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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 ..... ributed free, the assessable value would be 100% / 115% of the cost of production in terms of Rule 8 of the Valuation Rules, 2000. As the value adopted by the appellant for the samples cleared under Rule 4 of the Valuation Rules, 2000 was more than 100% / 115% of the cost of production, they filed 11 refund claims for the period from 01.09.2001 to March 2004. The Ld. Adjudicating Authority vide Order in Original dated 27.1.2006 rejected a part as time-barred and rejected the balance amount stating that valuation of physical samples 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. Subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34/07 (M III)(D) dated 13.12.07 R-255/2007 dated 3.8.2007 1.1.2002 to 28.2.2002 4,07,750 4. 35/07 (M III)(D) dated 13.12.07 R-256/2007 dated 3.8.2007 March 2002 2,64,224 5. 36/07 (M III)(D) dated 13.12.07 R-257/2007 dated 3.8.2007 April 2002 2,63,127 6. 37/07 (M III)(D) dated 13.12.07 R-258/2007 dated 3.8.2007 May 2002 3,88,810 7 38/07 (M III)(D) dated 13.12.07 R-259/2007 dated 3.8.2007 June 2002 3,18,121 8 39/07 (M III)(D) dated 13.12.07 R-260/2007 dated 3.8.2007 July 2002 4,06,395 9 40/07 (M III)(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 25.4.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to the written submission of the Ld. AR dated 05.03.2025, the appellant has stated that the Department/Respondent has not raised the plea of monetary limit as a reason for not filing an appeal against the Order in Appeal, before this Hon'ble Tribunal during the hearing on 04.03.2024 or earlier. Moreover, the issue is no longer res integra in light of the decision in M/s. Varun Beverages Limited Vs Commissioner of Customs, GST, and Central Excise, Jaipur [2022 (2) TMI 731 - CESTAT New Delhi]. Further regarding unjust enrichment, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not on cost of production basis and hence Circular 2002, issued to value the samples under Rule 8 of Valuation Rules, 2000 i.e. cost of production basis is not applicable and thus the Adjudicating Authority's decision to process the refunds claims based on Circular, 2002 was legally not correct; (ii) Hon'ble Supreme Court in the case of Cadbury India Limited [2006-TIOL-88-SC-CX] held that Board's Circular No.692/8/2003-CX dated 13.02.2003, on valuation method of captively consumed goods had retrospective effect 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the First Appellate Authority which partly allowed the appeal leading to the sanction of the refund. We are not concerned here with the correctness or otherwise of the conclusion arrived at by the Commissioner Appeals in the second round of appeals, but with the fact that a settled position of law was allowed to be reopened without following established legal principles. The binding nature of the first appellate order on the parties to the litigation would endure, as it had not been appealed against, even in circumstances where the basis of which it was made is subsequently held to be an incorrect application of the relevant tax law. To do otherwise is in breach of judicial discipline and is destructive of the basic principles of the administration of justice. 9. The stand taken by revenue that it may be due to the monetary limit for filing the appeal before CESTAT that the department would not have filed appeal before CESTAT against the original Comm (A) order dated 25/01/2007, is a mere assumption. No such claim was made or document produced to evidence the same, either in the second round of appeal or through a cross objection before us. 10. Having regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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