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TMI Blog2017 (6) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - C/51629-51630/2014-CU [DB] - C/A/53953-53954/2017-CU[DB] - Dated:- 14-6-2017 - Mr. S.K. Mohanty, Member (Judicial) And Mr. Ashok K. Arya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed value. Subsequently, the Department further enquired into the matter through DRI and Consulate General of India at Hong Kong. On the basis of the report received from various agencies, show cause proceedings were initiated against the appellants, seeking for enhancement of value, payment of differential Customs duty and for imposition of penalties. The SCN dated 05.05.2011 was adjudicated vide order dated 06.02.1012, wherein the proposals made therein were confirmed. On appeal, the adjudged demands were upheld by the ld. Commissioner (Appeals). Hence, these present appeals were filed before the Tribunal. 3. The ld. Advocate appearing for the appellant submitted that the assessment in this case is provisional and has not been fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and for imposition of penalty. 7. We find from the endorsement in the Bill of Entry that the same was provisionally assessed as per the order dated 21.12.2006. It has also been accepted in the show cause notice as well as in the impugned order that the goods were assessed provisionally on execution of Surety Bond and on payment of Customs Duty on the provisionally assessed value of the imported goods. The authorities below have not confirmed the fact that after finalization of the Bill of Entry, the demands were confirmed against the appellant. Thus, in absence of any documentary evidence to show finalization of Bill of Entry, it has to be construed that the same is still provisional, awaiting finalization. 8. Section 28 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ths from the relevant date which in terms of sub-section (3)(ii)(b) of Section 11A of the Act (which is applicable in the instant case) in a case where duty of excise is provisionally assessed under the Act or the Rules made thereunder, the date of adjustment of duty after the final assessment thereof. A proceeding under Section 11A of the Act cannot, therefore, be initiated without completing the assessment proceedings. 9. Since the present proceedings were initiated under Section 28 ibid before finalization of the assessment, the same is not maintainable at this juncture. However, the Department is at liberty to take appropriate measures after finalization of the Bill of Entry in question. 10. In view of the above, we do not find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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