TMI Blog2014 (4) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... rman Pharma provided the said Nirman Pharma had contested the duty liability under Section 4A of the Central Excise Act, 1944, on Physicians Samples, before the lower authority. I find that the impugned orders of the lower authorities rejecting the refund claims though on different reasons, needs to be upheld - Decided against assessee. - E/769-770/2011 - A/10173-10174/2013-WZB/AHD - Dated:- 15-1-2013 - Shri M.V. Ravindran, J. Shri Somanathan Pattari (Manager), for the Appellant. Shri Manoj Kutty, AR, for the Respondent. ORDER These two appeals are directed against Order-in-Appeal No. DA/332-333/DMN/VAPI-I/2010-11, dated 31-3-2011. 2. The relevant facts that arises for my consideration in these appeals are that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Act, 1944 for adopting any valuation. It is his submission that provisions of Sec. 4A are not applicable for valuation, but Section 4 is applicable. He relied upon the decision of the Tribunal in the case of Sidmak Laboratories (India) Ltd. - 2009 (242) E.L.T. 255 (Tri.-Ahmd.) which has been upheld by the Apex Court [2011 (270) E.L.T. A90]. He further submits that even the Board Circular No. 813/10/2005-CX., dated 25-4-2005 relates to the valuation of samples distributed free of cost is not applicable in the case where the same is cleared on transaction value. It is also his submission that in the case of Omni Protech Drugs Pvt. Ltd. [2011 (274) E.L.T. 377 (T)], it was held that transactional value to be the assessable value whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question involved in these appeals is whether the appellant herein is eligible to claim the amount which has been paid in excess by M/s. Nirman Pharma. Without going into any further, the first and foremost question that arises for my consideration is whether the appellant herein is eligible for refund of the so-called excess duty paid by M/s. Nirman Pharma. I find that M/s. Nirman Pharma has assessed the Physician s Samples cleared by them and the said assessment of duty liability is discharged by M/s. Nirman Pharma as a manufacturer of excisable goods. In my view, the assessment which is not challenged by manufacturer after discharge of Central Excise duty cannot be challenged by the recipient of such products. Undoubtedly the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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