TMI Blog2017 (11) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... hat physician samples being final product not supplied for captive consumption under Rule 8 of Valuation Rules is not applicable and Rule 4 ibid only would be applicable to such goods - appeal dismissed. Physician samples manufactured and sold on P or P basis - demand of differential duty - Held that: - the controversy in this matter has been settled by the Tribunal decisions in Sidmak Laboratories India Ltd., reported in [2008 (9) TMI 360 - CESTAT, AHMEDABAD] where it was held that in such cases that valuation under Section 4 of CEA 1944 was justified - appeal allowed. Penalty - Held that: - there were clearly two views on the manner and method of valuation of physician samples supplied for free distribution - penalty set aside. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess of adjudication, original authority confirmed differential duty liability of ₹ 4,70,231/- with interest thereon and also imposed equal penalty under Rule 25 of CER read with Section 11AC of the act. In appeal, Commissioner (Appeals) vide the impugned order dated 22.12.2011 uphold the order of original authority. Hence, aggrieved appellants have filed this appeal. 3. On 07.09.2017, when the matter came up for hearing, on behalf of appellant Ld. Advocate Sh. Y. Sreenivasa Reddy made oral and written submissions which can be summarised as follows: (i) The duty liability in dispute in respect of the first issue (physician samples cleared for free distribution) is ₹ 3,14,406/- and in the second issue (physician samples so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by limitation, since the appellant had paid excise duty on these samples on cost construction method basing on the legal position prevailing during the relevant period. Further notice was issued simple basing on ER1s filed verified during audit, the appellant has declared the values of P or P medicines and their corresponding values. Therefore, suppression cannot be invoked. In identical case of Marsha Pvt ltd., Vs CCE, Vadodara [2009 (248) ELT 687 (Tri-Ahmd)] it was held that extended period not invokable. Also the assessee paid differential duty in respect of physician sample cleared for free distribution immediately on being pointed out and much before issue of show cause notice. Therefore, no notice should have been issued as stipula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the impugned order confirm tax liability in respect of such physician samples distributed free of cost will require to be sustained which we hereby do. Appeal of the appellant in respect of this issue will therefore not succeed and is rejected. 5.3 Coming to the demand of differential duty on physician samples manufactured and sold on P or P basis, appellant have adopted transaction value. However, lower authorities have not found favour with this method of assessment. We find that the controversy in this matter has been settled by the Tribunal decisions in Sidmak Laboratories India Ltd., reported in [2009 (242) 255 (Tri-Ahmd)] where it was held that in such cases that valuation under Section 4 of CEA 1944 was justified. The de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion) Rules. The law that the physicians samples needs to be valued proportionately with the sale pack was settled by the Larger Bench of the Tribunal in the case of Cadila Pharmaceuticals-2008-TIOL-1668-CESTAT-AHM-LB. = 2008 (232) E.L.T. 245 (Tri.-LB)]. It would mean that till that time, two views were possible. If two views were possible for the valuation of physician samples, appellant's choosing a particular view, cannot be faulted with. 9. Following the ratio, we hold that in the present case also imposition of penalty is not justified and hence the same is set aside. Appeal partly allowed on above terms. (Operative part of this order was pronounced in court on conclusion of the hearing) - - TaxTMI - TMITax - Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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