2024 (10) TMI 810 - AT - Central Excise

Refund of excise duty - duty paid over and above 6% on the product All Star Pen cleared as free of cost physician sample - duty paid at the rate of 6% on the product All Star Pen cleared as free of cost physician sample - principles of natural justice - HELD THAT - Firstly, the appellant have not sold the physician sample, as the same was cleared free of cost so not only the duty even the principle amount towards the cost of physician sample has not been passed on to any other persons Moreover, the appellant have shown the amount of duty as receivable in their books of account and also submitted CA certificate to this effect. Therefore, taking a stock of all these undisputed fact, it can be conveniently concluded that the appellant have not passed on the incidence of duty paid in access for which the refund is sought for by the appellant. Accordingly, the refund of Rs.58,59,456/- is not hit by the mischief of unjust enrichment. Initially the appellant have filed a refund claim of duty paid at the rate of 6% on the ground that the physician sample is eligible for exemption from whole of the duty. However, as of now the issue of rate of duty i.e. 6% in terms of Notification No. 12/2012-CE dated 17.03.2012 has been finally decided by this Tribunal in the appellant s own case SANOFI INDIA LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE ST, BHARUCH 2024 (3) TMI 978 - CESTAT AHMEDABAD and also by the revisionary authority order No.40-41/2023-CX(WZ)/ASRA/MUMBAI dated 07.02.2023. Therefore, now as regard the issue of rate of duty is settled at 6% and attained finality. Therefore, the appellant is not eligible for refund as they have correctly paid the duty @ 6%. Appeal disposed off.

Summary

Issues:
1. Appeal No. E/10942/2018 - Whether excise duty paid over and above 6% on the product All Star Pen, cleared as a free physician sample, is refundable.
2. Appeal No. E/10148/2019 - Whether excise duty paid at the rate of 6% on the product All Star Pen, cleared as a free physician sample, is refundable.

Analysis:

Appeal No. E/10942/2018:
The appellant sought a refund of excise duty over 6% on the product All Star Pen, cleared as a free physician sample, contending that unjust enrichment did not apply. The appellant demonstrated through ledger and CA certificate that the duty was not passed on as it was accounted for as receivable in their books. Citing various judgments, the appellant argued that since the samples were not sold and both the goods' value and duty were not recovered, unjust enrichment did not occur. The tribunal agreed, noting that the duty was not passed on, and allowed the refund of Rs.58,59,456.

Appeal No. E/10148/2019:
Initially, the appellant claimed a refund for duty paid at 6% on physician samples, seeking exemption. However, subsequent decisions by the tribunal and revisionary authority established the duty rate at 6%, rendering the appellant ineligible for a refund. The issue of the duty rate being settled, the tribunal dismissed the appeal as the appellant correctly paid duty at 6%.

In conclusion, the tribunal allowed Appeal No. E/10942/2018, finding no unjust enrichment in the refund claim, while dismissing Appeal No. E/10148/2019 as the duty rate issue had been conclusively settled. The judgment was pronounced on 16.10.2024.