TMI Blog2019 (8) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... adoption of either does not detract from being transaction value. It would also appear that the clarification issued by Central Board of Excise Customs, in circular no. 813/10/2005-CX dated 25th April 2005 has been misconstrued by the central excise authorities inasmuch as it pertains to the clearance of physician samples by the manufacturers themselves. In Commissioner of Central Excise Customs, Surat v. Sun Pharmaceuticals Industries Ltd [2015 (326) ELT3 (SC)], the Hon ble Supreme Court approved the decision of the Tribunal that as long as physician samples are sold and the characteristics for the transaction conform to the enumeration in section 4(1)(a) of Central Excise Act, 1944, acceptance of the invoice price is not flawe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act, 1944. Hence the plea for restoration of the order of the original authority. Learned Authorised Representative contends that, consequent upon amendment upon the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, circular no. 643/34/2002-CX dated 1st July 2002 had directed that computation of samples for free distribution be assessed at 115% of cost of manufacture. Following that, the Central Excise Board of Excise Customs, in circular no. 813/10/2005-CX dated 25th April 2005, directed that free samples should be valued under rule 4 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. Consequently, he contends that, under rule 4 of the said Rules, the nearest asc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld suffice for the purpose of adoption of transaction value. He relies upon the decision of the Tribunal in Themis Laboratories Pvt Ltd v. Commissioner of Central Excise, Mumbai [2012 (286) ELT 244 (Tri.-Mumbai)]. 4. The issue of valuation of physician samples is one that has been dogging the industry for long. There is no doubt that, prima facie, physician samples are not covered by the prescription in section 4A of Central Excise Act, 1944 and, therefore, subject to the default scheme envisaged under section 4 of Central Excise Act, 1944. The appellant has been discharging duty liability on the transaction value at which goods are cleared to M/s Novartis India Ltd on principal-to-principal basis. Such transaction valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has not rebutted the same. Even ld. Advocate is claiming that they are declaring value as per CAS-4. CAS-4 valuation scheme is applicable for goods meant for captive consumption, which is not the case here. Thus the transaction between appellant and principal manufacturer cannot be considered as on principal to principal basis. Under the peculiar circumstances, the only way left is to assess the value based upon M.R.P. of similar goods after giving abatement as prescribed and on proportionate basis. This is what has been ordered by Commissioner (Appeals)., arose from the statement of the authorised signatory of the appellant therein to the effect that the assessable value had been forced upon them by the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es despatched were accompanied by delivery challans in the name of individual medical representatives and on receipt were distributed by M/s. Aditya Medisales Ltd. to those medical representatives in quantity referred to in the delivery challans. Later on this practice was changed and the samples were sent in consignments which were accompanied by delivery challan for a consignment. The appellant s advocate was specifically asked about the existence of any written agreement between them and M/s. Aditya Medisales Ltd. to which he replied in negative. It is difficult for me to understand how the physician samples in such a large quantity can be supplied to M/s. Aditya Medisales Ltd. with an obligation of distributing the same by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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