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TMI Blog2025 (3) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN or adjudication cannot be done. It is not the departments case that the second round of appeal was caused by the Lower Authority going beyond the remit of the First Appellate Authority's order. The Hon'ble Supreme Court in Gangai Vinayagar Temple Vs Meenakashi Ammal, [2009 (9) TMI 1095 - SUPREME COURT], held that res judicata is an ancient doctrine of universal application and permeates every civilised system of jurisprudence. This doctrine encapsulates the basic principles in all judicial systems which provide that an earlier adjudication is conclusive on the same subject-matter between the same parties. The issue could not have been reopened again in an appeal by the same Authority, nor could fresh issues which were omitted to be alleged in the first round of appeal be added in the second round, multiplying the litigation. A decision or order made by an Authority of competent jurisdiction is final, unless it is modified or reversed in appeal. The well settled principles of res judicata debars an Authority from exercising its jurisdiction to determine the lis if it has attained finality between the parties. This is based on public policy in order to put an end to litigation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les were to be determined under Rule 4 of the Valuation Rules 2000 in view of subsequent clarification issued by CBEC vide Circular dated 25.4.2005. Commissioner (Appeals) allowed a part of the refund amount claimed by the appellant holding that the CBEC's Circular dated 25.4.2005 is only prospectively in nature. Subsequently, the refund sanctioning authority vide Order in Original dated 3.8.2007 sanctioned the refund. Aggrieved by the OIO dated 3.8.2007, department preferred appeals before Commissioner (Appeals) on various grounds and the claim was kept in call book as similar issue in the case of Apex Laboratories was pending before the Tribunal. Subsequently, the Ld. Commissioner (Appeals) vide the impugned order allowed the appeals of the department and hence the assessee-appellant is before this Tribunal. 3. Shri M.N. Bharathi, Ld. Advocate appeared for the appellant and Smt. O.M. Reena, Ld. Authorized Representative appeared for the respondent. 3.1 The Ld. Counsel for the appellant submitted the brief facts of the case in the form of a time-chart as is reproduced in the Table below ; S. No. OIO / OIA Passed by AA Issue involved/ decisions made Order allowed / rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(D) dated 13.12.07 R-261/2007 dated 3.8.2007 05/2004 to 09/2004 1,12,066 10 41/07 (M III)(D) dated 13.12.07 R-262/2007 dated 3.8.2007 10/2004 to 03/2005 1,03,903 11 42/07 (M III)(D) dated 13.12.07 R-263/2007 dated 3.8.2007 02/2004 to 03/2004 87,089 The Ld. Counsel stated that the said Orders-in-original were taken up for review by the department and a second round of litigation started, before the Commissioner Appeals, on the grounds that Board's circular issued on 01.07.2002 to value the samples under Rule 8 ie., cost of production basis was not applicable and was legally not correct in the light of Boards subsequent Circular dated 25.4.2005. The appeal was filed without having challenged the primary OIA dated 25.01.2007 before the Tribunal. Meanwhile a Show Cause Notice dated 31.07.2008 was also issued to the appellants asking as to why the refund sanctioned vide the 11 Order in Original listed above should not be recovered as 'erroneous refund' and also why interest should not be recovered. The Commissioner appeals Vide Order in Appeal dated 22.09.2016, has set aside the refund. The Ld. Counsel submitted that the issue had attained finality vide the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the adjudicating authority while granting refund based on Order in Appeal No 08-11/2007 (M-II) dated 25.01.2007 had already examined this aspect and stated that the same would not apply as there was no sales. The said finding was not disturbed in the first appeal. The appellant relied on the following case laws in this regard: a. 2019 (370) ELT 485 (Tri. Ahmd) Tridoss Laboratories Ltd vs. Commissioner of C.Ex. & ST., Daman b. 2005 (186) ELT 328 (Tri. Del) German Remedies Ltd vs. Commissioner of Central Excise, Mumbai c. 2004 (168) ELT 70 (Tri Mumbai) Sarabhai Chemicals Pvt. Ltd vs. Commissioner of C.Ex. Vadodara. 4. We have gone through the appeal papers and have heard the parties to the dispute. We find that the issue involved in the dispute has been summarised by the Ld. Commissioner (Appeals) at para 2 of his Order dated 02.06.2009, while transferring the appeals to the call book. The same is reproduced below; "Briefly stated facts of the case are that the appellants are engaged in the manufacture of Pharmaceutical Products falling under Chapter 30 of the Central Excise Tariff Act, 1985. The appellants have cleared P or P medicines as free samples to physicians on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence Circular 2005 relating to valuation under Rule 4 of the Valuation Rules, 2000 also has retrospective effect; (iii) Adjudicating Authority presumed that duty burden had not been passed on to buyer of such goods and hence the sanctioned refund amount claimed was against the legal provisions; (iv) Hon'ble Apex Court in the case of Solar Pesticides (2000 (116) ELT 401 (SC)] held that even when the duty on the goods concerned was passed on either directly or indirectly to consumers, 'doctrine of unjust enrichment' shall apply and that this aspect was not considered by the adjudicating authority; (v) Adjudicating Authority should have rejected the claims as time barred 6. This is a case where the appellant initiated a refund claim based on Boards Circular. It was for the department to examine the claim from all angles, on fact and law, and issue a SCN if they choose to reject the claim. In doing so they were obliged to bring out all the objections that they had in sanctioning the claim, so that the noticee could effectively respond to the allegations being made at one go. Piecemeal issue of SCN or adjudication cannot be done. It is not the departments case t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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