TMI Blog2011 (2) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Naresh Thacker, Advocate for appellant - for Themis Laboratories Shri.Prasad Paranjape, Advocatefor appellant - for Meghdoot Chemicals Shri.N.A. Sayyad, JDR, for respondent Per: Ashok Jindal 1. All the three appeals are having a common issue, hence are taken up together and disposed of by this common order. 2.The facts of M/s.Themis Laboratories Pvt Ltd., are that it was noticed that the appellant was clearing the trade packs of medicaments manufactured by them on payment of Central Excise duty for which the assessable value was arrived as per the provisions of Section 4A of the Central Excise Act, 1944 i.e. based on MRP after availing the prescribed abatement in terms of notification No.02/2005-CE (NT) dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessable value in case of job work basis, cost construction method was adopted to arrive at the assessable value. The department sought to assess the assessable value as per the Section 4A of the Central Excise Act, read with Section 4 of the Central Excise Valuation Rules, 2000 and a show-cause notice was issued and demands were confirmed. Aggrieved by the said order, the appellants are in appeal. From the above narrated facts, the issue before this Tribunal is that 'whether the goods (medicaments) manufactured by the appellants, which are in the nature of 'physician samples' should be assessed to Central Excise duty on the basis of value of comparable goods i.e. sale packs of medicines under Section 4A of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in 2007 (215) ELT 327 (SC), the Hon'ble apex Court has held that the physician samples are not liable to be assessed under Section 4A of the Act, as there is no requirement to print MRP on the physician samples as they are for free distribution. They also submitted that when the transaction value is available at factory gate, there is no need to take recourse to Section 4 (1) (b) of the Act, read with Valuation Rules. To support their contention that the assessable value should be as per Section 4 (1) (a) of the Act is proper, they relied upon on the decision of the Tribunal in the case of Mayer Health Care Pvt Ltd., Vs. CCE, Bangalore, reported in 2009 (247) ELT 488 (Tri-Bang) and CCE Vapi Vs. Sun Pharmaceuticals Industries Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale: Provided that - (i) where, in accordance with the normal practice of the wholesale trade in such goods, such goods are sold by the assessee at different prices to different classes of buyers (not being related persons) each such price shall, subject to the existence of the other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such class of buyers; [(ia) where the price at which such goods are ordinarily sold by the assessee is different for different places of removal, each su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. In this case, we find that the appellants have cleared their goods to the buyers, who are admitted not the related person, on a contractual price, the ingredients of Section 4 (1) (a) are complied by the appellants to arrive at assessable value is the transaction value. 13. As contended by the DR that as the physician samples are made free of sale and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In that case, this Tribunal has observed as under:- 'The point to be appreciated is if an item is sold by the manufacturer or cleared for a consideration, then duty is payable on the transaction value in terms of Section 4 of the Central Excise Act.' and finally this Tribunal has observed that the samples are not distributed by the appellants free but cleared on receipt of consideration. Hence, the Central Excise duty is payable on transaction value. 15. Reliance placed by the Ld. DR in the case of CCE, Daman Vs. Sun Pharmaceuticals Ltd., (supra) is not applicable to the facts of this case, as in that case the facts are not similar to the case in hand. In fact in that case, the delivery and distribution of physician sampl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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