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TMI Blog2017 (6) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... on u/s 28, which culminated in the impugned order dated 5th March 2014 in our opinion is not sustainable and will not stand for judicial scrutiny - appeal allowed - decided in favor of appellant. - C/53139-53140/2014-CU[DB] - C/A/53626-53627/2017-CU[DB] - Dated:- 31-5-2017 - Mr. S.K. Mohanty, Member (Judicial) And Mr. V. Padmanabhan, Member (Technical) Present for the Appellant: Mr. S. Vasudevan, Advocate, Mr. Devender, Advocate Present for the Respondent: Mr. R.K. Maji, D.R Mr. Nanthuk, D.R. ORDER PER: S.K. MOHANTY This appeal is directed against the impugned order dated 5 th March 2014 passed by the Commissioner of Customs, Inland Container Depot, New Delhi. 2. Brief facts of the case are that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the impugned order. 4. Heard both sides and perused the records. 5. The short question involved in this appeal for consideration by the Tribunal is whether before finalization of bills of entry, which are provisionally assessed under Section 18, the Department can proceed to confirm the duty demand and to impose penalty by resorting Section 28 ibid. 6. It is an admitted fact on record that the bills of entry were provisionally assessed and before their finalization, the Department initiated show cause proceedings under Section 28 ibid. Section 28 ibid deals with recovery of duties not levied or short levied or erroneously refunded. On perusal of the said statutory provisions, it reveals that in order to invoke the said statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 7. Since the present proceedings were initiated under Section 28 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 bills of entry in question. 8. In view of above, we do not find any merits in the impugned order. Accordingly, after setting aside the same, we allow the appeals in favour of the appellants. [Dictated and pronounced in the open Court) - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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