GERMAN REMEDIES LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) HEARD both sides.

(2.) THE appellant filed this appeal against order -in -appeal whereby the refund claim of the appellant was rejected. In this case the dispute is in respect of the excess duty paid in respect of the samples cleared by the appellant. The appellant initially paid duty under Section 4(a) of Central Excise Act thereafter filed a refund claim within the period of limitation relying upon the circular dated 1 -7 -2002. As per the circular the value of the sample is to be arrived at after taking into consideration the cost data and 115% of the cost. The adjudicating authority after verifying from the record produced by the appellant allowed the refund. The Revenue filed appeal and the Commissioner (Appeals) held that principles of unjust enrichment are applicable and allowed the appeal filed by the Revenue.

(3.) THE contention of the Revenue is that the finding of Commissioner is that the cost of physicians samples is included in the price of the regular pack sold on payment of duty, therefore, the appellant realized the duty paid on the samples and principles of unjust enrichment is applicable. We find that the dispute is regarding the value of samples distributed free. The adjudicating authority after relying upon the Board's circular held that the value of the samples is to be determined as per cost method. After verifying from the record produced by the appellant held that the duty paid on samples has not been realised by the appellant. The Commissioner (Appeals) in the impugned order held that it is a fact that in the case the cost of physicians sample is included in the price of regular pack sold on payment of duty. This finding of Commissioner (Appeals) is not sustainable on the ground that no evidence is taken into consideration whether the appellant included the cost of physician samples in the cost of regular pack. In respect of the unjust enrichment, we find that in the decisions relied upon by the appellant it is specifically held that principles of unjust enrichment are not applicable in respect of the samples which were distributed free of cost. In these circumstances, the impugned order is set aside and the appeal is allowed.