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TMI Blog2017 (10) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, for arriving at the value of the goods cleared free as "Physician samples" and had accordingly discharged (lesser amount of) excise duty instead of correctly adopting the value as under Section 4 (1) (b) of Central Excise Act, 1944 read with Rule 4 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules 2000, during the said period. Accordingly, proceedings were initiated proposing recovery of differential duty for the periods 2002-03 (from 01.02.2003 to 31.03.2003), 2003-04 and 2004-05 and 2005-06 (01.04.05 to 30.04.05) which worked out to Rs. 85,91,184/- and Education Cess of Rs. 75,645/- with interest thereon and imposition of penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Three SCN's were issued rejecting the refund application filed by the appellants. Subsequently the department vide OIO R-010/2006 dated 27.01.2006 rejected the refund. The department was fully aware of the facts of the case as early as in 2006 and there was no whisper of any short payment made. (v) The Commissioner vide Para 22 had confirmed the demand for a period of 5 days from 25.04.2005 to 30.04.2005 on account of the Circular being in effect and the refund applications not covering that period which is bad in law. (vi) There is no clear finding to justify as to how the extended period of limitation has been invoked in the instant case in view of the fact that the department was fully aware of the fact as early as in 2006. 3. On be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the same clearances. In any case, there definitely had been considerable confusion in the method and manner of clearance of physician samples. Board's earlier circular dt. 01.01.2002 which advised adoption of residual Rule 11 along with spirit of Rule 8 of Valuation Rules was superseded by another circular dt. 25.04.2005 which advocated that in case of free samples, value had to be determined under Rule 4 of the Valuation Rules. Taking all these factors in mind, we are of the considered opinion that the impugned demand is hit by limitation. In the circumstances, the impugned demand is legally unsustainable. This being so, impugned order will require to be set aside in toto, which we hereby do. Appeal is allowed with consequential be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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