TMI Blog2019 (10) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... n filed by M/s Zydus Healthcare Ltd., earlier known as Biochem Pharmaceuticals Industries Ltd. In this order, we are also dealing with appeal filed by Revenue against M/s Zydus Healthcare Ltd. 2. Ld. Counsel for the appellant pointed out that the order impugned in their appeal relates to confirmation of two demands for the period Jan 2005- July 2012. He argued that they are engaged in manufacture of pharmaceutical products and most of their clearances are assessed under section 4A of the Central Excise Act, 1944, since these products are cleared with the intention of being offered for retail sale. He further pointed out that the appellants are also clearing goods to various institutional buyers like Railways, SAIL, Andhra Pradesh Transportation Corporation, etc. He pointed out that these clearances to such institutional buyers are intended for consumption in their hospitals and are not intended for retail sale. He pointed out that earlier the matter had reached Tribunal and Tribunal vide order no. A/10920-10926/2017 dated 09/05/2017 remanded the matter back to original adjudicating authority with following observation: 8. We find that the crux of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers in their own hospitals and not intended for retail sale are not liable to be assessed under section 4A of the Central Excise Act, 1944. 3. Ld. AR relies on the impugned order. 4. We have carefully considered the rival submission. We find that the issue involved in this case relates to the applicability of assessment under section 4A to supplies of pharmaceuticals made for institutional buyers who are running hospitals and where the pharmaceuticals are intended for consumption in the hospitals and not for retail sale. Ld. Counsel has produced some certificates for various institutional buyers which confirm this fact. Revenue has not produced any evidence that the said goods are sold by the institutional buyers and similarly no evidence has been produced to assert that the said pharmaceuticals are not consumed in the hospitals by these institutional buyers themselves. In the case of USV ltd., following has been observed: 4. We have gone through rival submissions. We find that these products were brought into the fold of section 4A assessment by notification No. 2/2005-CE(NT) dated 07.01.2005 which reads as under: Medicaments -Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Government in this behalf, with the words 'retail price not to exceed' preceding it, and local taxes extra succeeding it, in the case of Scheduled formulations. Provided that in the case of a container consisting of smaller saleable packs, the retail price of such smaller pack shall also be displayed on the label of each smaller pack and such price shall not be more than the pro-rata retail price of the main pack rounded off to the nearest paisa.15. Display of prices of non-Scheduled formulations and price list thereof: 1. Every manufacturer, importer or distributor of a non-Scheduled formulation intended for sale shall display in indelible print mark, on the label of container of the formulation and the minimum pack thereof offered for retail sale, the retail price of that formulation with the words retail price not to exceed preceding it local taxes extra succeeding it, and the words Not under Price Control on a green strip: Provided that in the case of a container consisting of smaller saleable packs, the retail price of such smaller pack shall also be displayed on the label of each smaller pack and such price shall not be more than the pro-rata retail p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ‟ succeeding it.4.3.4.1After the detailed analysis of the said para no.s 14(2) and 15(1) of the said DPCO, 1995, the following facts are extracted there-from;4.3.4.1.1.Who is required to adopt it? : Every manufacturer or importer or distributor of a scheduled or non-scheduled formulation.4.3.4.1.2.When are the said formulations intended for sale?4.3.4.1.3 What action is required to be taken? : shall display in indelible print mark;4.3.4.1.4.On which shall such action be taken? : (i) On the label of a container of the formulation (ii) On the minimum pack thereof offered for retail sale.4.3.4.1.5.What will be displayed thereon? : (i) retail price not to exceed‟ local taxes extra applicable for scheduled formations (ii) maximum retail price‟ (MRP) inclusive of all taxes in respect of non-scheduledformulations.4.3.4.2.As discussed at para 4.3.4.1.1-4.3.4.1.5hereinabove I come to the conclusion that as and when a manufacturer or distributor or importer of scheduled or non-scheduled formulations intends to sell the said formulations, he shall display, in indelible print mark, on the label of the container of the formation as well as on the minimum pack thereof o ..... 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