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TMI Blog2016 (12) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... f medicines and hence, are taken up together for disposal. Two of the appeals were by appellant - assessee and remaining three are by Revenue. The appeals by assessee -appellant is against order dated 16.03.2009 of Commissioner of Central Excise, Indore. Out of this, the main appeal is by the manufacturing assessee and the second appeal is by the Manager against imposition of penalty. The period covered in this appeal is 2005-06 to 2006-07. For the subsequent periods from April 2007 to March 2008 the demands against assessee were dropped by the first appellate authority in three different orders. Aggrieved by this, the Revenue filed three appeals. 2. The brief facts of the case are that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be discharged accordingly. 4. Ld. Counsel for the assessee - appellant submitted that the department itself have started accepting the assessment of value of physician samples as determined by the appellant - assessee for the later periods. When there is a transaction value between two unrelated parties where the price is the sole consideration, the excisable goods are to be taxed on such value only. Ld. Counsel relied on various decisions of the Tribunal to support his view. He specifically drew our attention to the decision of the Tribunal in Gelnova Laboratories (I) Pvt. Ltd. vs. CCE, Belapur - 2014 (300) ELT 437 (Tri. Mum) which has been accepted by the department and the decision of Hon'ble Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see should be made under Rule 4 of Central Excise Valuation Rules, 2000. Ld. AR submitted that reliance placed by the original authority on the Larger Bench decisions in Blue Cross Laboratories and Cadila Pharmaceuticals (supra) is correct. Further, the ld. AR relied on the decision of Bombay High Court in Indian Drugs Manufacturer's Association vs. Union of India - 2008 (222) ELT 22 (Bom.). It was argued that the Hon'ble High Court categorically held that Rule 4 is a general rule and in a situation where clearance of physician free samples not by way of sale the said rule will apply. 7. We have heard both the sides and perused the appeal records including written submissions and various decisions relied upon by bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4A will come into play when the physician samples are also covered under the said category for MRP based assessment. The Hon'ble Supreme Court in Jayanti Food Processing (P) Ltd. vs. CCE, Rajasthan - 2007 (215) ELT 327 (SC), held that merely because the goods are notified under Section 4A by itself does not mean that all goods so notified shall always be valued as per the provisions contained in the said section. The requirement that the packing of the goods shall contain MRP under the Standards of Weights and Measurement Act must be fulfilled in order to assess any goods under Section 4A. Since physician samples are not sold in retail and MRP is not fixed on the same and when the samples were sold by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 4(1)(a). In the present case, as noted already there is, admittedly, a transaction value. 11. Regarding goods manufactured on loan licence basis where raw material and packing material were given by the principal brand owner, the appellant -assessee followed cost construction method to value the physician samples cleared by them to the principal manufacturer. The Hon'ble Supreme Court in the case of Biochem Pharmaceuticals (supra) held that the provisions of Rule 3 to 5 of the Valuation Rules, 1975 are not applicable. We note that Rule 4 of 1975 Rules and Rule 4 of 2000 Rules are identical. Further, the Hon'ble Supreme Court also referred to the CESTAT decision which accepted valuation to be on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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