TMI Blog2023 (9) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... arly on the pack that it is not for sale. Since the goods is not for sale and no MRP is affixed on the product, the goods cannot be valued under Section 4A as the same is not for retail sale. Accordingly, the correct provision for valuation of physician sample is section 4, where the Excise duty is payable on the transaction value. This issue is no longer res-integra as the same has been finally decided by the Hon ble Supreme Court in the case of COMMR. OF CENTRAL EXCISE CUSTOMS, SURAT VERSUS M/S SUN PHARMACEUTICALS INDS. LTD. ORS. [ 2015 (12) TMI 670 - SUPREME COURT] the relevant order of the Hon ble Apex Court has held that Excise duty is payable in terms of section 4(i)(a) not under section 4A but on pro rata value of good cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inds. Ltd- 2017 (350) E.L.T. A61 (S.C) Commissioner of Central Excise, Vapi Vs. Sun Pharmaceutical Inds. Ltd. 2017 (350) E.L.T. 289 (Tri.- Mumbai) Sun Pharmaceutical Industries Vs. Commissioner of C.EX., Surat-II 2005 (183) E.L.T. 42 (Tri.- Mumbai) Commissioner of C.EX., Thane-I Vs. Meghdoot Chemicals Ltd. 2022 (380) E.L.T. 531 (S.C.) Final order No. 11279/2023 dated 19.06.2023 3. Shri Ajay Kumar Samot, Learned Superintendent (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both the sides and perused the record. We find that the issue in brief in the present appeal to be decided is the physician Sample which is sold to dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors from a doctor or concerned to whom free distribution of sample packs had been made. Further there was no allegation in the show cause notice that the price at which the goods were sold by the assessee to the distributors was not sole consideration. In fact, the genuineness of the price at which the physician samples were sold by the assessee to the distributors was not even doubted. It is only on the ground that the goods were not actually sold by the distributors to the physicians, which was the ground on which it was contended that the case was not covered under Section 4(1)(a). The CESTAT, therefore, in our opinion, has gone beyond the Show Cause Notice and on this ground alone, the judgment of the CESTAT dated 27-2-2009, which is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of any excisable goods for which a tariff value has been fixed under sub-section (2) of section 3. (3) For the purpose of this section, - (a) assessee means the person who is liable to pay the duty of excise under this Act and includes his agent; (b) persons shall be deemed to be related if - (i) they are inter-connected undertakings; (ii) they are relatives; (iii) amongst them the buyer is a relative and distributor of the assessee, or a sub-distributor of such distributor; or (iv) they are so associated that they have interest, directly or indirectly, in the business of each other; (c) place of removal means - (i) a factory or any other place or premises of production or manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence that since physician samples were not meant for sale by distributors but were to be given free of cost to the physicians, the assessee had charged lesser price. This statement of the assessee had not been doubted. The only reason in the show cause notice given was that since the physician samples were given free of cost by the distributors and no price was charged, the case was not covered by the provisions of Section 4(1)(a) of the Act. This is clearly fallacious and wrong reason. The transaction in question was between the assessee and the distributors. Between them, admittedly, price was charged by the assessee from the distributors. What ultimately distributors did with these goods is extraneous and could not be the relevant co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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