TMI Blog2011 (6) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... to principal basis and in case of jobwork these physician samples have been cleared on cost construction method i.e. CAS-4, transaction value/CAS 4 value are the correct value arrived at by the appellants, requirement of pre-deposit of duty, interest waived, Stay applications are allowed - E/633-635/2009-Mum - S/423-425/2011-WZB/C-II(EB), - Dated:- 14-6-2011 - S/Shri Rakesh Kumar, Ashok Jindal, JJ. Ms. Charanya Lakshmikumaran, Advocate, for the Appellant. Shri Kishori Lal, SDR, for the Respondent. [Order per : Ashok Jindal, Member (J)]. The appellants are in appeal against the impugned order confirming the demand of duty on the ground of under valuation of their product namely physician samples. Stay applications filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Act, 1944 on transaction value as per the contract agreement between them and the brand owners and in case of job work, they are discharging duty as per CAS 4. During the course of audit, it was observed by the department that the appellants are not discharging duty as per Section 4A i.e. on the basis of M.R.P. of the product less applicable abatement on the physician samples. Therefore, periodical show-cause notices issued to the appellants and allegation was made that the appellants have under-valued the physician samples which they have cleared on the basis of transaction value/CAS 4 which is not the correct value as the appellants are required to discharge duty liability as per Section 4A of the Central Excise Act, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 4A of the Act are not applicable to them. She further submitted that the decision in the case of Indian Drugs Manufacturer s Association v. Union of India - 2008 (222) E.L.T. 22 (Bom.), Cadila Pharmaceuticals Ltd. v. Commissioner of Central Excise, Ahmedabad-II - 2008 (232) E.L.T. 245 (Tri. - Larger Bench) and Medley Pharmaceuticals Ltd. v. CCE Cus., Daman - 2011 (263) E.L.T. 641 (S.C.) are not applicable to the facts of their case. In fact in all the above mentioned cases, the facts are that the physician samples are cleared by the manufacturer themselves to Physician/Doctors through free distribution and in those cases the transaction value was not available at the time of clearance of this physician samples. Therefore, the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing stay in the appellants own case for the earlier period the decision of Indian Drugs Manufacturer s Association (supra) and the Hon ble Supreme Court s decision in the case of Medley Pharmaceuticals Ltd. (supra) were not available before the Tribunal. Therefore, the said order of stay is of no relevance. He further submitted that the issue is no more res integra regarding the value of physician sample, therefore the appeal itself is to be rejected at this stage. Therefore, the appeal filed by the appellants deserve no merit and the appellants be directed to pre-deposit 100% of duty, interest and penalty. 6. On careful examination of the submissions made by both the sides, we have to examine the facts in all the cases and thereafter to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise duty for which assessable value was arrived at as per provisions of Section 4A of the Central Excise Act, 1944 i.e. based on MRP after availing the described abatement in terms of Notification No. 02/2005-C.E. (N.T.), dated 7-1-2005. It was also noticed that the assessable value of physician samples was lower than the assessable value of the same medicaments cleared in trade packs. In that case the appellants were not clearing physician samples for free distribution to the Doctors but are selling to other companies at an agreed price as per the purchase order placed on them. Therefore, the price mentioned in the purchase order is sole consideration for sale and the transactions are on principal to principal basis, their custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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