2019 (8) TMI 1233

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....ween January 2005 and November 2006 by the respondent. The first appellate authority had set aside the order of the original authority confirming duty liability of Rs. 32,24,985/- under section 11A of Central Excise Act, 1944, with appropriate interest under section 11AB of Central Excise Act, 1944, besides imposing penalty on the respondent as well as the Managing Director, under rule 25 and 26 of Central Excise Rules, 2002. 2. The clearances were effected on assessment by resort to cost construction basis to which the jurisdictional central excise officers objected as, according to them, 'patent and proprietary medicines', covered under Drugs (Price Control) Order, 1995, was liable to duty on the 'retail selling rice' as prescribed under....

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....les, 2000. Reliance has been placed in the decision of the Tribunal in Goa Antibiotics & Pharmaceuticals Ltd v. Commissioner of Central Excise, Goa [2014 (314) ELT 546 (Tri.-Mumbai)] and of the Hon'ble High Court of Bombay in Indian Drugs Manufacturer's Association v. Union of India [2008 (222) ELT 22 (Bom.)]. 3. Learned Counsel for respondent claims that the 'physician samples' are, themselves, not subject to the Drugs (Price Control) Order and, can, thereby, be valued under section 4 of Central Excise Act, 1944 that the transaction between independent parties is sought to be portrayed as 'dictated price' without any evidence and that such a circuitous route for deployment of section 4A of Central Excise Act, 1944 is clearly not tenable i....

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.... per various case laws cited by the ld. Advocate for the appellant this Tribunal has been consistently taking the view that in respect of physician's sample being manufactured by job worker and sold to the principal manufacturer, valuation is to be done as per Ujagar Print's judgment of Apex Court. However, we find in this case appellant's themselves are not assessing duty as envisaged in Ujagar Print's case, which requires specifying cost of all the raw materials, packing material supplied by the principal manufacturer, job charges and profit element. In fact, principal manufacturer on his own dictating the assessable value to be declared. This has come out clearly in the statement mentioned by the ld. AR Ld. Advocate for the appellant has....

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....an Drugs Manufacturer's Association and the earlier decision of the Tribunal in Commissioner of Central Excise v. Sun Pharmaceuticals Industries Ltd Commissioner [2009 (245) ELT 749 (Tri.)], to hold that '16. The facts of the case reveal that the appellants are selling physician samples of their products to one M/s. Aditya Medisales Ltd. at an agreed price between the two, who in turn is distributing the same to Doctors and Physicians through medical representatives appointed by the appellants themselves. The appellants have their warehouse at Bhiwandi from where the samples are sold to M/s. Aditya Medisales Ltd. who is also located at Bhiwandi. For part of the period, the samples despatched were accompanied by delivery challans in the na....