TMI Blog2015 (9) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. - Civil Appeal No(s). 465-466/2006 - - - Dated:- 31-7-2015 - MR. A.K. SIKRI MR. ROHINTON FALI NARIMAN, JJ. For the Petitioner : Mr. V. Lakshmikumaran, Adv., Mr. M.P. Devanath, Adv., Mr. Vivek Sharma, Adv., Ms. L.Charanaya, Adv., Mr. Aditya Bhattacharya, Adv., Mr. R.Ramachandran, Adv., Mr. Hemant Bajaj, Adv., Mr. Anandh K., Adv. For the Respondent : Ms. Pinky Anand, ASG., Mr. Ritesh Kumar, Adv., Mrs. Rashmi Malhotra, Adv., Mr. B. Krishna Prasad, Adv. ORDER The appellant herein is a Pharmaceutical Company which manufactures various kinds of medicines. Apart from selling the medicines in the market, some medicines are distributed to the physicians as samples for which the appellant is not charging any amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like this: Now, coming to the valuation of the physicians' samples for the purpose of levy of excise duty, in our view, this issue need not detain us long in view of the decision of this Court in CCE v. Bal Pharma Ltd. This Court has upheld the conclusion of the Tribunal that the physicians' samples have to be valued on pro rata basis. The Tribunal, while arriving at the aforesaid conclusion, had relied upon its earlier decision in CCE, Calicut v. Trinity Pharmaceuticals (P) Ltd. which has been accepted by the Department. Therefore, we hold that physicians samples have to be valued on pro rata basis for the relevant period. Mr. Lakshmikumaran, learned counsel pointed out that while arriving at the aforesaid conclusion, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper officer to arrive at the price at which the assessee would have sold such goods in the course of wholesale trade to a person other than a related person: Provided that in determining the amount of reduction, due regard shall be had to the nature of the excisable goods, the trade practice in that commodity and other relevant factors; (b) where the excisable goods are not sold by the assessee but are used or consumed by him or on his behalf in the production or manufacture of other articles, the value shall be based- (i) on the value of the comparable goods produced or manufactured by the assessee or by any other assessee: Provided that in determining the value under this sub-clause, the proper officer shall ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 6(b) deals with two methods: (1) In case these are comparable goods, the value of comparable goods produced or manufactured by the assessee, can be the basis and thus pro rata method can be applied; (2) In case aforesaid method can't be applied, then the second method can be resorted to viz. cost of production or manufacture including profits, if any, which the assessee would have normally earned on sale of goods. In these cases the physicians' samples which are given free of cost are clearly comparable with the goods that are manufactured by the assessee and sold in the market as the two goods are identical. In fact out of the same lot manufactured some are distributed as samples. Therefore, even while exercising his po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the assessee thereby holding that the demand from the period from April 1998 to till November 1999 was time barred. Thus, the only period for which the duty is payable under the aforesaid show cause notice is from December 1999 to March 2000. Other appeal No.3657/2004 before CESTAT covered the following period in three show cause notices as under: 1. April 2000 to March 2001; 2. April 2001 to November 2001; 3. December 2001 to November 2002 In these cases also, rectification application was filed by the assessee on the ground that CESTAT overlooked the fact that part of the demand is for the period after 1.7.2000. This plea of the assessee has been accepted by the CESTAT vide its order dated 4.1.2006 thereby allowi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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