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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 ..... ber (Technical) Shri M. Chandra Bose, Additional Joint Commissioner (AR) for the Appellant. Shri V. K. Jain, Advocate for the Respondent. ORDER [Order per: M.V. Ravindran] This appeal is directed against Order-in-Appeal No.20/2014 (G) Cus dated 22.08.2014 and is filed by the Revenue. 2. Heard both sides and perused the records. 3. The issue that falls for consideration in this case is regarding the refund opting amount paid by the respondent during the pendency 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 cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 300] is wrongly relied upon and distinguishable. 6. After considering the submissions made by both sides and perusal of records, we find that the First Appellate Authority in the impugned order has held that, on the date of filing of the refund as filed by the respondent, there was no duty liability assessed and hence the refund claim needs to be allowed and subsequent initiation of show cause notice proceedings and determination of duty cannot validate illegal recovery made during the investigation. 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings and determination of duty cannot validate a wrong and illegal recovery made earlier; neither can be a hurdle in refunding the duty which has been collected illegally at relevant point of time. The duty subsequently determined under the adjudication order of the Commissioner dated 29.06.2012 will be recovered as per provisions of law from the appellant but the duly illegally collected will have to be refunded to the appellant. Both are two independent proceedings and their consequences will follow accordingly, The 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 compulsori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in that case and the only dispute regarding rate of interest payable to assessee was resolved by High Court in which HC held that the interest was payable as fixed under Section 11BB of CE Act. 7. We find that reliance placed by the First Appellate Authority in the judgment of Hon'ble High Court of Punjab Haryana is correct and as also the judgment of the Hon'ble High Court of Karnataka in the case of M/s Naresh Kumar Company Vs. Union of India [2010 (19) STR 161]. In our view, the ratio of these judgments fortified the findings of the First Appellate authority and the conclusion reached by him is correct. 8. In view of the facts and circumstances of this case, we hold that the impugned order is correct and legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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