A demand under Section 28 of the Customs Act, 1962 cannot be raised if the assessment of the imported goods was provisional and had not been finalized, as Section 28 is a power to review a final assessment.

Per: Shri P. Dinesha

M/s.Ankit Impex & M/s.S.B.B. International, New Delhi had imported the item self declared as ‘Recycled LDPE Granules’ vide various Bills of Entry listed in the Annexure A & B of the Show Cause notice including Bill of Entry No.268168 dated 22.07.2009 classifying them under CTI 39019090 and paid Basic Customs Duty (BCD) @ 5% by availing benefit of exemption under Sl.No.477 of the Customs Notification No.21/2002, Education Cess 3% and CVD 8% (totally 18.624%). The Bill of Entry was filed through the Customs Broker M/s.Premier Shipping Agencies, Chennai and assessed provisionally and goods were released on Bond.

2. It appears that based on specific intelligence to the effect that various importers of plastic re processed granules including M/s.S.B.B. International and M/s.Ankit Impex, Delhi were resorting to undervaluation of their imports and thereby evading payment of appropriate duties of Customs, investigation was initiated by the DRI resulting in consequential search at the premises of Shri Vijay Gupta, Director of M/s.S.B.B. International and Shri Ankit Gupta, Proprietor of M/s.Ankit Impex in the presence of S/Shri Vijay Gupta Ankit Gupta and other independent witnesses. During the search, it appears that incriminating documents including actual invoice bearing No.YS 090711 dated 07.07.2009 pertaining to Bill of Entry No.268168 dated 22.07.2009 was recovered and seized under Mahazar dated 17.07.2009. Further, 2 MTs of recycled plastic granules totally valued at Rs.1,28,865/ were also seized under mahazar dated 07.01.2020.

3. It is the case of the Revenue that imported items viz. Recycled LDPE Granules are not assessable with the value declared in the Bills of Entry listed in Annexure A & B to the SCN, but on the value re determined with the actual Invoice recovered and residual values submitted by the DRI for levying correct duty; apart from invoking other penal provisions of the Customs Act, 1962 imposing upon the importers. Hence, a Show Cause Notice dt. 23.08.2013 was issued to the Appellants proposing to reject the declared value in respect of the goods imported vide 27 Bills of entry listed in Annexure A & B, to re determine the value in respect of goods imported vide Bill of Entry No.268168 dated 22.07.2009, to demand differential duty, to confiscate the goods under Section 111 (m) of the Customs Act, 1962 and to impose penalty under Section 112(a)/ Section 114A and Section 114A A of the Customs Act, 1962. After due process, the Adjudicating Authority passed Order in Original No.45/2023 dated 29.03.2023 whereby he rejected the assessable value declared by the Importers, re determined the value of goods as proposed in respect of Bill of Entry No.268168 dated 22.07.2009, demanded differential duties, confiscated the goods by giving option of redeeming the goods on payment of redemption fines, appropriated the payments made voluntarily by importers and imposed penalties under Section 114A /114AA ibid. Aggrieved by the order of Adjudicating Authority Appeal was filed before Commissioner (Appeals), Chennai which having been rejected vide Order in Appeal No.1231 & 1232/2024 dated 12.12.2024, the present Appeals are filed by Appellants Importers.

4. Heard Shri Prem Ranjan Kumar, Advocate for the Appellants Importers and Ms. Rajni menon, Ld. Deputy Commissioner for the Respondent Revenue. We have carefully considered the rival contentions and also the documents placed on record.

5. A perusal of Order in Original makes it clear that the Adjudicating Authority has held that the importe