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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 ..... f fertilizers and have imported Phosphoric Acid in bulk from M/s. Maroc Phosphore S.A., Casablanca, Morocco under a sale and purchase agreement vide three Bills of Entry. The respondents have self-assessed the Bills of Entry as the Risk Management System (RMS) in ICES had facilitated the same and there was no assessment and examination of the goods by the Department. The provisional unit price of the impugned goods (Phosphoric Acid in bulk) was USD 715 per MT and accordingly import duty was paid. Thereafter, the unit price was finalized by the seller at USD 620 per MT. since the respondent had paid excess duty, refund claim was filed on 07/11/2016 with Assistant Commissioner(Refunds), Mangalore seeking refund of excess paid duty of Rs. 47,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 5(2) of the Customs Appeals Rules, 1982 and further the clause of unjust enrichment as discussed by the appellate authority is beyond the scope of Order-in-original dt. 29/06/2016. 5.1. On the other hand, the learned counsel for the respondent defended the impugned order and submitted that the price variation in the value of imports was known to the Department at the time of import. He referred to various clauses of the sale and purchase agreements entered into between the supplier and the respondent and Clause 5.4 provides that till the finalization of the price for the relevant contract year, the supplies of phosphoric acid shall continue to be delivered and as per Clause 5.4.3, the provisional prices will be invoiced by the supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/08/2017 after the Order-in-Original dt. 29/06/2017 had been issued and therefore the respondents had sufficient cause for not producing the same before the original adjudicating authority. He also submitted that refund claims cannot be rejected only on the ground that the assessment of Bill of Entry was not put to challenge, especially when the duty stands paid. In support of this submission, he relied upon the following decisions:- i. Micromax Informatics Ltd. Vs. UOI & Ors. [2016-TIOL-978-HCDEL] ii. Aman Medical products Ltd. Vs. CC, Delhi [2010(250) ELT 30 (Del.)] iii. Bharat Electronics Ltd. Vs. CC, Bangalore [2017(352) ELT 245 (Tri. Bang.)] iv. Surendra Industries Vs. CC, Jaipur [2018-TIOL-1452-CESTAT-DEL] v. CC, Nhava Sheva Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional. More over the variation clauses of sale and purchase agreement entered into between the respondent and the supplier clearly show that the price was provisional. Further I find that on finalization of price, the respondent filed refund claim though inadvertently provisional assessment was not done. Further I find that in terms of Rule 5(1)(b) of the Customs (Appeals) Rules, 1982, the assessee is entitled to produce any evidence before the adjudicating authority, if that evidence was in existence. Further I find that 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. Further I find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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