TMI Blog2017 (7) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... duty, if any arise, is refundable. Since the excess paid duty is on the excess value, which is not the price paid or payable by the customer, the unjust enrichment is not applicable - refund allowed. Liquidated damages - scope of SCN - Held that: - if there is a deduction in the price due to liquidated damages, that is not permitted to be deducted from the transaction value for the reason that the liquidated damages is part of the cost to respondent that has to be considered as their expenditure which will not affect the transaction value. However, since this issue has not been considered by the Commissioner (Appeals), the matter needs to be remanded to the Commissioner (Appeals) only for a limited purpose to decide the issue - matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claims which is subject matter of the present case. The refund claim was rejected by the original authority on the ground that whatever price was charged at the time of clearance the same cannot be varied for any reason. The adjudicating authority also gave a finding that the deduction of price by the customer is not only on the basis of price variation but also on the legality damages which are nothing but an expenditure of the respondent and the same cannot be deducted from the transaction value. Accordingly, the excess paid duty is not refundable. Being aggrieved by the Order-in-Originals, the appellants filed appeals before the Commissioner (Appeals). The Commissioner (Appeals) allowed the appeals of the respondent on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is obviously provisional price and the final price which can be considered as the transaction value can be arrived at only after adjustment of the price on the basis of PVC price which is issued by IEEMA. Therefore, the price charged at the time of clearance of the goods is not transaction value. The transaction value is only when the price is finalised after making adjustment on the basis of PVC price available later on. 5. As regards the issue of liquidated damages, she submits that this issue is beyond the scope of show-cause notice which the adjudicating authority has gone into, hence on this ground refund cannot be denied. In support she placed reliance on the following judgments:- a) CCE Vs. White House Cotton Industries Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... simple reason that show-cause notice was issued for want of submission of various documents and after submission of the same, the adjudicating authority has come to a clear finding that the deduction of price by the customer is also on liquidated damages. However, the Commissioner (Appeals) has not given any finding on this issue. Therefore, this issue of liquidated damages is still not yet decided finally. In my considered view, if there is a deduction in the price due to liquidated damages, that is not permitted to be deducted from the transaction value for the reason that the liquidated damages is part of the cost to respondent that has to be considered as their expenditure which will not affect the transaction value. However, since this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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