TaxTMI 
TaxTMI 
2017 (10) TMI 266
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....nd claim arisen out of Order-in-Appeal No.US/349/M-II/2011 dated 17/10/2011. The said order has attained finality as there is no further appeal by the Revenue. 3. Vide Order-in-Original dated 09/10/2012, the Assistant Commissioner was pleased to grant the refund observing as follows: "15. The core issue of valuation of physician sample under Section 4 of CEA, 1944 has been decided by the Commissioner (Appeals) by Order-In-Appeal dated 17.10.2011. Subject Refund claim is arising out of this O-In- A. As per Departmental instructions in this regard i.e. Para 5.3 of Chapter 9 of CBEC's 'Central Excise Manual, "However, no refund / rebate claim should be withheld on the ground that an appeal has been filed against the order giving ....
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....sessee also admitted this fact. Vide letters dated 28.09.2010 written to their customers viz. M/s. Mark Enterprises, M/s Mark India Cosmed Pvt. Ltd. and M/s Mark (India) Pharma, the Assessee had assured to return the said excess amount of duty in the event of settlement of dispute in their favour. The fact remained, however, that at the relevant time of filing refund claim, the amount of duty in relation to which the Assessee had filed subject refund claim, has not been borne by them and the burden of duty has been passed on to their buyers. Mere assurance that on receipt of refund claim the buyers will be reimbursed with duty excess duty element, is not suffice to by-pass the issue of 'unjust enrichment'. 18. However, on being p....
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....d and paid to the claimant under Section 11B of the Act only if he has not passed on the incidence of duty to any other person. The respondents had admittedly passed on the incidence of the duty paid by them including the disputed duty, which is subject matter of the refund, to their customers in the invoices issued by them under Rule 11 of Central Excise Rules, 2002. The disputed duty was paid by them during the period July, 2010 to 20.10.2011. The refund claim was filed on 25.07.2012 even thought the incidence of the duty for which the refund had been filed, had been fully passed on the customers. It was only after the personal hearing of the matter on 01.10.2012 that the respondents requested for time to repay the duty to the customers a....
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....ed 17/10/2011. The learned Counsel further states that the appeal filed by the Revenue against the said Order-in-Appeal dated 17/10/2011 before this Tribunal, stands withdrawn vide Order No. A/86154-86195/16/EB dated 25th February, 2015. Accordingly states that under the admitted facts and circumstances, the appellant having discharged the onus of unjust enrichment, the refund have been rightly allowed to them by the Assistant Commissioner and accordingly prays for setting aside the impugned Order-in-Appeal. The learned Counsel also relies on the ruling of Hon'ble Karnataka High Court in the case of CCE, Bangalore-I Vs. Om Pharmaceuticals Ltd. - 2011 (268) ELT 79 (Kar.) wherein under the facts, the duty collected was repaid in terms of ....
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.... affirmed by the Hon'ble Karnataka High Court in the case of CST, Bangalore Vs. Shiva Analyticals (I) Ltd. reported at 2009 (14) STR 301, wherein the Hon'ble High Court observed that the original authority found that the respondent-assessee have not rendered any taxable service. Further the Hon'ble High Court held that since the respondent issued credit notes towards refund of service tax, the refund order passed by the original authority is legal and proper. 6. The learned AR for Revenue have relied on the impugned order and have taken me in detail through the ruling of Apex Court in the case of Grasim Industries Ltd. (supra). 7. Having considered the rival contentions, I find that the ruling relied upon by the learned Co....