TMI Blog2014 (2) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... al has been taking a view that physician samples manufactured on principal to principal basis are required to be assessed under Section 4(1)(a) of the Central Excise Act - Decided in favour of assessee. - E/1894/12, E/763/09, E/1047/10 & E/86202/13 - Final Order Nos. A/948-951/2013-WZB/C-II(EB) - Dated:- 28-10-2013 - S S Kang And P K Jain, JJ. For the Appellant : Shri Vipin Jain, Adv. For the Respondent : Shri Navneet, Addl. Commissioner, AR PER : P K Jain Common issue is involved in the 4 appeals and are therefore being taken up together. Appellants were issued 6 show cause notices covering different periods. The first show-cause notices dated 16th July, 2008 is covering the period from January, 2005 to January, 2008, 2 nd show-cause notice dated 23.01.2009 is covering the period from February, 2008 to July, 2008, the 3 rd show-cause notice dated 18.11.2009 is covering the period from November, 2008 to August, 2009, 4th show-cause notice dated 22.09.2010 is covering the period from September, 2009 to July, 2010, the 5th show-cause notice dated 30.8.2011 is covering the period from August, 2010 to July, 2011 and last show-cause notice dated 03.09.2012 is coverin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n principal to principal basis where the customers, after placing the purchase orders, have no control of any nature over the manufacture of medicaments. The appellant's unit came into existence in the year 2002 and even since then they have been clearing their medicaments as well as physician samples on the basis of the transaction value, i.e. the price at which the medicaments, including physician samples, are sold by them to their customers. This practice has never been disputed by the department. It was in January 2005 that the medicaments sold in retail packs were brought under MRP based assessment under Section 4A, wherein the duty was required to be paid on the basis of MRP printed on the packs, after deducting the admissible abatement. The appellant started to pay duty on sale packs on the basis of MRP minus abatement and the same is not under dispute. The physician samples were, however, cleared on payment of duty on the transaction value in view of the fact that these samples are not meant for sale in the retail market and therefore there was no requirement of printing the MRP on the packs under the Standards of Weights and Measures Act, 1976. 3.2 Ld. Counsel for the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same system of valuation for paying the duty, Department has no objection. The unit was visited by the Audit in the month of December, 2006 and the said objection was raised. The show-cause notice was issued much later, under the circumstances there is no justification of invoking the extended period of limitation. Appellant had bonafide belief and department was aware of all details and therefore there is no suppression of facts. 4.1 The Ld. A.R. on the other hand, opposed the contention of the appellant and argued that Larger Bench of the tribunal in the case of Cadila Pharmaceuticals Ltd. vs. Commissioner of Central Excise, Ahmedabad II has clearly held that once an item is covered under Section 4A of the Central Excise Act, there is no question of assessing that item under Secitn4 of the Central Excise Act. Ld. A.R. further argued that the Section 4A has non-obstante clause and therefore the goods covered the Section 4A are required to be assessed under Section 4A alone and not under Section 4. For this purpose he drew attention to Section 4A, which reads as: Section 4A . Valuation of excisable goods with reference to retail sale price. (1) The Central Government m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that Tribunal's decision in the case of Commissioner of Central Excise, Mumbai Vs. Godrej Industries Ltd. reported in 2006 (200) ELT 348 (Tri-Mumbai) wherein this Tribunal has held that goods supplied free of cost with other item sold MRP based valuation would be applicable incase of goods notified under Section 4A of the Central Excise Act, 1944 and printed with MRP irrespective of the fact that they are meant for free distribution. Ld. A.R. argued that a harmonious reading of Hon'ble Supreme Court's decision in the case of Medley Pharmaceuticals ltd. (supra) and Larger Bench of this Tribunal's decision in the case of Cadila Pharmaceuticals Ltd.(supra) clearly brings out what is being done by the department. 5. We have considered the submissions of both sides. There is no dispute that P.P. Medicament are covered by Section 4A of the Central Excise Act, 1944. There goods have been notified under Section 4A (1) vide Notification NO. 2/2005-CE (N.T) dated 07.01.2005, which reads as under:- Medicaments - Assessments on basis of retail sale price (MRP) In exercise of the powers conferred by sub-section (1) and sub-section (2) of 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
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