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TMI Blog2023 (9) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... sicians as samples (for which no MRP was affixed). During the period from March 2009 to June 2010 for the regular clearances they had adopted valuation under Section 4A of Central Excise Act, 1944, and for the products cleared as physician samples, the appellant adopted the transaction value as under Section 4 of Central Excise Act, 1944 for payment of excise duty. The department was of the view that the products cleared as physician samples also should be assessed under section 4A of Central Excise Act, 1944. Show Cause Notice was issued proposing to demand the differential duty along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand along with interest and imposed penalty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only ground which was mentioned in the Show Cause Notice was that since the goods had not been sold, the provisions of Section 4(1)(a) of the Act could not be applied. We find that in the show cause notice, the Department has, thus, accepted that no monetary consideration or any other consideration had been received by the assessee or the distributors from a doctor or concerned to whom free distribution of sample packs had been made. Further there was no allegation in the show cause notice that the price at which the goods were sold by the assessee to the distributors was not sole consideration. In fact, the genuineness of the price at which the physician samples were sold by the assessee to the distributors was not even doubted. It is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal consideration, if any, flowing directly or indirectly from the buyer to the assessee in connection with the sale of such goods, and such price-cum-duty, excluding sales tax and other taxes, if any, actually paid, shall be deemed to include the duty payable on such goods. (2) The provisions of this section shall not apply in respect of any excisable goods for which a tariff value has been fixed under sub-section (2) of section 3. (3) For the purpose of this section, - (a) "assessee" means the person who is liable to pay the duty of excise under this Act and includes his agent; (b) persons shall be deemed to be "related" if - (i) they are inter-connected undertakings; (ii) they are relatives; (iii) amongst them the buyer is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods." 9. As per the aforesaid provision, it is the transaction value which is to be determined and on which excise duty is payable. 10. As mentioned above, the assessee had put up the defence that since physician samples were not meant for sale by distributors but were to be given free of cost to the physicians, the assessee had charged lesser price. This statement of the assessee had not been doubted. The only reason in the show cause notice given was that since the physician samples were given free of cost by the distributors and no price was charged, the case was not covered by the provisions of Section 4(1)(a) of the Act. This is clearly fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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