TaxTMI 
TaxTMI 
TaxTMI 
2014 (2) TMI 581
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....riod from August, 2011 to June, 2012. The first and last show-cause notice was adjudicated by separate orders, 2 nd and 3 rd by another order and 4th and 5th by another order. 4th and 5th show-cause notice were adjudicated by Additional Commissioner, and thereafter appeal was filed by the appellants before the Commissioner (Appeals) who confirmed the orders of original authority. The other four show-cause notices were adjudicated by Commissioner. Appellants are before us against these four orders. Total duty involved is 3,48,59,897/- besides redemption fine, penalty and interest. 2. The appellant is manufacturer of P & P medicaments, which are covered under Section 4A of the Central Excise Act, 1944. The appellant also manufacture such P & P medicament as contract manufacturer. The dispute in regarding valuation of physician samples when the appellant has manufactured and cleared physician samples which are to be distributed free by the principal manufacturer. Appellant is clearing such physician sample by determining value as per Section 4(1) (a) of the Central Excise Act. 1944. Revenue is of the view that the duty is to be discharged on the value arrived at as per Section 4A, i.....
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....ted that they are manufacturing physician samples and selling the same on principal to principal basis, the assessment has to be done under Section 4(1) (a) of the Central Excise Act. Ld. Counsel further argued that it is only in those cases where the goods are not sold or the price is not the sole consideration etc. that the value is required to be determined under the provisions of Section 4(1)(b). Since, in the instant case the physician samples are actually sold by the appellant to the pharmaceutical companies, the question of determining the value under the provisions of Section 4 (1)(b) simply does not arise. Ld. Counsel further argued that the Commissioner in the impugned order has not disputed the determination of the value of physician samples under Section 4(1)(a) of the Central Excise Act, 1944 but post 2005 the assessment has been shifted under Section 4A. This is incorrect. Ld. Counsel has the quoted the following case laws in support of his contention:- i. Commissioner of Customs & Central Excise, Daman Vs. Sidmak laboratories (India) Pvt. Ltd. reported in 2009 (242) ELT 255 (Tri-Ahmd) . ii. Commissioner vs. Sidmak Laboratories (India) Pvt.....
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....ce to retail sale price. (1) The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of sub-section (2) shall apply. (2) Where the goods specified under sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in section 4, such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if any, from such retail sale price as the Central Government may allow by notification in the Official Gazette. (3) ----------------" 4.2 Ld. AR drew attention to para 30 of Cadila Pharmaceuticals Ltd. (supra) judgement, which reads as:- "30. The fact that medicines/medicaments are specified goods within the meaning of Section 4A of the Act since January, 2005, does not appear to have been brou....
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....e of the powers conferred by sub-section (1) and sub-section (2) of section 4A of the Central Excise Act, 1944 (1 of 1944), the Central Government hereby specifies the goods mentioned in column (3) of the Table below and falling under Chapter or Heading No. or Sub-heading No. of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) mentioned in the corresponding entry in column (2) of the said Table, as the goods to which the provisions of the said sub-section (2) shall apply, and allows as abatement the percentage of retail sale price mentioned in the corresponding entry in column (4) of the said Table:- TABLE S. No. Chapter or Heading No. or Sub-heading No. Description Abatement as a percentage of retail sale price (1) (2) (3) (4) 1. 3003. 10 Patent or proprietary medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic 35% 2. 3003. 20 Medicaments (other than patent or proprietary) other than those which are exclusively used in Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic systems 35% 2. This notification shall come into force on the 8th day of January, 2005. &nb....