TMI Blog2016 (11) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... mples to brand owners on a principal basis, the transaction value merits acceptance. In respect of clearances as a job worker, valuation needs to be done on the basis of CAS4 certification - Appeal is disposed of by way of remand. - E/805/2007-DB - Final Order No. 21012 / 2016 - Dated:- 25-10-2016 - Shri S. S. Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Smt. Ezhilmathi, AR For the Appellant Shri D. Aravind, CA, Mr. Mohammed Yousuf, AR For the Respondent ORDER Per V. Padmanabhan The present appeal is filed by Revenue against the order dated 30.7.2007 passed by the Commissioner (A), Bangalore. The respondent-assessee is a manufacturer of pharmaceutical products chargeable to duty of excise with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .(i) above. In respect of clearances under Sl. No.(ii) (iii), the original authority s order is to the effect that duty needs to be paid in terms of CBEC Circular No.813/10/2005-CX dated 25.4.2005 in which it has been clarified that in the case of free samples, the value should be determined under Rule 4 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. In effect, this would mean that the value to be adopted for physician samples should be arrived at on proportionate basis on the basis of the value of trade packs of the same medicine. She further relied upon the decision of the Hon ble Bombay High Court in the case of Indian Drugs Manufacturer s Association: 2008 (222) E.L.T. 22 (Bom.) in which such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sold to the brand owner are to be assessed at transaction value in line with the decision of the apex court in the case of Sun Pharmaceuticals Industries Ltd.: 2015 (326) E.L.T. 3 (S.C.). The issue is also settled in their favour in the cases of Softesule Pvt. Ltd.: 2011 (271) E.L.T. 445 (Tri.-Mumbai) and Mayer Health Care Pvt. Ltd.: 2009 (247) E.L.T. 488 (Tri.-Bang.). 6. The duty demand in the present case to the extent of ₹ 28,31,993/- has been raised (i) on sale of physician samples to brand name owners; (ii) on clearances of physician samples on their own account and also as a job worker on loan licensee basis. Revenue is not pressing the appeal in respect of clearances made on a price contracted for sale as a loan licensee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, the assessee had put up the defence that since physician samples were not meant for sale by distributors but were to be given free of cost to the physicians, the assessee had charged lesser price. This statement of the assessee had not been doubted. The only reason in the show cause notice given was that since the physician samples were given free of cost by the distributors and no price was charged, the case was not covered by the provisions of Section 4(1)(a) of the Act. This is clearly fallacious and wrong reason. The transaction in question was between the assessee and the distributors. Between them, admittedly, price was charged by the assessee from the distributors. What ultimately distributors did with these goods is extraneous a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distribute them free to the physicians. Inasmuch as the respondent who cleared the samples did not distribute them free but cleared on receipt of consideration, the clarification of CBEC Circular dated 25.4.2005 will not be applicable. Such view has been held by the Tribunal in the cases of Softesule Pvt. Ltd. (supra) and Mayer Health Care Pvt. Ltd. (supra) which were cited by the learned CA. 6.1 The respondent manufacturers physician samples on job work basis. They receive job charges and there is no transaction value. In such circumstances, we are of the view that the valuation needs to be done on the basis of the principle laid down in the Ujagar Prints case: 1989 (39) E.L.T. 493 (S.C.) i.e., the value needs to be arrived at on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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