TMI Blog2016 (4) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... production but revenue demanded duty at the value to be determined under rule 4 of the CER Valuation Rules - Applicant manufacturing physician samples for itself and selling the same to Cosmae Farma Laboratories - Held that:- the goods are not being distributed free of cost. By following the decision of Hon'ble Supreme Court in the case of CCE vs. Sun Pharmaceuticals Industries Ltd. [2015 (12) TMI 670 - SUPREME COURT] which squarely covers the present case, since there is a transaction value available at which the goods are sold by the assessee to the distributors, and the same has not been challenged, the same should be assessable value under Section 4(1)(a) of the Central Excise Act. - Decided against the revenue - Appeal No. E/1479 & 1514/07 - A/86426-86427/16/EB - Dated:- 10-3-2016 - S. S. Garg, Member (J) And Raju, Member (T) For the Appellant : Shri N N Prabhudesai, Supdt (AR) For the Respondent : Shri MP Baxi, Adv ORDER Per Raju 1. The Cosme Remedies Ltd. (CRL) are manufacturers of medicaments. The CRL manufactures the medicaments along with the physician's samples which are not meant for sale. The CRL are not only manufacturing the products for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bombay High Court in Writ Petition No. 246/06, she particularly relied on the following observations of the Hon'ble High Court of Bombay: Assuming that the petitioner are right in contending that the valuation of the physicians samples cannot be determined under any of the specific rules, even then, as per Rule 11 the value of physician samples has to be determined by using reasonable means consistent with the principles and the general provisions of 2000 Rules and Section 4(1) of the Act. As stated earlier, Rule 4 is the only general rule and therefore, it is just and proper to hold that the valuation of physician samples be determined under Rule 11 read with Rule 4 and such a valuation would be reasonable and consistent with the principles and the general provisions of the Rules and the Act. The contention that the physician samples must be valued under Rule 11 read with Rule 8 cannot be accepted because Rule 8 applies to cases where the goods are not sold but are captively consumed whereas, goods similar to physician samples are in fact sold in the open market and in fact physicians samples are not cleared for captive consumption. Hence, the valuation of physician sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof, the Central excise Rules would not apply in the instant case. 11. As a result, we are of the opinion that the decision dated 10-11-2006 rendered by the CESTAT depicts the correct position of law and rightly holds that the case would be covered by the provisions of Section 4(1)(a) of the Act and in view thereof Rule 6(b)(ii) of the Rules would not apply. Resultantly, Civil Appeal Nos. 3742-3744 of 2007 of the Revenue fail and are hereby dismissed. C.A. No. 6984/2009; C.A. No. 9876-9878/2011; C.A. No. 1990-1992/2012; C.A. No. 3338/2012; C.A. No. 268-269/2015; C.A. No. 6571-6575/2015; C.A. No. 3387-3389/2005; C.A. No. 2431-2432/2008 The learned Counsel also asserted that vide the said decision, the Hon'ble Supreme Court had also disposed of appeals filed against the following decision of the Tribunal: a) Omin Protech Drugs Pvt. Ltd. CA No. 3338/2012 b) Softsule Pvt. Ltd. CA No. 1990-1992/2012 c) Mayer Health Care Pvt. Ltd. CA No. 6984/2009 d) Themis Laboratries Pvt. Ltd. CA No. 9876/2011 He argued that all the appeals of the revenue against the aforesaid order of the tribunal have been dismissed and consequently the aforesaid orders of the Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t being distributed by manufacturer free of costs. 6.3 The decisions cited by the AR are examined as follows. The decision of Hon'ble Supreme Court in the case of Medley Phramaceuticals Ltd. - 2011 (263) ELT 641 (SC) is solely based on the earlier decision of the Hon'ble Supreme Court in the case of M/s. Bal Pharma [2010 (259) E.L.T. 10 (S.C.)]. In the case of Bal Pharma the Hon'ble Court has reached the verdict on the following grounds. It is evident from the impugned order passed by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai (for short, the Tribunal ) in Appeal No. E/357/02 that while holding that samples have to be valued on pro rata basis, the Tribunal has relied on its earlier decision in the case of Sun Pharmaceuticals Industries Ors. vs. CCE, Surat, reported as 2005 (123) ELT, 390 (Tri-Mum.). Admittedly, the said decision of the Tribunal has not been challenged by the Revenue and as such, has attained finality. In that view of the matter, we decline to entertain the appeal. The same is dismissed accordingly. In the said case no Ratio has been laid out. 6.4 In the decision in the case of Glenmark Pharmaceuticals Ltd. - 2015-TIOL-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt back to the principal manufacturer. In the case of Omni Protech Drugs Pvt. Ltd. - 2011 (274) ELT 377 (Tri-Mum), the appellant was a job worker and was clearing the physician samples to the brand owner on payment of duty on the assessable value arrived at as per formula laid down by the Hon'ble Apex Court in the case of Ujagar Prints - 1989 (39) ELT 493 (SC) on the transaction value of the physician samples cleared by them. In the said case, the Tribunal observed as under: 6. The issue in this matter before us is that whether the physician samples cleared by the appellants to the brand owner on payment of duty on the transaction value arrived at as per the formula laid down by the Hon'ble apex Court in the case of Ujagar Prints (supra) i.e. cost of raw materials + conversion charges or the physician samples manufactured on job work basis are to be cleared as per Section 4A of the Act i.e less abatement on pro rata basis. The case law cited by the learned SDR are not relevant to the facts of the case as in those cases the manufacturers themselves manufacturing the physician samples and distributing the same to Physician / Doctors free of cost, therefore no transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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