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2014 (10) TMI 339 - AT - Central ExciseClandestine removal of goods - Clearance of sample fragrances without payment of duty - Held that:- Goods were cleared under covering letter mentioning the name of the item, its price, suggested application and dosage, if any, and the reference for submitting those samples. If the goods were not marketable, the question of mentioning a name, its price, application and dosage would not have arisen at all. Therefore, we do not find any merit in the contention that the goods are not marketable. As regards the reliance place on Bayer Diagnostics India Ltd. case [2001 (3) TMI 168 - CEGAT, MUMBAI], the facts of the said case were completely different and distinguishable. In that case, the goods under clearance were diagnostic regent kits and diagnostic reagent strips falling under the purview of Drugs and Cosmetics Act, 1940. Drugs samples were cleared without any packages and therefore, it was held that since there was a statutory requirement of packaging, which has not been complied with, it cannot not be held that the goods are marketable. In the case before us there is no mandatory or statutory requirement of packaging of the goods and therefore, the ratio of the said decision cannot apply. We uphold the confirmation of duty demand and consequently, the appellant also would be liable to pay interest on the duty demand confirmed. As regards the penalty imposed on the appellant, Section 11A (2B) provides for non-issue of a show-cause notice in case the duty demand is paid before the issue of show-cause notice. In the present case the appellant has fulfilled this condition and therefore, the question of imposition of penalty under Section 11AC would not arise at all. Accordingly, we set aside the penalty imposed on the appellant - Decided partly in favour of assessee.
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