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TMI Blog2019 (3) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... nce was in existence - e-mails received from the supplier were after the Order-in-original was issued and therefore the respondent was justified in producing the same before the Commissioner(Appeals) who considered the same. There is no infirmity in the impugned order which is upheld by dismissing the appeal of the Revenue. - C/20227/2018-SM - Final Order No. 20225/2019 - Dated:- 27-2-2019 - SHRI S.S GARG, JUDICIAL MEMBER Dr. J. Harish, Jt. Commissioner (AR) For the Appellant Shri Ravi Raghavan, Advocate For the Respondent ORDER Per: S.S GARG The Revenue has filed the present appeal against the impugned order dt. 08/12/2017 passed by the Commissioner(Appeals) whereby he has allowed the appeal of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural justice, rejected the request for amendment of the Bills of Entry under Section 149 of the Customs Act, 1962. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) who set aside the Order-in-Original and allowed the appeal of the respondent/assessee. Hence the present appeal by the Revenue. 3. Heard both sides and perused records. 4. Learned AR for the Revenue submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the provisions of law. He further submitted that the final invoices indicating lower unit price of USD 620 were not submitted at the time of clearance of goods. He also submitted that it is the responsibility of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides for Price Per Metric Ton as USD 620. He also submitted that the time of filing the Bill of Entry, the Department was well aware of the fact that the price adopted was a provisional price and accordingly the duty was paid on such provisional price and subsequently, the price was finalized and due to reduction in the price per metric ton, the refund became due to the respondent. Learned counsel also submitted that in terms of Rule 5(1)(b) of the Customs (Appeals) Rules, 1982, assessee shall be entitled to produce any evidence before the Commissioner(Appeals) whether oral or documentary, other than the evidence produced during the course of proceedings before the adjudicating authority, where the appellant was prevented by sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sankhla Udyog Vs. CCE, Jaipur-II [2014(314) ELT 350 (Tri. Del.)] v. CC CE, Hyderabad-III Vs. Premier Explosives Ltd. [2008(226) ELT 729 (Tri. Bang.)] 5.3. Further as far as unjust enrichment is concerned, the learned counsel submitted that question of unjust enrichment does not arise as the price of the fertilizers are directly fixed and controlled by the Government of India, Ministry of Chemicals and Fertilisers. Further excess duty paid by the respondent is recorded under the head account of receivables in their books of accounts and the respondent has also produced Chartered Accountant certificate dt. 23/11/2016 certifying that the refund claim does not attract the doctrine of unjust enrichment. 6. After considering the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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