ARINDAM SINHA, J. - (1.) The Court : The petitioner has challenged issuance of show cause notice dated 20th March, 2010 under Section 124 read with Section 28 of the Customs Act, 1962 as in excess of the power and jurisdiction of the issuing authority.
(2.) Mr. Chowdhury, learned Advocate appears on behalf of petitioner and relies on order dated 25th February, 2010 made in the petitioner's earlier writ petition, disposing of the same. There was direction made that recording the grievance of the writ petitioner of final assessment not made with respect to 35 Bills of Entry in connection with imported goods, in view of the test report having been received, there is no difficulty in concluding final assessment proceedings and such should be concluded. Mr. Chowdhury submits, final assessment has yet not been made by the proper officer. He submits, there can be no question of application of the provision of Section 124 in the facts. Confiscation of goods cannot be sought by Customs by relying on the provisions of Section 28. The said section requires a proper officer, in a case where duty has been provisionally assessed under Section 18, to make adjustment upon final assessment, the date of adjustment being the relevant date for the period provided to be made applicable by the provisions. Final assessment not having been made, there cannot be issuance of a show cause notice under the said section within the period prescribed from the relevant date, since there is no relevant date in the present case as final assessment and adjustment has not been made.
(3.) Ms. Bhargava, learned Advocate appears on behalf of Customs and submits, the petitioner had made a mis-declaration as has been discovered. Hence, the issuance of the show cause notice in adjudication of the show cause notice, order-in-original dated 1st April, 2010 bears the admission of the petitioner regarding such mis-declaration.;