JYOTI BALASUNDARAM, J. - (1.)M/s. Radiant Acrylic (P) Ltd. imported a consignment of 46.936 MT of Acrylic Sheets offcut multi walled panels with closure sections of acrylic from M/s. Sineximco Pvt. Ltd. Singapore vide Bill of Entry No. 50 dated 10.6.96 and declared the C and F value for the goods as US 14456.29 equivalent to Rs. 5,06,693/ -. The consignment was released provisionally on payment of Customs duty of Rs. 4,77,474/ -. Provisional assessment was made by taking C&F value @ US 308 PMT. On enquiry by DRI, it came to light that the consignment was purchased by M/s. Sineximco Pvt. Ltd. Singapore @ US 750 PMT for a total value of US 35804.25. This was the same as shown in the export declaration filed at Antwerp, Belgium. On the basis of the above document, show cause notice alleging undervaluation and proposing recovery of differential duty and penalty on the importer as well as its partners was issued, which was adjudicated by the Commissioner of Customs who enhanced the assessable value to Rs. 12,69,264/ - confirmed differential duty demand of Rs. 6,33,132/ - together with interest under the provisions of Section 28AB of the Customs Act, 1962, held that the impugned goods were liable to confiscation and in the absence of the goods for confiscation, he ordered that they be redeemed on payment of a fine of Rs. 2,00,000/ -. Penalty of an amount equal to duty was imposed on the importer and Rs. 2,00,000/ - on one of its partners, Shri Sanjay Gupta and penalty of Rs. 1,00,000/ - each on four other partners. Hence these appeals.
(2.)At the outset, Shri C. Hari Shankar, learned counsel raises a preliminary point that the demand is not sustainable as the demand notice has been issued perior to finalization of assessment which is not sustainable in the light of Tribunal's order in ITC Ltd. Vs. CCE, Mumbai 2004 (170) ELT 33 which has relied on the Apex Court decision in Serai Kella Glass Works Pvt. Ltd. Vs. Collector 1997 (91) ELT 497 (SC). He, therefore, urges that the impugned order may be set aside and the appeals allowed on this ground alone without going into the merits of the demand.
(3.)Prayer is opposed by the learned SDR, Shri S.M. Tata who submits that by the impugned order the assessment has been finalized and he relied on the Delhi High Court decision in the case of Duncans Agro Industries Ltd. Vs. Union of India and Others 1989 (39) ELT 511. He, therefore, submits that the appeals cannot be decided on the basis of the preliminary plea and the merits would require to be considered.