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TMI Blog2019 (12) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... er various of Bills of Entry; The Bills of Entry were provisionally assessed for want of documents and test reports. The Bills of Entry were subsequently finalized and Asst. Commissioner of Customs sanctioned refunds totaling to Rs. 9,62,728/- and however credited the same to the Consumer Welfare Fund. The Asst. Commissioner held that importer could not prove the excess duty paid and thus could not satisfy the conditions of Section 18 (5) of Customs Act, 1962. The Asst. Commissioner has also held that the high sea sales value is lower than the price at which the first stage supplier had purchased the goods from overseas. Aggrieved by the orders of the Asst. Commissioner, appellants have filed appeals before Commissioner (Appeals-II), Trichy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import value paid or payable by the appellants cannot be less than the price at which the shipper abroad sold the cargo to high sea seller. Ld. A.R also reiterates the findings of OIO. 4.1 Ld. Counsel for the respondents submits that it is not correct to say that the amounts reflected in the invoices issued by their sellers were representative of the true transaction value; in terms of the contract there was provisions for variation of the quantity and the value of the imported coal on the basis of GSV value as well as moisture content. Under these circumstances, the provisional assessments were made and on finalization, the value actually paid or payable by them should have been considered by the original authority. Ld. Counsel also produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rived on the basis of final quantity of coal in terms of the contract. It is not the case of the department that the respondents have paid any amount over and above such transaction value. Therefore, in terms of Section 14 of the Customs Act, 1962, the transaction value requires to be accepted as done by the Ld. Commissioner (Appeals). We also find that in terms of the above cited circular, high sea sales commission cannot be notionally arrived at 2% particularly, when there is documentary proof to that extent. We find that Ld. Commissioner (Appeals) has found as follows : "08. With respect to the issue of adding 2% as notional value for High Sea Sales. The Board's Circular no.32/2004-Cus dated May 11.2004 clearly states inclusion of 2% c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Unjust Enrichment does not apply to the four cases which forms part of this appeal proceedings." Ld. Commissioner (Appeals) has categorically held that there is a lapse of two to seven months in posting the general voucher vis-a-vis the payments made as duty is only an assumption and the balance sheet as on 31.3.2016 very clearly shows these amounts as receivables under current assets from the department and that this was an ample proof that the application for refund is not hit by unjust enrichment. 6. In view of the above, we find that there is no reason as to why we should interfere with the order of the Ld. Commissioner (Appeals). We find that the orders passed by Commissioner (Appeals) are legally tenable and sustainable. 7. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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