TMI Blog2019 (4) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... would have been to consider the test report and apply the same to the imported consignment with a notice to finalise the same under the provisions of the Customs Act. It is completely against the provisions of the Custom Act to issue the Show Cause Notice under the provisions of Section 28 of the Customs Act without the assessment being finalised under Section 18(2) of the Customs Act. Revenue has not brought any other decision in support of the impugned order, that as to how without the final assessment, which at the first instance, has been made provisional the demand can be issued - This is act of respondent Commissioner under Section 28 of the Customs Act in contravention of the provisions of Section 18(2) of the Act, and is not sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gate for the despatch to the appellant s place at Ludhiana. Thereafter on 14.5.1999, the officers of DRI, Amritsar enquired about the consignment of 1120 bales of synthetic spinning waste imported by the appellant through Kolkata port. After investigation and recording of statements of the employee of the appellant under Section 108 of the Customs Act and thereafter, the show cause notice was caused to be issued to the appellant on various grounds as contained in the show cause notice DRI F.No. 856(M)18/ASR/99/1042 read with F. No. S2-42/99/SIB dated 10.11.1999. This show cause notice was issued after the investigation by the DRI by the Commissioner of Customs (Port), Kolkata. It was alleged that the appellant has mis-declared the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d consignment of acrylic fibre as acrylic waste. The case was adjudicating upon by the impugned order and differential duty of Customs not levied at the time of assessment was ordered to be paid under the provisions of Section 28 of the Act along with interest under Section 28 AB of the Act. The penalty was also proposed against the appellant and their employee as per the impugned order under the provisions of. 3. Ld. Advocate on behalf of the appellant submits that in this case undisputedly the assessment was made provisionally on account of pending test report. It was impressed upon by the ld. Advocate that the case assessement was made provisionally under Section 18(1) of the Act. The importer is required to make the final payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the said section within the period prescribed from the relevant date, since there is no relevant date in the present case as final assessment and adjustment was not made. Therefore, the Show Cause Notice issued under Section 124 read with Section 28 of the Act appear to be mis-conceived in the facts and circumstances of the case. The discovery made by the Customs recording misdeclaration might give rise to issuance of Show Cause Notice to that effect under present Show Cause Notice cannot be sustained. Accordingly, Hon ble High Court set aside the impugned Show Cause Notice quashed with the consequence that orders passed on the basis thereafter, cannot be maintained. In addition, the ld. Advocate also relied upon the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner. In fact, the Commissioner in his order has clearly and categorically ordered that the provisional assessment stand finalised. In this regard, we find that the provisional assessment has been made as per the provisions of Section 18(1) of Customs Act and the same was not finalised till the investigation was taken up and the Show Cause Notice was issued. We find that the Show Cause Notice was issued under the provisions of Section 28 of the Customs Act and also proposing the levy of interest, imposition of penalty under the various provisions of the Act. In the Show Cause Notice, there is no whisper about the consignment having been assessed provisionally and proposed to be finalised by considering the test report obtained fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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