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TMI Blog2009 (12) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners were only given an opportunity to make their submissions before final assessment, cannot be accepted, since the petitioners have also been directed to show cause why the goods should not be held confiscable and why penalty should not be imposed - The writ application is disposed of - 526 of 2002 - - - Dated:- 4-12-2009 - Indira Banerjee, J. REPRESENTED BY : Shri Swapan Dutta, Counsel, for the Respondent. [Judgment]. The petitioners carry on business of import of Vatted Malt and Grain Spirit Compound , hereinafter referred to as the said goods, which is sold to different distilleries for manufacture of whisky. 2. Prior to 1st January, 1996, the said goods admittedly fell under Tariff Heading 2208.10 and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question involved in this writ application is whether any show cause notice under Section 28 of the Customs Act, 1962 can be issued, unless there has been final assessment. 8. In International Computers Indian Manufacturers Ltd. and Anr. v. Union of India Ors. reported in 1981 (8) E.L.T. 632 (Del.), cited on behalf of the petitioners, the Division Bench of Delhi High Court inter alia held that Section 28 was not attracted in case of provisional assessments, but in case of completed assessments, when duty had not been levied or had been short levied. 9. In Commissioner of Central Excise and Customs, Mumbai Ors. v. ITC Ltd. Ors. reported in 2007 (1) SCC 62 = 2006 (203) E.L.T. 532 (S.C.), the Supreme Court held as follows : Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 9-B inter alia at the instance of the assessee. Such a recourse is resorted to only when the conditions laid down therein are satisfied viz. where the assessee is found to be unable to produce any document or furnish any information necessary for assessment of duty on any excisable goods. Whereas provisional duty is levied in terms of sub-rule (1) of Rule 9-B, final assessment is contemplated under sub-rule (5) thereof by reason of which the duty provisionally assessed shall be adjusted against the duty finally assessed and in the event the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee will pay the deficiency or will be entitled to a refund, as the case may be. Ultimately, thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner dated 12th March, 1997, as also copies or even the reference of books and encyclopaedia, referred to in the show-cause notice, had not been supplied to the petitioners in spite of requests. 13. Dealing with the allegation of the petitioner of violation of natural justice, Mr. Swapan Dutta, appearing on behalf of the respondents, submitted that the petitioner s Advocate had duly been allowed inspection of documents. Moreover, the petitioner had given detailed reply to the show cause notice. No case was made out of any prejudice caused by reason of non-supply of any particular document. 14. Even assuming that there has been no violation of natural justice, no show-cause notice could be issued, since admittedly, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finalization of assessment. Moreover, it is patently clear that a demand in terms of Section 28(1) has been raised. The nomenclature also shows that the impugned notice is a demand-cum- show cause notice. 20. The argument that by the impugned show cause notice, the petitioners were only given an opportunity to make their submissions before final assessment, cannot be accepted, since the petitioners have also been directed to show cause why the goods should not be held confiscable and why penalty should not be imposed. There could be no question of confiscation, penalty or interest till after final assessment. 21. Mr. Datta s argument of there being an element of finality attached to provisional assessment, is difficult to appreciate. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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