Wrong statutory provision in customs recovery renders the demand unenforceable and beyond jurisdiction.

A customs demand could not be sustained because the show-cause notice and adjudication order invoked Section 28A of the Customs Act, 1962, which did not support recovery in the manner attempted; the ordinary recovery mechanism lay under Section 28. As the demand was raised under an inapplicable provision, it was unenforceable in law, and the customs authorities lacked jurisdiction to confirm it on that basis. The impugned order was therefore set aside and the appeal succeeded in favour of the assessee.

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Issues: Whether the customs duty demand could be sustained when the show-cause notice and adjudication order invoked an inapplicable provision and whether the customs authorities had jurisdiction to confirm the demand.

Analysis: The demand in the show-cause notice and the adjudication order was made under Section 28A of the Customs Act, 1962. The provisions referred to were examined and it was found that Section 28A did not support recovery in the manner attempted, whereas the recovery mechanism ordinarily lies under Section 28 of the Customs Act, 1962. Since the demand had been raised under the wrong provision, it could not be enforced. Once the demand itself was found to be unsustainable in law, the customs authorities were held to lack jurisdiction to proceed further on that basis.

Conclusion: The demand was held to be unenforceable and the impugned order was set aside in favour of the assessee.

Final Conclusion: The appeal succeeded and the duty demand and consequential order could not be sustained in law.

Ratio Decidendi: A fiscal demand must be made under the correct enabling provision of the statute; if recovery is initiated under an inapplicable provision, the demand is unenforceable and cannot be sustained.

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