ORDER
Gowri Shankar, Member (T)
1. Larsen & Toubro Ltd., appellant in appeal C/8/02, imported between June 1995 and September, 1995 steel plates and other goods intended to use for fabricating two tanks for storage of ethylene a plant at Ratnagiri. Of Finolex Industries Ltd., appellant in appeal C/6/02. The import was in pursuance of an order placed by Larsen & Toubro for Finolex. The importer claimed the benefit of concessional assessment in heading 98.01 related to project import on the ground that the goods were required of 30% increase in the installed capacity of the plant of Finolex, who is engaged in the production of polyvinyl chloride resin for which the principal raw material is ethylene. The benefit of the concessional rate of duty was granted provisionally.
2. Subsequently the department discovered that the storage tanks were not at any stage used for storage of the goods and had in fact leased to Bharat Petroleum Corporation Ltd. for storage by it of liquified petroleum gas and therefore concluded that the benefit of the project import of assessment would not be available to it and issued notice proposing to seize the goods on merits. Finolex was also given a copy of the notice. After considering the contentions raised before him by both Larsen & Toubro and Finolex Industries Ltd., Deputy Commissioner passed orders holding that the benefit of the assessment in heading 98.01 would not be available to the goods, ordering it to pay differential duty. The order made it clear that if the importer fails to pay duty, the tank in question would be seized. This order having been confirmed on appeals by both parties, the matter are before us.
3. Among the contentions that are taken before us by the appellants is that the demand for duty was premature. The goods having been provisionally assessed, the question of any short levy could not arise till the assessment was finalised under Section 18 of the Act. Notice under Section 28 could only be issued thereafter.
4. It is contended that no finding has been given by either the adjudicating or the appellate authorities.
5. The departmental representative attempts to uphold the order of the Commissioner (Appeals) but he is unable to answer on this specific point.
6. In its judgment in Godrej Boyce the Bombay High Court had before it an identical question arising out of the provisional assessment order under Rule 9B of the Central Excise Rules, 1944. It accepted the contention of the appellant that notice under Section 11A of the Central Excise Act would not be issued before the relevant date. The date specified in Section 11A of the Central Excise Act, the date of adjustment of duty after finalisation of the provisional assessment. This not having done, the demand under Section 28 of the Act was premature. The same consideration would apply to provisional assessment under section Section 18 of the Customs Act. Sub-section (1) of Section 28 of the Act provides for issue of notice for recovery of duty which has not been levied or short levied or erroneously refunded within one year in the case of imports and six months in other case or extended from the relevant date. Sub-section (3) defines relevant date and Clause (b) of this sub-section provides that the “relevant date” in case where duty is provisionally assessed under Section 18, the date of adjustment of duty after final assessment.” The notice that was issued to the appellant which has resulted in the adjudication or did not propose to finalisation of the provisional assessment but merely demanded duty under Section 28 of the Act. That notice is therefore premature. The correct course would have been to finalise the provisional assessment and if there was any short levy, if required issue a notice under Section 11A thereafter in the event that the department was of the view that there was short levy or non levy or erroneous refund.
7. The appeals are accordingly allowed and the impugned order set aside.