I.P. Mukerji, J. - (1.) This writ challenges a show cause -cum -demand notice dated 31st May, 2013 issued by the Additional Director General of the Directorate of Revenue Intelligence, Kolkata Zonal Unit to the writ petitioner. It was issued under Sec. 124 read with Sec. 28 of the Customs Act. Mr. Mehta, learned advocate for the petitioner challenges this show cause notice at the very threshold. He submits that this show cause notice can neither be issued under Sec. 28 nor under Sec. 124 of the said Act. The imported goods were provisionally assessed to duty. Thereupon they were released. According to Mr. Mehta, final assessment was not carried out. Without carrying out the final assessment the above show cause notice could not have been issued according to it. He took me through Sec. 28 of the Customs Act, particularly to the meaning of "relevant date" as stated in Explanation 1 to the said section. The said Explanation is in the following terms. "Explanation 1. - For the purpose of this Section, "relevant date" means - (a) in a case where duty is not levied, or interest is not charged, the date on which the proper officer makes an order for the clearance of goods: (b) in a case where duty is provisionally assessed under Sec. 18, the date to adjustment of duty after the final assessment thereof or reassessment, as the case may be; (c) in a case where duty or interest has been erroneously refunded, the date of refund; (d) in any other case, the date of payment of duty or interest." He argued that invocation of Sec. 28 would have an effect on the demand for interest. Therefore, it was important to understand that where duty was provisionally assessed under Sec. 18 the date of adjustment of duty was on the final assessment thereof as provided in explanation (b). Here in this case there is no final assessment of duty as yet. Mr. Roy on the other hand took me through the affidavit -in -opposition filed on behalf of the respondents. It was specifically averred in Paragraphs 6 and 7 of the affidavit of the Deputy Commissioner of Customs affirmed on 23rd June, 2014 as follows: "6. Save and except what are matters on record I deny and dispute the statements made in the Paragraph 5 of the said affidavit. I deny and dispute that proceedings to finalize final assessments were put to otiose by the respondents. Rather, the position is that, in routine matters of finalization of P.D. Test Bond, as explained above, where the deposited amount of duty does not require to be interfered with, i.e., in absence of an adverse finding in the test results, sally no formal order finalizing assessment under Sec. 18(2) of the Customs Act, 1962 is issued, since such finalization of assessment without a change in the duty figure does not happen to be prejudicial to the interests of the importer. 7. Save and except what are matters on record I deny and dispute the statements made in the paragraphs 6 and 7 of the said affidavit. I state that the situation calls for any writ of or in the nature of mandamus commanding the respondent No. 1 to make final assessment of the bills of entry covered under the show cause notice, as the P.D. Test Bonds against those bills of entry have either already been finalized issuing formal orders thereto or deemed to have been finalized in view of absence of any adverse test reports. As explained above, since the act of finalization of the provisional assessments without any change in the duty amount is not prejudicial to the interests of the importer (member of the public), there appears to be nothing wrong on the part of the department to do away with strict observance of issuing formal finalization orders in such cases, under consideration of administrative efficacy."
(2.) According to the department there was final assessment. I do not accept the submission of Mr. Mehta, that assuming that there is only provisional assessment, no other step apart from final assessment can be taken. Provisionally assessed goods are required to be finally assessed under Sec. 18 of the Customs Act, 1962 but that provision assumes that there is no complaint regarding the goods or the importer. Here, Mr. Roy points out that there is an allegation of mis -declaration regarding the value of the goods. In such a case the department is empowered to issue a show cause notice under Sec. 124 of the Customs Act, 1962 read with Sec. 111 thereof.
(3.) But it does appear from the averment in the affidavit -in -opposition that although from all practical purposes the final assessment had been made of the goods but such final assessment was taken to be "deemed". There was no final order of assessment. Therefore, the department is enjoined to pass formal order of assessment. Sec. 28 of the Act would apply to the writ petitioner accordingly.;