TMI Blog2019 (3) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... ples sold by the appellant to the principals, the assessable value as ascertained by the assessee and the duty liability discharged is correct and there is no reason for recalculating the assessable value based upon the value arrived at on pro rata basis of sales pack. Once the samples are sold and there is a transaction value, the price at which they are sold forms the assessable value and the assessment has to be done. Therefore, no differential duty can be charged, holding that Section 4A should be applied even in cases where the appellant has sold the physician samples. On the factual position whether the physician samples were actually sold or otherwise, the matter needs to be verified by the adjudicating authority after giving the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... market the products and expand their own market. Therefore, they have an arrangement according to which they manufacture physician samples clearly marked as physician samples but these samples are sold by them to their distributors who, in turn, supply them free of cost to the doctors. They have discharged service tax on these physician samples as per the transaction value. There is no retail price on these samples because these samples cannot be sold. However, there is a price on which they have sold these samples to their dealers which is the transaction value on which they paid the Central Excise Duty. 3. It is the case of the Department that physician samples should be charged to Central Excise Duty as per the price of corresponding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules and therefore their contention that they were selling physician samples is a complete mis-representation of the facts. 5. He relied upon the Larger Bench decision of the Tribunal in the case of Cadila Pharmaceuticals Limited vs. CCE, Ahmedabad-II [2008(232) ELT 245 (Tri.-LB)] and held that physician s samples have to be valued as per Section 4A of Central Excise Act, 1944. 6. We have considered the arguments on both sides and perused the records. The question to be answered is how physician s samples should be valued when the free samples are sold by the appellant to their distributors and for which there is an invoice value. It is the case of the department that physician samples cannot be sold and the assertion that they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the goods from their factory premises has not been rejected. It is also not in dispute that the appellant has been discharging the duty liability on the said physician samples as per the invoices raised from his factory and cleared to the principal manufacturer who in turn distributes the very same to the medical profession. On this back ground, we find that the judgment of this Bench in the case of Sidmak Laboratories (India) Ltd. is squarely on the point. The issue involved in that case was the first appellate authority has held that the samples cleared from the factory premises of the assessee therein were not being cleared for free distribution but are being sold at factory gate and the whole sale price is available at the factory gat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue is covered against the assessee by the Larger Bench decision of this Tribunal in the case of Cadila Pharmaceuticals Ltd. (supra). 8. The circular issued by the Board relied upon by the Department as well as the Case laws on Indian Drug Manufacturers Association and others shows that physician samples were not sold but were supplied free of cost and hence there was no transaction value. The present case is similar to the case of Parnax Lab Pvt. Ltd. (supra) in which there is a transaction value because the physician samples were sold by the manufacturer to the Distributor who in turn supplied them at free of cost to the Doctors. We have also considered the findings of the first appellate authority that selling physician samples is v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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