TMI Blog2011 (4) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... earance of the physician samples, than the transaction value is to be determined as per Section 4(1)(a) of the Act - As per the Tribunal in the case of Themis Laboratories Pvt Ltd., vide order No.A/187 to 189/2011/EB/C-II, the issue is decided in favour of assessee - It is held that the appellants have correctly valued the physician samples cleared by them on transaction value/as per CAS-4 - Decided in favour of assessee. - E/1123 & E/1248/07 - - - Dated:- 13-4-2011 - Mr. B.S.V. Murthy, Mr. Ashok Jindal, JJ. Shri.Bharat Raichandani, Advocate for appellant Shri. V.K. Singh, SDR, for respondent Per: Ashok Jindal 1. Both the assessee as well as the Revenue are aggrieved by the impugned order passed by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at assessable value as per the provisions of Rule 8 of the Central Excise Rules, 2000. (Valuation Rules) i.e. 115-110% of cost of production. It was further observed that the assessable value of the physician samples was lower than the assessable value of the similar goods cleared in the course of normal trade. Therefore, it was observed that the provisions of Rule 4 of the Valuation Rules are appropriate to arrive at the assessable value in respect of clearances of physician samples, since the assessee is also clearing the same goods in the course of normal trade. Therefore, show-cause notice was issued, duty demands were confirmed. Therefore, the matter was assessed and demands prior to 25/04/2005 were dropped and demands for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be. 7. This Tribunal has dealt this issue in detail in the case of Themis Laboratories Pvt Ltd., supra, wherein this Tribunal has observed as under:- From a plain reading of Section 4 (1) (a), it is clear that in case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale the assessable value shall be the transaction value and in any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed. In this case, we find that the appellants have cleared their goods to the buyers, who are admitted not the related person, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the facts are not similar to the case in hand. In fact in that case, the delivery and distribution of physician samples were under the control of the assessee himself and the medical representative (who are the employees of the representative) distributed free samples to the physicians even after the sale of samples to M/s. Aditya Medisales Ltd., Bhiwandi. The sale to M/s.Aditya Medisales Ltd., was deliberately created on paper and therefore, cannot be said to be a transaction on principal to principal basis, the price is not the sole consideration. Hence, the reliance placed by the DR is not of no help. As held by this Tribunal, in the case of Mayer Health Care Pvt Ltd., (supra) that the samples are not distributed by the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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