TMI Blog2008 (4) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... r (T) Shri D.S. Negi, SDR, for the Appellant. None, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. - Being aggrieved with the order passed by the Commissioner (Appeals), Revenue, has filed the present appeal. We have heard Shri D.S. Negi, learned SDR and have gone through the impugned order. Nobody appeared on behalf of the respondent. 2. As per facts on record, the respondents are engaged in the manufacture of medicines. The dispute in the present appeal relates to the exemption notification No. 171/70-C.E. dated 27-11-70, which grants exemption to samples drawn for the purposes of test in a laboratory, purposes of quality control in the premises of the factory of manufacturer or any other premises approved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot considered and there is no rebuttal by the adjudicating authority to the above claim of the appellant. We also find that various case laws relied upon by the assessee, wherein under identical circumstances, Tribunal has held that control samples of product meant for retention in the factory and not for sale, cannot be held liable to pay duty even if they are not packed in any form different and distinct from trade packing, as contemplated in Sr. No. 24 of the Notification No. 171/70-C.E. Reference here is made to the Tribunal's decision in case of Bezel Pharma - 1998 (103) E.L.T. 449 (Tri.) and in case of Bayer Diagnostics India Ltd. - 2001 (133) E.L.T. 140 (Tri.-Mumbai). However, on appeal, the Commissioner (Appeals), set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y alleged that samples were not in pack different from trade pack without establishing as to how the samples were same as that of trade pack. The only similarity noted by him is that of similarity in quality, ingredients and effect which is not relevant for the purpose of exemption under said notification. Even otherwise, the A.C. has failed to appreciate that samples are to be representative of the trade pack in so far as ingredients, qualities, effect etc. are concerned otherwise they are not samples. Even if, for argument sake, it is held that samples were not packed in a form distinctly different from regular trade packing, appellants are still eligible for exemption under said notification in as much as admittedly, laboratory where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2002 (140) E.L.T. A252 (S.C.). On going through the detailed order of the Tribunal, we find that it is not clear as to whether the samples in that case, were being drawn for testing in the factory premises or the same were being cleared outside the factory either for test or for use by the drug authorities, in which case, the same are admittedly required to be packed differently and marked as "samples not to be sold", so as to prevent their mis-use. In the present case, apart from the assessee's contending the samples were differently packed and distinctly marked, to which there is no rebuttal by the authority, we note that the samples were tested in the factory premises only and were not being cleared outside the factory gate, in which c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
