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2019 (5) TMI 507

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..... uch pack sold in retail must have the MRP printed on it. From above it is apparent that the provisions are attracted only on goods ‘offered for retail sale’. In the impugned order, it is seen that the words ‘offered for retail sale’ appearing in DPCO 1995 have been overlooked. In the instant case the evidence brought on record does not dispute the claim that the goods sold to institutional buyers were not sold (or offered for sale) in retail sale - The provisions of para 14 and 15 of DPCO 1995 are not attracted in respect of sales to institutional buyers which are not further offered for retail sale. The demand, therefore, cannot be upheld - penalties set aside. Appeal allowed - decided in favor of appellant. - Excise Appeal No. E/779-781, 791/2011, E/655-657/2012 And E/14019-14021/2013-DB - A/10790-10799/2019 - Dated:- 6-5-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) Shri. Medhavin Baxi (Advocate) for Appellant Shri. Nitina Nagori (A.R.) for Respondent ORDER Per: RAJU These appeals have been filed by M/s Usv Ltd., Parvej K Kumana, Dilip A Pandit, Jayesh K Vasavada and one appeal filed by Revenue. 1.1 M/s USV Ltd. are en .....

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..... ase in respect of the clearances made to institutional buyers. He argued that in such circumstances Section 4A of the Central Excise Act, 1944 cannot be invoked for assessment of goods on MRP basis in respect of supplies made to institutional buyers. He pointed out that bulk packs and the containers clearly had a marking Hospital supply-not for sale . He pointed out that Commissioner has solely relied on the fact that the purchase order of the institutional buyers did not mention that the goods are not intended for resale or for the free distribution. The impugned order also relies on the fact that such orders of institutional buyers have been obtained through dealers/ distributors. 2.1 During investigation it was found that the primary packing of the supplies intended sale to institutional buyers contained marketing such as railway supplies , BHEL supplies etc. It was also found that the MRP was not printed in respect of supplies meant for institutional buyers. 2.2 Ld. Counsel further pointed out that they were not required to print the MRP on the supplies made to institutional buyers as the said supplies were not intended for retail sale. He pointed out that para 14(2) and 15(1) .....

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..... 1985 (5 of 1986) mentioned in the corresponding entry in column (2) of the said Table, as the goods to which the provisions of the said sub-section (2) shall apply, and allows as abatement the percentage of retail sale price mentioned in the corresponding entry in column (4) of the said Table :- TABLE S. No. Chapter or Heading No. or Sub-heading No. Description Abatement as a percentage of retail sale price (1) (2) (3) (4) 1. 3003. 10 Patent or proprietary medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Biochemic 35% 2. 3003. 20 Medicaments (other than patent or proprietary) other than those which are exclusively used in Ayurvedic, Unani, Siddha, Homoeopathic or Biochemic systems 35% This notification 2. shall come into force on the 8th day of January, 2005. Explanation. - For the purposes of this notification, retail sale price means the retail price displayed by the manufacturer under the provisions of the Drugs (Prices Control) Order, 1995. It is noted that for the purpose of this notification, the retail sale price means the retail sale price displayed the manufacturer under the provision of Drugs (Price Control) Order .....

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..... ther if the provisions of Rule 14 or 15 could be attracted. 4.1 It is seen that investigations were extended to various customers/ dealers and in para 9 of the impugned order the list of customers has been enumerated. The gist of the investigation is reproduced in para 10, 11, 12 and 13 of the impugned order. The investigations confirmed that no evidence of printing of MRP on institutional supplies made through dealers was found. In fact whatever evidence was produced showed that the products contained the marking hospital supply-not for sale only. 4.2 The impugned order has picked up the words formulation intend for sale appearing in para 14 and para 15 of the Drugs (Price Control) Order 1995 and come to the conclusion that it was mandatory in the facts and circumstances of the case to print the MRP. The arguments is summarized in para 4.3.4 of the impugned order in following words. 4.3.4 Now, deliberate on the said DPCO, 1995. I observe that as per its para no. 14(2), every manufacturer of distributor of a formulation intended for sale shall display in indelible print mark, on the label of the container of the formulation and the minimum pack there offered for retail sale , the r .....

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..... minimum pack thereof offered for retail sale . From above it is apparent that what is covered in DPCO is only the items which are sold in retail. If a container is sold in retail, the container must contain retail sale price and if the content of such container are also sold in retail then each such pack sold in retail must have the MRP printed on it. From above it is apparent that the provisions are attracted only on goods offered for retail sale . In the impugned order, it is seen that the words offered for retail sale appearing in DPCO 1995 have been overlooked. The said order only relies on the word sale and upholds the applicability of the DPCO 1995 to all sales. We find that the sale appearing in para 14 and 15 of DPCO 1995 is only to be read in respect of the goods offered for retail sale . In the instant case the evidence brought on record does not dispute the claim that the goods sold to institutional buyers were not sold (or offered for sale) in retail sale. In these circumstances, we hold that provisions of para 14 and 15 of DPCO 1995 are not attracted in respect of sales to institutional buyers which are not further offered for retail sale. The demand, therefore, canno .....

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