DEBANGSU BASAK,J. - (1.) The Court : An order in original dated February 27, 2015, passed by the adjudicating authority acting in respect of a show cause-cum-demand notice issued under Section 124 read with Section 28 of the Customs Act, 1962 and the reply thereto is under consideration in the present writ petition.
(2.) Learned advocate for the petitioner submits that, the petitioner had imported certain materials into India. The petitioner had applied under Section 18(1) of the Customs Act, 1962. The application under Section 18(1) of the Act of 1962 has not been finally adjudicated upon under Section 18(2) of such Act. Without a final adjudication under Section 18(2) of the Act of 1962, the authorities have sought to invoke Section 28 of the Act of 1962, read with Section 124 thereof. He submits that, the authorities are entitled to invoke Section 28 of the Act of 1962, if and only if, the petitioner is guilty of not paying the levy or short-paying the same or for the reasons specified in Section 28 thereof. None of the grounds available to invoke Section 28 of the Act of 1962 exists in the facts of the present case. The levy payable by the petitioner is yet to be adjudicated upon, for the petitioner to have defaulted in payment of the same and Section 28 being invoked.
(3.) The petitioner had obtained provisional release of the goods upon an application for such purpose. 34 consignments were taken possession of by the Customs authorities. 10 were sent for testing. The balance 24 are yet to be tested. In respect of all the 34 consignments, the petitioner has not been informed of the final assessment under Section 18(2) of the Act of 1962. He refers to the affidavits-in-opposition filed by both the Customs authorities as also the Director of Revenue Intelligence (DRI) and submits that, both the authorities have not given any details as to whether or not the application under 18(2) of the Act of 1962 has attained finality. On the contrary, he submits that, the two affidavits support the fact that, the Customs authorities are yet to dispose of the application finally under Section 18(2) of the Act of 1962. Consequently he submits that, the invocation of Section 28 , read with Section 124 of the Act of 1962 is bad in law.;