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TMI Blog2018 (1) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy of investigation. 4. The relevant facts after filtering out unnecessary details, respondent herein imported certain quantities of coal claiming exemption in Customs Duty in terms of Notification No.21/2002; consequent investigation which were conducted in May, 2010 and the respondent was direct to deposit an amount which was complied under protest. Respondent filed a refund claim on 22.03.2011 in respect of such an amount paid under protest and the said refund claim was returned by the Adjudicating Authority stating that the same is premature and the payment is in connection with the show cause notice which is pending for adjudication. Aggrieved by such returning of a refund claim, an appeal was preferred to the First Appellate Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation. The findings of the First Appellate Authority are in para 7 & 8 which we reproduce: 7. In the light of the events narrated above, the documentary evidences and the case laws cited in appeal, the sole point to be decided is whether differential amount of duty collected during investigation under TR-6 challan dated 24.05.2010 is authorized by the provisions of Customs Act, 1962 or the same is without an authority of law as contended in appeal and hence refundable as claimed by the appellant. It is an undisputed fact that differential duty has been collected during investigation, which the appellant has paid under protest on 24.05.2010. The SCN proceedings under Sec. 28 of Customs Act, 1962 have been initiated only on 22.03.2011 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble division bench of High Court in the matter of M/s Naresh Kumar & Company Vs. Union of India reported in [2010-19-STR-161 (Cal)] in a similar case held "'we do not find any provision that one has to compulsorily pay the tax in advance. According to us, this payment in this case is not required to be paid under the law compulsorily. When the petitioner alleges that it is not a voluntary payment, we feel that the payment is not according to the law and liability to make payment will arise only when the tax liability is ascertained and not before that. Here there is no ascertainment of tax liability and it is the case of the respondent that SCN is to he issued for determination of tax liability. The authority concerned has no jur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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