2017 (11) TMI 602

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....ty for the period 25-4-2005 to 28-2-2007. The case of the department is that valuation of physician sample should have been done in accordance with provision of Section 4(1)(b) of Central Excise Act, 1944 read with Rule 4 of the Central Excise Valuation Rule, 2000 read with Board Circular dated 25-4-2005. Accordingly, demand of differential duty was raised by show cause notice dated 22-6-2007. The show cause notice was adjudicated whereby demand of differential duty was confirmed and equal amount of penalty was imposed. The respondent before adjudication paid entire confirmed duty alongwith interest. The penalty of Rs. 4,69,000/- was also imposed on Shri. Pawan Bhardwaj against manufacture for Ranbaxy. Being aggrieved by the Order-in-Origin....

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....espondent submits that issue involved was of interpretation of law regarding the valuation of physician sample, various cases were going on this issue. The issue was finally decided by Hon'ble Bombay High court in Indian Drugs Manufacturers Assocn. Vs. Union of India[2008(222) ELT 22(Bom)]. He submits that though the order was passed on 28-9-2006, it ws reported in 2008 only thereafter issue attained finality therefore till that time respondent was of bonafide belief that the valuation adopted by them i.e. 110% of cost of production is correct and legal. He further submits that whatever valuation was adopted by the respondent and duty thereon was declared in the monthly ER1 return. Since there was Board Circular it was to the department....

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.... Since ER 1 returns was regularly filed wherein valuation adopted by the respondent and payment of duty there upon was disclosed, no suppression of facts can be alleged as held in following decisions.: (a) Commissioner of C. Ex. Noida Vs. Accurate Chemicals Industires [2014(310)ELT 441(All.)] (b) Accurate Chemicals Industrieal Vs. Commissioner[2014(300)ELT 451(Tri. Del)] He further submits that on the very same issue department has earlier issued show cause notice wherein department sought valuation to be done under Rule 8, therefore for this reason also the fact was known to the department. In this regard he placed reliance on the following judgments: (a) Nazam Sugar Factory Vs. Collecotr[2006(197)ELT 465(S.....