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TMI Blog2007 (11) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... o their laboratories are liable for duty. 2. The appellant's contention is that testing was carried out in terms of Drugs and Cosmetics Rules, 1945. The said test was mandatory and the drugs cannot be marketed unless it satisfies the conditions stipulated in the Drugs Control Regulations. The appellants also relied on a large number of judgments. However, their plea was not accepted and the Commissioner (Appeals) proceeded on the basis of the Tribunal ruling rendered in the case of M/s. Vera Laboratories Limited by Final Order No. 1485/2003, dated 18-11-2003 wherein it has been held that when samples are removed for testing purpose, they are liable for duty. 3. The learned Consultant submits that in their own case, this Bench, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE, Rajkot [2006 (206) E.L.T. 908 (Tri. - Mumbai)] (iii) Exon Laboratories Pvt Ltd. v. CCE, Mumbai [2006 (205) E.L.T. 952 (Tri. - Mumbai)] (iv) Glaxo Smithkline Pharmaceuticals Ltd. v. CCE & C, Aurangabad [2003 (162) E.L.T. 612 (Tri. - Mumbai)] (v) Bayer Diagnostics India Ltd. v. CCE&C, Vadodara [2001 (133) E.L.T. 140 (Tri. - Mumbai)] (vi) Waxpol Industries Ltd. v. CCE., Jamshedpur [2000 (126) E.L.T. 1001 (Tribunal)] Following ratio of the above cited decisions, I allow the appeals with consequential relief. 6. This appeal has been filed by the Revenue against the Order-in-Appeal No. 41/2006, dated 28-1-2006 passed by the Commissioner of Customs & Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) failed (i) to note that the instructions issued in CBEC' CE Manual (which has statutory validity) clarifying that duty should be collected on samples before their removal for test purposes unless otherwise exempted by any notification; (ii) to follow the decision of CESTAT of the jurisdictional Bench on the same issue; (iii) to differentiate the present case from the case laws, which are not applicable to the present case, but on relying them; and (iv) to note that those samples were drawn after attaining RG1 stage, but not prior to RG1 stage. 7. The learned JDR reiterated the 'Grounds of Appeal' of the Revenue. 8. Shri Seshagiri Rao, learned Consultant said that the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage is reached only after the samples are tested. In view of the above, I hold that no duty can be demanded on the impugned goods. The Commissioner (Appeals) has rightly followed the Tribunal decisions in the matter. Therefore the impugned order is legal and proper. The appeal of the Revenue has no merit and the same is dismissed."
5.1 As can be seen from the above findings, the facts are identical to the facts in the present case and pertains to the assessee itself. Hence, the ratio of the above ruling is clearly applicable to the facts of the present case. Respectfully following the same, the impugned order is set aside and appeal allowed with consequential relief, if any.
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