TMI Blog2005 (2) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... aintained. Manufacturer can preserves the samples of their product for some period for investigation of complaints, if any. No duty should be charged on these samples but an account of such samples should be maintained in the prescribed form. If at any time the manufacturer desires to clear these samples then these should be assessed to duty as applicable. Therefore, the control samples as long as these are kept in the factory and not cleared from there, these will not be chargeable to duty if proper account is maintained. When these samples are cleared for test or for destruction at that time assessment should be made for duty, if any, leviable as per law. Since the reference was made to the Larger Bench only on the issue whether control s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id Ltd. v. C.C.E. - 2002 (148) E.L.T. 1183 (2) Mapra Laboratories Pvt. Ltd. v. C.C.E. - 2001 (127) E.L.T. 695 (3) Aristo Pharmaceuticals Ltd. v. C.C.E. - 2000 (121) E.L.T. 386 wherein it was held that taking of samples for being retained inside factory in accordance with Drugs and Cosmetics Act, 1940 to be regarded as deemed clearance as per explanation to Rules 9 and 49 of erstwhile Central Excise Rules, 1944. He, therefore, pleaded that in the absence of any exemption, notification the samples retained in the factory for control purposes are chargeable to Central Excise duty. He also pleaded that Para 3.3.1 of Supplementary Instructions of C.B.E. C.'s Manual is applicable only for the period from 1-9-2001 onwards and the instructions are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut notice to the Range Officer, provided a proper account of receipts and the quantity utilised in the test is maintained in the laboratory. Issue entries for the goods already accounted for in RG I or EB 4 (or both) should be made in the register in the form given in Appendix XVIII and put up to the Range Officer for his information. While no duty will be charged on these samples, remnants of samples after the analysis must be returned to the process. Certain manufacturers 'also preserve the samples of their product for some period for investigation of complaints, if received. No duty should be charged on these samples also, but an account of such samples should be maintained in the form prescribed in Appendix XIX". 4.He stated that in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and packaged condition under sub-rule (1) of the aforesaid Rules, it has come in the proceedings that these samples were kept for a period well beyond the date of expiry printed thereupon. The goods which have crossed the date of expiry cannot be marketed and applying the drawing test of marketability, the goods cannot be called to be dutiable goods. Therefore the question of short payment or non-payment of duty upon them also does not arise". He also referred to Rules 9 and 49 of the Central Excise Rules, 1944 and pleaded that the explanation to Rule 49 makes it clear that deemed clearance will only be considered when the excisable goods are utilised as such or are used for manufacture of any other commodities in a continuous process or ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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