TMI Blog2009 (2) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... tands decided by the Larger Bench decision of the Tribunal in the case of Blue Cross Laboratories Ltd. v. Commissioner of Central Excise Mumbai [2006 (202) E.L.T. 182. (Tri.-LB)] as also in the case of Cadila Pharmaceuticals v. Commissioner of Central Excise, Ahmedabad as reported in 2008 (232) E.L.T. 245 (Tri.-LB) = 2008 (88) RLT 809 (CESTAT-LB). It has been held in the said judgment that the physician samples have to be valued for the purpose of payment of duty, on pro rata basis by adopting the cost of regular commercial packs. As such, submits the Ld. Advocate that he is not challenging the method of valuation adopted by the lower authorities but seeks to challenge the impugned order on the ground that physician samples are not marketab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng units are also selling physician samples to their distributors, who are further distributing the same free of cost, a query was put to him that the said fact establishes the saleability of the samples, Ld. Advocate submitted that such sale of physician samples, even to the dealers or distributors are in breach of law. However, Ld. Advocate fairly agreed that an identical issue was raised and rejected by the Tribunal in the case of Crossland Research [2002 (150) E.L.T. 212 (T)] as also in the case of BHEL and other cases. 4. Countering the above arguments, Ld. DR submits that it is not the actual sale of samples which is the criteria but it is the capability of the samples for being bought and sold in the market, which is the criteria a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle should be capable of being sold. It is not the appellant s case in the present appeal that the samples meant of free distribution, cannot come to the market for being bought and sold, on account of short shelf life etc. Their only plea is that since there is prohibition under the Drugs and Cosmetics Act on their sale, the appellants are unable to sell the same. 6. Ld. Advocate has drawn our attention to the Hon ble Supreme Court decision in the case of Cipla Industries v. Commissioner Central Excise, Bangalore [2008 (225) E.L.T. 403 (Supreme Court)], laying down that the onus for proving the marketability lies upon the Revenue, the product produced must be a distinct commodity known in the common parlance to the commercial community, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Ranbaxy Laboratories Limited v. Commissioner Central Excise, Bhopal [2001 (131) E.L.T. 634 (Tri.-Delhi)] and stands rejected. For better appreciation, we reproduce Para 5 :- 5. We are not able to appreciate the appellant s contention that Physician Samples are not goods. Items involved in the present dispute are proprietory medicines which are manufactured by the appellants and sold to the public through medical shops. Doctors prescribed them and patients consumed them. No contention has been raised that the medicines so sold are not goods. Bulk of the medicines manufactured by the appellants are sold in the trade. Small portion of the same medicines is distributed free to Doctors for popularizing the medicines. Doctors, in turn di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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