DEBANGSU BASAK, J. - (1.) A show-cause notice and the consequent order in original are under challenge in the present writ petition on the ground of lack of jurisdiction.
(2.) Learned advocate appearing for the petitioners submits that, the petitioner imported certain drinks termed as "Power Energy Drinks". Initially the petitioners classified such drinks under Serial No.22021010. Such classification was found to be incorrect by the department. By a writing dated December 16, 2015, the petitioner was required by the department to classify it under serial number 22029090. The differential amount was claimed from the petitioner. The petitioners accepted such direction reclassified the drinks as directed by the authorities and paid the differential amount. Subsequent thereto, further imports were classified as Serial 22029090. The department took exception to such classification and issued the impugned show-cause notice. The impugned show-cause notice required the petitioners to answer to the five queries as noted below:- "3.1.1. The said imported goods i.e. "Power Energy Drink" and "Bulldozer Energy Drink" imported under provisional assessment should not be classified under Chapter Sub-heading under 22021090 for the purpose of final assessment of duty thereon in accordance with the Customs Tariff Act, 1975. 3.1.2. The differential Customs Duty under duties of customs IGST Rs. 9,02,292/- and GST Compensation Cess Rs. 10,82,750/- (in total Rs. 19,85,042/- Rupees Nineteen Lakh Eighty Five Thousand Forty Two only) as mentioned in Annexure -A, should not be recovered from them under section 28 of the Customs Act, 1962. 3.1.3. Interest at the rate fixed by the Central Government under Section 28AA, read with section 18(3), of the Customs Act, 1962, should not be recovered from them on the amounts referred at 3.1.2 above from the first day of the month in which the duty is provisionally assessed till the date of payment thereof. 3.1.4. Penalty under regulation 5 of Customs (Provisional Duty Assessment) Regulation, 2011 should not be imposed upon them. 3.1.5. Bond executed in relation to provisional assessment should not be enforced to recover the amounts of duty, interest and penalty."
(3.) The petitioners replied to such show-cause notice by the impugned order in original. The adjudicating authority returned the following order:- "In view of the forgoing discussions and findings, I pass the following order:- (1) The goods imported under Bill of Entries covered in Annexure-A to the Show Cause Notice is considered and held correctly classifiable under Customs tariff item/heading 22021090 under the schedule to the Customs Tariff act, 1975. Accordingly, the declared classification under Customs tariff/heading 22029090 is hereby rejected. (2) Bills of Entry wherever mentioned as provisionally assessed in Annexure-A to the Show Cause Notice, now stands finally assessed under Customs Tariff item/heading 22021090 of the First schedule to the Customs Tariff Act, 1975 and duty be recovered from them under section 18(2) of the Customs Act, 1962 and in terms of the bond executed during the provisional assessment. (3) I determine the differential Customs duty payable by M/s. Jain International, Karimganj, Assam as Rs. 19,85,042/- (Rupees Nineteen Lakh Eighty Five Thousand Forty Two only) in respect of the Bills of entries shown at Annexure-A to the Show Cause Notice under Section 18(2) idid and order for recovery of the duty so determined from them. (4) Before accrual of the relevant date i.e. in a case where duty is provisionally assessed under Section 18, the date of adjustment of duty after the final assessment thereof or re-assessment, as the case may be, I refrain from invoking Section 28 of the said Act for the purpose of recovery. (5) I order for recovery of interest involved on the total differential duty of Rs. 19,85,042/- (Rupees Nineteen Lakh Eighty Five Thousand Forty Two only) from M/s. Jain International, Karimganj, Assam, under Sections 28AA and under section 18(3) of the Customs Act, 1962, in respect of Bill of entries as mentioned in Annexure-A to the Show Cause Notice, which were provisionally assessed. (6) The Board has rescinded "The Customs (Provisional Duty Assessment) Regulations 2011 vide notifications 113/2016-Cus (NT) dated 22nd August 2016, since Section 18 itself lays down the procedure to be followed in the case of Provisional Assessment Accordingly, I refrain from imposing the penalty to the said importer." ;