TMI Blog2016 (7) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... rely because the appellant have roped in an intermediary agency in between. The appellant were required to discharge the duty liability at the contracted price in respect of the goods supplied by them to the Government hospitals, either directly or through M/s Anupam. Demand of duty confirmed - Decided against the assessee. - Excise Appeal No. 189 of 2008- Ex. DB & Excise Appeal No. 158 & 159 of 2008- Ex. DB. - Final Order Nos. 52198 52200/ 2016 - Dated:- 28-6-2016 - MS. ARCHANA WADHWA, MEMBER (JUDICIAL) AND MR. B. RAVICHANDRAN, MEMBER (TECHNICAL) (Sh. Sanjay Jain, DR for the Revenue) (Sh. Tushar Jarwal, Ms. Charu Tripathi Sh. M.S. Gulati, Advocates for the respondent) ORDER PER: ARCHANA WADHWA: All the three appeals one by the assessee and other two by the Revenue are being disposed of by a common order as they arise of the same impugned order of the lower authority. First of all, we proceed to decide the assessee s appeal. 2. As per facts on record M/s Bright Drugs Industries Limited (hereinafter referred to as M/s BDIL) are engaged in the manufacture of various pharmaceutical products and P P medicaments falling under chapter 30 of the Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice stands adjudicated by the original adjudicating authority and upheld by Commissioner (Appeals). Hence the present appeal. 6. After hearing both the sides duly represented by Sh. Tushar Jarwal, Ld. Advocate for the appellant and Sh. Sanjay Jain, Ld. DR for the Respondent we find that the factual position is not in dispute. The said appellant M/s BDIL were manufacturer of medicament and had entered into purchase order / rate contract with the State of Maharashtra for supply of medicines to various hospitals/ Government institutions. The goods required to be supplied under the said contract were to be marked clearly as for Government supplies only, nor for sale on each package of the consignment. Instead of supplying the said medicines to the Government hospitals directly and raising invoices in their name, the appellant adopted a modus-operandi to first sell the medicament to M/s Anupam who further raised the invoices on various hospitals. 7. It is seen that the said manufacturer had taken a stand that the sale by them to M/s Anupam was an independent sale inasmuch as M/s Anupam was their distributor and was buying and selling the products of other pharmaceutical compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of goods to the Government agencies. In a common parlance, a distributor is a person, who is free to sell the procured goods in the market at a price to any person. In the present case the goods purchased by M/s Anupam from the manufacturer cannot be sold to any person other than the Government agencies. Such goods are a part of the contract entered into between the manufacturer and the Government agencies. Accordingly for the appellant, M/s Anupam has been roped in by them so as they can make efforts to recover the consideration from the Government authorities. This fact clearly shows that M/s Anupam are nothing but is facilitating agency or a recovery agency. Taking a hypothetical situation that where the services of the agency is required for recovery of the consideration of the medicines supplied to the Government hospitals, whether payments made to the recovery agent for such services would get deduction from the total assessable value of the medicines supplied directly by M/s BDIL. The answer would lie in an emphatical NO . M/s BDIL are also supplying medicines directly to Government hospital at the contracted price in which case the assessable value is admittedly the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the manufacturer to sell a part of their goods covered under the same contract, where they were also supplying the goods directly, with intention to evade payment of duty, the malafide is writ large on the face. Merely because they were filing the returns and the invoices issued in the name of M/s Anupam, does not ipso facto lead to the disclosure of the marketing pattern adopted by the said M/s BDIL. It is only as a result of detailed investigation and scrutiny of the records which resulted in emergence of the real picture. As such, we find no reason to deny the Revenue the invocation of the extended period. 11. As regards the Revenue s appeal, it is seen that apart from the above allegation, the show cause notice also proposed to confirm a particular amount of duty, in terms of the provision of Section 11D of the Central Excise Act on the ground that they have collected such amount from the Government agencies representing the same as duty of excise but has not deposited the same with the Revenue. The assessee took the stand before the adjudicating authority that the excise rate was enhanced, which was paid by them at the time of clearance of the goods and it is only e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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