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2019 (3) TMI 1735 - AT - Central ExciseRecovery of erroneous Refund of excise duty paid - issuance of protective SCN - method of valuation of free physician samples - appellant was paying excise duty on the pro rata of the trade value of the trade pack. As per the Circular No. 643/34/2002-CX, dated 1-7-2002 it was clarified that the excise duty on removal of free physician samples should be on the value at cost construction method i.e. 115% of cost of manufacture, refund was claimed for differential amount and was granted - later on Circular issued on 1-7-2002 was superseded by Circular No. 813/10/2005-CX, dated 25-4-2005 - whether the Circular will have retrospective effect or prospective effect. HELD THAT:- There is no dispute that initially refund was sanctioned only as a compliance of this Tribunal’s order wherein the refund matter was finally decided in favour of the appellant. Since Revenue had not filed any appeal against the said Tribunal’s order, the eligibility of the refund attained finality. Thereafter, neither refund can be denied nor any recovery of the said refund can be made. Revenue had no authority to issue a protective SCN as the Revenue was bound by the Tribunal’s order whereby the refund matter was finally decided. Therefore, the issuance of the protective SCN is ab initio illegal, hence the same will not sustain. Appeal allowed - decided in favor of appellant.
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