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TMI Blog2012 (10) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... er of being provisional for every purpose and cannot be treated as final in respect of a matter not considered. What is material is the ultimate character of the order of assessment whether it is provisional or final. It is undisputed that the Bills of Entry which were filed by the appellant were provisionally assessed by the adjudicating authority and before finalization of the claim, Show Cause Notice was issued for recovery of duty from the appellant, thus once a Bill of Entry is provisionally assessed, unless the said provisional assessment is finalized by the lower authorities, demand of duty, if any, under Section 28 of Customs Act, 1962 will not arise - remand the matter back to the adjudicating authority to reconsider the issue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argo covered under Bill of Entry No.1387 and 1383 were already cleared, 60 MTs of the cargo covered under Bill of Entry No.1487 was seized. 3. A Show Cause Notice dt.08.09.2004 was issued asking the appellant to show cause as to why the Customs duty of Rs.7,41,453/- should not be recovered along with interest under Section 28 of Customs Act, 1962; penalty of Rs.7,41,453/- should not be imposed under Section 114A ibid; the seized goods should not be confiscated under Section 111(o) of Customs Act, 1962 and penalty under Section 112(a)(ii) should not be imposed. M/s Gopal Overseas was also asked to show cause as to why penalty under Section 112(b)(ii) should not be imposed. The appellant contested that they were bonafide purchaser of the DE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority. The first appellate authority directed the appellant to deposit an amount of Rs.2 lakhs as a condition to hear and dispose the appeal and the appellant having done so, took up the appeal for disposal and concurred with the views of the adjudicating authority and upheld the Order-in-Original. 6. Ld. Counsel appearing on behalf of the appellant would take us through the Order-in-Original and submit that the appellant has produced the copies of Bills of Entry which indicate that the said Bills of Entry were provisionally assessed. It is his submission that once a Bill of Entry is provisionally assessed, the demand under Section 28 of Customs Act, 1962 cannot be raised till the finalization of said Bill of Entry. It is his submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry which were filed by the appellant were provisionally assessed by the adjudicating authority and before finalization of the claim, Show Cause Notice was issued for recovery of duty from the appellant. 11. In our view, once a Bill of Entry is provisionally assessed, unless the said provisional assessment is finalized by the lower authorities, demand of duty, if any, under Section 28 of Customs Act, 1962 will not arise. We gain strength in our view from the judgment of Hon'ble High Court of Chennai in the case of IOCL (supra) and with respect we reproduce the said judgment. The question referred to us is as to whether in the facts and circumstances of the case, the provisional assessment resorted to under Rule 9B read with Rule 173 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very purpose and cannot be treated as final in respect of a matter not considered. What is material is the ultimate character of the order of assessment whether it is provisional or final. 4. We therefore, answer the question referred to us in favour of the assessee, and against the Revenue. 12. We find that the above said judgment clearly talks about that no demand can be raised unless provisionally assessed Bills of Entry are finalized. 13. In this case, since the Bills of Entry are provisionally assessed, it is imperative that the lower authorities should first finalise the provisional assessment and then raise the demand, if any, on the appellant in accordance with the law. 14. In view of the foregoing, without expressing any op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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