ORDER
S.L. Peeran, Member (J)
1. The Revenue has aggrieved with the Commissioner (Appeals)’s order No. 132/2003-C.E., dated 12-3-2003 by which he has accepted the appeal of the assessee seeking refund amount on the duty paid on the physician’s samples of P & P Medicines. The duty had been paid under protest after observing the formalities prescribed under Rule 233B of C.E. Rules. The physician’s samples were distributed free of cost and therefore, the Commissioner (Appeals) held that the burden of duty has not been passed to any other person. The Revenue contend in this appeal that the provisions of unjust enrichment would also apply to the facts of the present case and the mere fact that the physician’s free samples have been sold is no ground to hold that the duty had not been passed on to any other person. It is further stated that no documents were produced to prove that excess duty paid had not been passed on to any other person.
2. We have heard both the sides in the matter and we find that the reasoning adopted by the Commissioner (Appeals) is just and proper in the light of the Apex Court judgment rendered in the case of Sinkhai Synthetics and Chemicals P. Ltd. v. CC, Aumngabad – . The Apex Court has held that when the duty has been paid under protest, the refund is not hit by the bar of unjust enrichment. Furthermore, we notice that the appellants have borne the incidence of duty by supplying the free samples to the physicians. They have not collected duty from the physicians to whom the free samples have been given. Therefore, the question of holding that the duty has been passed on to the customers does not arise. The finding given by the Commissioner (Appeals) is correct in law. There is no merit in this appeal and the same is rejected.
(Operative portion of this Order was pronounced in open Court on conclusion of hearing)