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2017 (6) TMI 696 - AT - CustomsWhether, before finalization of Bill of Entry, which was provisionally assessed under Section 18 ibid, can the Department proceed against the importer to confirm the differential duty demand and for imposition of penalty? Held that: - Section 28 of the Act contemplates issuance of SCN for recovery of duties which were not levied or short levied. For issuance of SCN under such statutory provision, the duty liability is required to be ascertained by the proper officer - In the present case, since the assessment is provisional and the proper duty liability has not been quantified/ ascertained as per the provisions of Section 18 ibid, there is no question of short levy or non-levy of duty - the proceedings initiated u/s 28, which culminated in the impugned order dated 17.12.2013, will not be sustainable. Hon’ble Supreme Court in the case of ITC Ltd. [2006 (10) TMI 149 - SUPREME COURT OF INDIA] held that proceedings under Section 11 A of the CEA, 1944 (perimateria with Section 28 ibid) cannot be initiated without completing the assessment proceedings - Since the present proceedings were initiated u/s 28 ibid before finalization of the assessment, the same is not maintainable. Appeal allowed - decided in favor of appellant.
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