ORDER
Gowri Shankar, Member (T)
1. Appeals taken up for disposal with consent after waiving deposit.
2. The appellant imported consignments of propane and uthane. These consignments on arrival were assessed to duty provisionally under Section 18 of the Act. In the order impugned in this appeal, the Commissioner finds that prior to clearance, the propane and uthane were mixed and was cleared was liquified petroleum gas which was liable to special additional duty of customs. He has ordered that the bill of entry was assessed finally and duty and special duty of 4% be recovered.
3. The notice upon which the Commissioner adjudicated proposed recovery of duty under Section 1 of Section 128 of the Act invoked the extended period of limitation. It also proposed confiscation of the goods. The contention of the Counsel for the appellant that the Commissioner has in effect ordered recovery of duty short-levied and that this act is primary since the relevant date specified in the explanation under Sub-section (2) of Section 28 has not yet arrived, has to be accepted. The Commissioner’s order is not one of simply finalising the provisional assessment. He confirmed the proposal to the notice to recover duty. In his order he has ordered that the bill of entry had assessed finally and simultaneously asked recovery of special additional duty of customs which he found payable. The fact that the bill of entry has not yet been finally assessed is clear from paragraph 36 of his order where he has said that he refrained from invoking a penal provisions of the Act “as the goods were assessed provisionally and the final assessment by the concerned officer would now be initiated.” Clearly therefore there was no basis for confirming the duty short-paid. That is primary and can only take place after the goods are finally assessed to duty.
4. The appeal is accordingly allowed and the impugned order set aside. It will be open to the department to initiate proceedings for short-levy in accordance with law after the goods are finally assessed.