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2018 (3) TMI 619
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....ued that Larger Bench of the Tribunal their own case reported in 2006 (202) ELT 182 has held that the physician samples cannot be assessed under Rule 4 of the Central Excise (Valuation) Rules 1975, after comparing the value with the normal trade pack. He relied on the decision of the Tribunal in the case of ZYG Pharma Pvt. Ltd. 2016-TIOL-3250-CESTAT-DEL wherein it has been held that when the samples were sold by the appellant-assesee on a transaction value to the principal customer, such transaction value should form on the basis of assessment. He further pointed out that in the said decision, the Tribunal had held as follows: "11. Regarding goods manufactured on loan licence basis where raw material and packing material were given by the principal brand owner, the appellant-assessee followed cost construction method to value the physician samples cleared by them to the principal manufacturer. The Hon'ble Supreme Court in the case of Biochem Pharmaceuticals (supra) held that the provisions of Rule 3 to 5 of the Valuation Rules, 1975 are not applicable. We note that Rule 4 of 1975 Rules and Rule 4 of 2000 Rules are identical. Further, the Hon'ble Supreme Court also referred....
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....relied on the decision of the Hon'ble High Court of Mumbai in the case of Indian Drugs Manufacturer s Association 2008 (222) ELT 22 (Bom). 4. We have gone through the rival submissions. We find that it is not in dispute that the physician samples are cleared free of cost for distribution to the physicians as samples. Other than the packing of the goods, the goods are identical in nature in respect of quality. Even the packing is similar in many cases although the physician samples would contain and indication to that effect and would not contain the MRP. 4.1 In this regard, we find that the Hon'ble High Court of Bombay in the case of Indian Drugs Manufacturer s Association (supra) held as follows: "21. Physicians free samples are admittedly not sold and delivered at the time and place of removal or at any time thereafter and, therefore, the valuation of physicians free samples have to be determined under Section 4(1)(b) of the Act read with 2000 Rules. 22. Rule 4 of 2000 Rules is a general rule and it provides that the value of excisable goods shall be based on the value of such goods sold by the assessee for delivery at any other time nearest to the time of....
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....l of goods under assessment. The word such goods in Rule 4 clearly means that the goods in question must be similar or identical to and have same quality or character to the goods sold and delivered. In other words, what Rule 4 provides is that in all cases where the goods are not sold and delivered at the time and place of removal, its valuation is to be made by taking the value of such goods sold and delivered at the time nearest to the time and place of removal of the goods in question. 26. The above method of valuation contained in Rule 4 can be best understood by the following illustration. Suppose on 1st April, 2006 the goods manufactured by the assessee are sold and delivered to different parties from the factory gate/warehouse at 10.00 a.m., 12.00 noon and 4.00 p.m. respectively. If on the same day, similar goods are cleared otherwise than by sale at 1.00 p.m., then as per Rule 4, the value of goods cleared at 1.00 p.m. shall be determined by taking the value of the goods sold and delivered at 12.00 noon being the nearest to the time of the removal of the goods in question. 27. In our opinion, Rule 4 squarely applies to the clearances of physicians free sa....
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.... Rules provides for only one method of valuation based on the cost of production. Secondly, even under the 1975 Rules, the decisions of the Tribunal were to the effect that the physicians samples are liable to be valued by applying the value applicable to comparable goods and not the method based on the cost of production. Thirdly, as held by the Tribunal in the case of Medley Pharmaceuticals Ltd. (supra), Rule 4 and Rule 6(b)(i) of 1975 Rules being similar, the result would be same if Rule 4 is substituted by Rule 6(b)(i). In other words, the fact that rule similar to Rule 6(b)(i) of 1975 Rules is not to be seen in 2000 Rules would not preclude the revenue from valuing the physicians samples under Rule 4 especially when Rule 4 of the 2000 Rules is similar to Rule 4 of 1975 Rules. Therefore, valuation of physicians samples under Rule 4 of 2000 Rules would be reasonable and in consonance with the principles consistently followed in the last three decades. 30. Various decisions relied upon by the Counsel for the petitioners do not support the case of the petitioners because in none of those cases, the scope of Rule 4 of 2000 Rules has been considered. Decisions rendered unde....
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....Rule 11 the value of physicians samples has to be determined by using reasonable means consistent with the principles and the general provisions of 2000 Rules and Section 4(1) of the Act. As stated earlier, Rule 4 is the only general rule and, therefore, it is just and proper to hold that the valuation of physicians samples be determined under Rule 11 read with Rule 4 and such a valuation would be reasonable and consistent with the principles and the general provisions of the Rules and the Act. The contention that the physicians samples must be valued under Rule 11 read with Rule 8 cannot be accepted because, Rule 8 applies to cases where the goods are not sold but are captively consumed whereas, goods similar to physicians samples are in fact sold in the open market and in fact physicians samples are not cleared for captive consumption. Hence, the valuation of physicians samples cannot be determined under Rule 11 read with Rule 8 of the 2000 Rules." 4.2 It is seen that the Hon'ble High Court of Bombay has dealt with all the aspects which have been raised by the Ld. CA. The Hon'ble High Court clearly held that Rule 4 of the Valuation Rules can be applied to the instant situation....
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....he value cannot be determined under sub-clause (i), on the cost of production or manufacture including profits, if any, which the assessee would have normally earned on the sale of such goods." 6. Even Rule 6 does not apply as that Rule is applicable only in those cases where such goods are either sold by the assessee in retail or are used or consumed by him or on his behalf in the production or manufacture of other articles. In this scenario Rule 7 becomes applicable. As per which proper officer is to determine the value of such goods according to the best of the judgment. This Rule further mentions that for arriving on the best of his judgment he may have regard among other things to any one or more of the methods provided for in the earlier rules, namely, Rules 3 to 6. Rule 7 is as under : "RULE 7. If the value of excisable goods cannot be determined under the foregoing rules, the proper officer shall determine the value of such goods according to the best of his judgment, and for this purpose he may have regard, among other things, to any one or more of the methods provided for in the foregoing rules." 7. Thus, to arrive at valuation under this Rule, ....
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....nation of value under Rule 11 of the Central Excise (Valuation) Rules. The said rule permits the tweaking necessary to arrive at a close estimate of the assessable value. " 4.4 In the instant case it is seen that the physician samples are not sold by the appellants but are cleared free cost. It is not the appellant s case that any of the Rule 4 to 10 of the Central Excise Valuation (determination of price of excisable goods) Rules 2000 are directly applicable. Since no transaction value available, the assessment cannot be done under Section 4 (1) (a) and the assessment has to be done under Section 4 (1) (b). The assessment cannot be done under Section 4A as the said goods are not marked with MRP. The appellants are seeking to apply Rule 11 read with Rule 8 whereas Revenue is seeking to apply Rule 11 read with Rule 4 of the Central Excise Rules. It is apparent that neither Rule 4 nor Rule 8 of the Central Excise Valuation (determination of price of excisable goods) Rules, 2000 are directly applicable to the situation and both the rules have to be applied as reasonable alternatives with suitable adjustments in terms of Rule 11 of the Central Excise Valuation (determination of pric....