TaxTMI 
TaxTMI 
2011 (2) TMI 713
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....ories Pvt Ltd., are that it was noticed that the appellant was clearing the trade packs of medicaments manufactured by them on payment of Central Excise duty for which the assessable value was arrived as per the provisions of Section 4A of the Central Excise Act, 1944 i.e. based on MRP after availing the prescribed abatement in terms of notification No.02/2005-CE (NT) dated 07/01/2005. It was also noticed that the assessable value of physician samples was lower than the assessable value of the same medicaments cleared in trade packs. 3. On enquiry, the appellants submitted that they were not clearing the physician samples for free distribution to the doctors but are selling to other companies at an agreed price as ....
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....nds were confirmed. Aggrieved by the said order, the appellants are in appeal. From the above narrated facts, the issue before this Tribunal is that 'whether the goods (medicaments) manufactured by the appellants, which are in the nature of 'physician samples' should be assessed to Central Excise duty on the basis of value of comparable goods i.e. sale packs of medicines under Section 4A of the Central Excise Act, 1944 read with Rule 4 of Central Excise Valuation Rules, 2000 or should it be assessed on the basis of transaction value as per Section 4 (1) (a) of the Act or under cost construction method, as the case may be. 6. The Ld. Advocate appearing on behalf of the appellants submit that it is not statutorily require....
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....ion value is available at factory gate, there is no need to take recourse to Section 4 (1) (b) of the Act, read with Valuation Rules. To support their contention that the assessable value should be as per Section 4 (1) (a) of the Act is proper, they relied upon on the decision of the Tribunal in the case of Mayer Health Care Pvt Ltd., Vs. CCE, Bangalore, reported in 2009 (247) ELT 488 (Tri-Bang) and CCE Vapi Vs. Sun Pharmaceuticals Industries Ltd., reported in 2008-TIOL-1903-CESTAT AHM. 8. On the other hand, the Ld. DR carefully relied on the decision of Indian Drugs Manufacturer's Association (IDMA) (supra) and submitted that the Hon'ble High Court of Bombay has held that the physician samples are to be valued as per Section 4 (1) ....
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.... practice of the wholesale trade in such goods, such goods are sold by the assessee at different prices to different classes of buyers (not being related persons) each such price shall, subject to the existence of the other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such class of buyers; [(ia) where the price at which such goods are ordinarily sold by the assessee is different for different places of removal, each such price shall,, subject to the existence of other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such place of removal;] (ii) where such goods are sold by the assessee in the course of wholesale trade fo....
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.... in any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed. 12. In this case, we find that the appellants have cleared their goods to the buyers, who are admitted not the related person, on a contractual price, the ingredients of Section 4 (1) (a) are complied by the appellants to arrive at assessable value is the transaction value. 13. As contended by the DR that as the physician samples are made free of sale and the medicaments are governed by MRP based valuation and these physician samples are for free distribution, the valuation is to be arrived on value of the comparable goods as held by the Hon'ble High Court of Bombay in the case of IDMA (supra). W....
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....on the transaction value in terms of Section 4 of the Central Excise Act.' and finally this Tribunal has observed that the samples are not distributed by the appellants free but cleared on receipt of consideration. Hence, the Central Excise duty is payable on transaction value. 15. Reliance placed by the Ld. DR in the case of CCE, Daman Vs. Sun Pharmaceuticals Ltd., (supra) is not applicable to the facts of this case, as in that case the facts are not similar to the case in hand. In fact in that case, the delivery and distribution of physician samples were under the control of the assessee himself and the medical representative (who are the employees of the representative) distributed free samples to the physician....