9911796707
TMI Blog2017 (1) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... valuation of the goods was to be done by taking 115% of the cost of production of the manufactured goods. Accordingly, there was excess payment of duty. The excise duty payment was made under protest by M/s Atra Pharmaceuticals Ltd and got it reimbursed from the appellant. M/s Atra Pharmaceuticals filed their refund claim for excess duty paid which was rejected by the adjudicating authority on the ground of unjust enrichment as duty incidence has been passed on to another person i.e. Merck Limited. 2. The said order-in-original had been challenged by M/s Atra Pharmaceuticals Ltd before the appellate authority, who vide order-in-appeal No. BPS(334)/2004 dated 27/09/2004 ordered that the refund is admissible on merit but the amount was requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... armaceuticals Ltd. Excise duty was paid by the manufacturer, M/s Atra Pharmaceuticals Ltd on behalf of the appellant. Therefore, rejection of refund claim on time-bar is not correct as the same refund was sanctioned and claimed by the appellant. They further submit that the refund is on account of excess duty paid in respect of free physician sample. Therefore, there is no question of passing of the incidence of excise duty paid by M/s Atra Pharmaceuticals Ltd and reimbursed by the appellant. It was also submitted that since the duty was paid under protest the same will be equally applicable for the refund claim filed by the appellant. Therefore, the refund cannot be denied on the ground of time-bar. They relied upon the following judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made by both the sides. We find that, as regards unjust enrichment, the issue is not that where the appellant has passed on the incidence of duty borne by them to any other person but the Asstt. Commissioner in the order rejected the claim on two grounds i.e., firstly, once the refund claim was credited to Consumer Welfare Fund the same cannot be considered to be refunded to another party i.e. the appellant, and secondly, the claim is barred by limitation. Commissioner (Appeals) has already held that the first ground is not valid inasmuch as the claimant is not at fault if amount has been credited to the Consumer Welfare Fund. We also agree and hold that even though the amount was credited to the Consumer Welfare Fund, if the buyer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harging section whereas Section 4 is a computation section which covers assessment and collection of excise duty. That the basis of assessment under Section 4 was the real value of excisable goods which included manufacturing cost and manufacturing profit but excluded selling cost and selling profit. That the price charged by the manufacturer for sale of the goods represented the real value of the goods for assessment of excise duty. In the case of Atic Industries Ltd. v. H.H. Dave, Asstt. Collector of Central Excise reported in [1978 (2) E.L.T. (J444) (S.C.) = AIR 1975 SC 960], this Court has held that the resale price charged by a wholesale dealer who buys goods from the manufacturer cannot be included in the real value of excisable goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent that the distributor was entitled to claim refund of "on account" payment made under protest by the manufacturer without complying with Section 11B of the Act." 7. In view of the above observation of the Hon'ble Supreme Court, benefit of 'payment of duty under protest' made by the manufacturer cannot be extended to the buyer. Therefore, considering the above view of the Hon'ble apex Court the present appellant cannot enjoy the benefit of payment of duty under protest by the manufacturer. We, therefore, following the aforesaid decision of the Hon'ble Supreme Court, find that the refund claim filed by the appellant is beyond one year and therefore, the same is time-barred. We therefore, do not find any infirmity in the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
