the amount was already adjusted by the respondent on 6th December 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 ttme barred debt of Rs. 3910-50 against Messrs. Punj and Sons (Pte) Ltd.

The petitioners, as clearing agents, cleared a consignment of 520 bags of Asbestos Fibre Braad Silbestos belonging to Messrs Punj and Sons (Pte) Ltd, for “S.S Taipisen” which arrived at Madras Harbour on 25th August 1963. The customs authorities allowed this consignment duty free on 29th July 1963, when the clearance was completed. On 26th April 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 29th July 1963. Therefore, the collector addressed a letter to Messrs. Punj and Sons. 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 Customs and requested Messrs Punj and Sons to do the needful in the matter. Messrs, Punj and Sons did not make any payment. On 25th 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 agents for the importers, it was decided to re cover the sum of Rs. 3910-50 from the peti tioners by adjusting it in the petitioners' de posit account. On 24th October 1964, the petitioner pointed out that the Assistant Colleclor 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 4th December 1964, the Assistant Collector informed the petitioners that the sum of Rs, 3910-50 which was reques ted for as voluntary payment from the impor ters 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 9th Decem ber 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.

Art. 265 of the Constitution of India provides that no tax shall be levied or collected except by, authority ol 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. S. 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 20th July 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. Sec. 28 (1) of the Act provides that when any duty has not been levied, the proper office 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. S. 28 (2) provides that the Assistant Collector, after considering the representation made by the person on whom notice is served under sub-seo (1) shall determine the amount of duly 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-sec (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 Ss. 28 (1) and (2) followed.

S. 147 of the Act authorises the agent to do any act on behalf of the principal which the Act requires the owner or importer to do.

Sub-sec. (3) of S. 147 provides that when any person is expressly or impliedly authorised by the owner, importer or exporter of any goods, to be his agents in respect of such goods for all or any of the purposes of this Act, such person shall be deemed to be the owner, importer or exporter of such goods. According to the proviso to this section, where a duty is not levied, for any reason other than wilful act, negligence or default of the agent such duty shall not be recovered from the agent unless, in the opiniori of the Assistant Collector of Customs, the same cannot be recovered from the owner, importer or exporter. According to this section, in the case of non-levy of duty, the duty shall not be recovered from the agent unless the Collector is satisfied that it cannot be recovered from the owner or exporter or importer. But the re-covery of duty that had not been levied can only be subject to the provisions of S. 28. On a reading of Ss. 12, 28 and 147 together, it is clear that in cases in which duty had not been levied, the owner should be called upon to pay if the non-levy was not due to the wilful act, negligence or default of the agent. If the amounts cannot be recovered from the owner-the Assistant Collector may collect it from the agent. But the collection of the amount not levied can only be subject to the provisions of S. 28, that is, the officer should give notice within six months from the relevant date to the person concerned and follow the procedure laid down in that section. If no notice is issued within six months, the debt becomes time barred and cannot be recovered.

Mr. Ramanujam, learned Counsel appearing for the Customs Department, submitted that by S. 12, the law enables the Customs Department to levy duty on goods imported. In this case the goods were subject to levy of duty and, therefore, the petitioners are liable to pay the duty. He submitted that S. 147 of the Act made the agent also liable under certain conditions. According to him, Sec. 28 provides one of the remedies in addition to the right of recovery of duty properly leviable, under the ordinary law of the land, i.e within 30 years from the date on which the duty became leviable. This contention cannot be accepted, for the Act itself, when providing for the levy of the duty, also specifies the manner in which it can be collected. The Customs Act is a Code which defines the procedure and will have to be followed for collecting the duty which had not been levied and the procedure prescribed under S. 28 of the Act will have to be followed. In order to take advantage of S. 28,the Assistant Collector should give notice to the persion concerned within six months from the relevant date, and if he fails to do so, he cannot fall back on the general law and try to collect the amount. It is futile for him to contend that even though the remedy under S. 28 is barred, he can avail himself of the general law and proceed against the petitioners.

Reference was made to S. 39 of the old Act, Sea, Customs Act, 1878 (Act 8 of 1878), The section provides that in case in which duty had not been levied, the person concerned should pay the duty on the notice of demand issued to biro within three months from the relevant date. It was contended that the liability to pay customs duty was imposed under S. 20 of the Old Act, corresponding to present S. 12 and that S. 39 of the old Act corresponding to present Sec. 28 created only a bar of limitation to the recovery of customs duty which had not been levied, which had only extinguished the remedy, but did not extinguish the liability, to pay customs duty. This contention was repelled by a Bench of the Bombay High Court in App. 71 of 1963. The Bench held that both Ss. 20 and 39 of the old Act must be read together and that if this was done, it would appear that when customs duty had been short levied, not only the remedy to it cover the duty becomes barred after the expiry of the period of three months from the relevant date, but also the liability to pay the deficiency in duty. I am in respectful agreement with the reasoning and conclusion arrived at by the Bombay High Court. The decision is applicable to the facts of the present case as well. In the result, the contention of the learned Counsel for the petitioners that the repondent Was not entitled to adjust the amount has to be accepted.

Learned Counsel for the respondent, however contended that an alternative remedy is available to the petitioners and as the petitioners have not availed of it, the writ petition should be dismissed. It is no doubt true that normally the petitioners should exhaust all remedies before approaching this Court, but that does not preclude this Court from issuing the writ in appropriate cases. The adjustment of the amount ia this case is clearly unjustified and illegal and this is a fit case in which, though alternative remedy has not been availed of, a writ could issue. As the amount had already been adjusted, W.P 621 of 1965 has become infructuous, and it is dismissed. But the order of the Collector of Customs adjusting the amount of Rs. 3910—50 is set aside and W, P. No. 513 of 1966 is allowed with costs Rs. 100.

V.C.S