Customs, Excise and Gold Tribunal - Mumbai
Sarabhai Chemicals Pvt. Ltd. vs Cce on 27 October, 2003
Equivalent citations: 2004(186)ELT70(TRI-MUMBAI)
ORDER C.N.B. Nair, Member (T)
1. This appeal of Sarabhai Chemicals P. Ltd. is directed against the order of remand dated 24.7.1998 passed by the Commissioner (Appeals) Central Excise & Customs, Vadodara. The issue involved in this appeal relates to the refund of Central Excise duty paid by the appellants in respect of physician samples. The physician samples in question were exempt from Central Excise duty under Notification NO. 48/77 dated 1.4.1977. This exemption was denied to the appellants and as a result, the appellants originally cleared the goods on payment of duty. But, later on, they filed a refund claim which was allowed by the original authority. The impugned remand order in question was passed on an appeal filed by the Revenue against the sanctioning of the refund. The reasons for remand are that, the original authority had not examined the aspect of unjust enrichment and that there was an appeal filed in the Supreme Court relating to the very issue against the decision of the Hon'ble Gujarat High Court in the case of M/s Suhrid Geigy & Ors. It is the appellants' case that there was no ground for remanding the case in as much as the question of unjust enrichment cannot arise in the facts of the appellants' case where the goods i.e. physician samples in question, were distributed free. The learned counsel has pointed out that the question of unjust enrichment can arise only in a case where the duty burden could have been passed on to the buyer of the goods. He submits that in the present case where the goods were undisputedly distributed free, there was no reason to entertain any doubt that the duty amount could have been passed on to the buyer. On the question of pendency of the appeal in the Supreme Court, the learned counsel pointed out that the Apex Court has already decided the case in favour of the appellants.
2. We have perused the record and have considered the submissions made by both sides. As it is a case of free distribution of physician samples, the question of unjust enrichment cannot arise in the appellants' case. The eligibility to exemption is also not in doubt. In the circumstances, the refund has been given rightly. An appeal against that had no merit. During the hearing of the case, the learned counsel has pointed out that during the pendency of the present appeal, an order had been passed by the original authority in terms of the remand order. Against that, an appeal was filed and that appeal had also been disposed of by way of remand.
3. In view of our finding that the original order granting refund was correct and legal, we allow the present appeal. The orders passed pursuant to the impugned order, cannot survive in view of our order allowing this appeal.
(Pronounced in the open court)