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TMI Blog2019 (4) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner also ordered that provisional assessment done under Section 18 of the Customs Act, 1962 (for short Act) in respect of subject consignment at the time of import to be finalised. 2. Briefly stated, the fact of the case for disposal of the appeal is that the appellant imported consignment of synthetic spinning waste from Taiwan and filed Bill of Entry No. 1698 dated 21.4.1999 through its authorised clearing agent M/s Barua and Chowdhary. The consignment was examined by the Customs authority and the same was assessed provisionally under the provisions of Section 18(1) of the Act with the direction to representative of the sample of the goods and sent for test. The goods were allowed to be cleared at the strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arification Dy. Chief Chemical Examiner stated which is reproduced as under :- "CL 353-IMP (41A) The sample is uniformly cream coloured synthetic filament tow. It is made of Crimped, parallel drawn filaments having uniform length and diameter. The length of tow is exceeding two meters. The Decitex per filament is less than 67 and the total measurement of tow is more than 20,000 decitex. The tow as received is not twisted. It is free from fused fibres and extraneous matter. It is composed wholly of Acrylic. CL 354-Imp. (4/5) The sample is in the form of while crimped fibrous mass having staple fibres of spinable length, uniform Denior and Diameter. It is free from extraneous matter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2015 by Hon'ble Kolkata High Court, wherein it was held that without finalisation of the assessment the issuance of Show Cause Notice under Section 28 of the Act is not permissible and thus the issuance of Show Cause Notice was held to be without jurisdiction. 3.1 Further, the ld. Advocate also relied upon the decision of Hon'ble Kolkata High Court in Writ Petition No. 817 of 2010 in the case of Pramod Kumar Nathani Vs. Union of India & Ors. wherein it was held that there cannot be question of application of provisions of Section 124 of the Act. The confiscation of the goods cannot be sought by the Customs relying on the provisions of Section 28. The said section requires the proper officer, in a case where duty has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also relied upon the decision of Hon'ble High Court of Bombay in the case of Gujarat Alkalies & Chemicals Ltd. Vs. CC (Import) - 2006 (204) ELT 237 (Bom.) wherein it is held that as per the order of provisional assessment under Section 18(1) of the Act, the relevant date will be after the finalisation of the assessment. As per the provisions of Section 18(2) of the Customs Act, the adjustment is required to be made after the order of the proper officer. In view of above, the ld. Advocate vehemently argued that the Show Cause Notice in this case has been issued without finalisation of the provisional assessment and, therefore, the demand raised against the appellant and penalty imposed on the various officers of the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment being finalised under Section 18(2) of the Customs Act. In such a case there is also no scope of imposing any penalty on the appellant and also on the various officers of the appellant company. In view of the above and considering the various case laws cited by the ld. Advocate, we find that the issue at hand is squarely covered by these decisions. 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 sustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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