TMI Blog2016 (1) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... n the amount of duty which is confirmed by the lower authorities and upheld by to that extent, the appeal filed by the appellant is rejected. Appellants cleared the physician samples on payment of duty by ascertaining the assessable value under Section 4 of the Central Excise Act, 1944 and they filed monthly returns with the lower authorities for the relevant period in question. We find that the invocation of Rule 25 of the Central Excise Rule is incorrect as the said Rule mandate penalty can be imposed only if there is a violation of the provisions of Rule which is not the case in here as the discharge of duty on the physician samples on an assessable value proportionate to MRP of the park was in dispute and decided by the Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eared by the appellant falling under Chapter 30, for which provisions of Section 4A of the Central Excise Act, 1944 are made applicable from March 2005, hence assessable value has to be calculated in accordance with the said provisions. 5. The representative of the appellant submits that they are not disputing the duty liability and have already discharged the same. They are only disputing the interest and the penalty imposed by the adjudicating authority. It is his submission that entire issue of whether the value of the physician samples of the medicaments cleared needs to be worked out on proportionate basis of the MRP of the sale prices or otherwise, was in dispute and it was decided by the Hon'ble High Court on 28/09/2006. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessable value proportionate to MRP of the park was in dispute and decided by the Hon'ble High Court of Bombay in the case of Indian Drug Manufactures Association on 28/09/2006. If that be so, the appellants may have entertained a bonafide belief that the assessable value for discharging duty liability on the physician samples was correctly arrived at by them as per Section 4 of the Central Excise Act, 1944. 8. In view of these findings, we are of the view that penalty imposed on the appellant is unwarranted and liable to be set aside and we do so. 9. In sum, the confirmation of demand with interest is upheld and penalty imposed on the appellant is set aside. 10. The appeal is disposed of as indicated herein above. ( Op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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