2018 (6) TMI 981

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....had cleared physician samples by determining the value on the basis of cost of 100% and paid Central Excise duty on the said physician samples to the extent of Rs. 36,16,487/- The contention of the department is that the respondent should have determined the value on pro-rata basis. Thus the respondent had under-valued the impugned physician samples which resulted in short levy of duty to Rs. 41,12,014/-. Show-cause notice dated 2nd June 2008 was issued. Adjudicating authority confirmed the demand. Being aggrieved by the said order, the respondent filed art appeal before the Commissioner (Appeals) who upheld the order-in-original inasmuch as it confirmed the demand of duty. However, the penalty imposed by the adjudicating authority was set ....

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.... Excise Act, 1944 is not available. 5. We have carefully considered the submissions made by learned A.R. and we have also bone through the grounds of Cross Objection. We find that the fact is not under dispute that the appellants are clearing the physician samples not freely but on sale basis to the brand name owner. Therefore, the sale price is available. Therefore, the valuation has to be determined in terms of Section 4(1)(a) of the Central Excise Act, 1944, the valuation on pro-rata basis can only be applied when the transaction value is not available in such case the valuation has to be determined in accordance with Section 4(1)(b) and valuation rules made thereunder. Since in the present case transaction value is available therefore ....