TaxTMI 
TaxTMI 
2022 (7) TMI 351
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....ng three appeals pertain to Unit-2 of the Appellants. The common issue involved in the subject appeals is that valuation of medicaments supplied by the Appellants to institutional buyers like Indian Railways, ESI, BHEL, SAIL etc for their own use in the hospitals run by them. The packaging of the said medicaments is marked with the label "Not for sale/Hospital supply not for sale" and the same is not affixed with any MRP. These declarations on the packages supplied to institutional buyers are made on the specific request of the buyer as they do not intend to sell the same in retail. The aforesaid institutional buyers administer the medicines to the patients in the hospitals run by them either free of cost or at a nominal cost. In other words, there is no retail sale by these institutions to their patients and these supplies are for exclusive use by such institutions by providing treatment to their patients. The contention of the Revenue is that the Appellants were required to affix MRP on these goods and assess the same on MRP basis under Section 4A of the Central Excise Act, 1944. Accordingly, the Adjudicating Authority has confirmed the demand and the same was upheld by the Commi....
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....0.01.2020. The said orders were also accepted by the department and no further appeal was filed. In this position, the issue is no longer res-integra. For the ease of reference the order of this Tribunal dated 28.06.2019 is reproduced below:- "CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON'BLE MEMBER (TECHNICAL), MR. RAJU FINAL ORDER NO. A/11057-11059/2019 Date of Hearing: 28/06/2019 Date of Decision: 28/06/2019 RAJU This appeal has been filed by M/s Zydus Healthcare Ltd., earlier known as Biochem Pharmaceuticals Industries Ltd. In this order, we are also dealing with appeal filed by Revenue against M/s Zydus Healthcare Ltd. 2. Ld. Counsel for the appellant pointed out that the order impugned in their appeal relates to confirmation of two demands for the period Jan 2005- July 2012. He argued that they are engaged in manufacture of pharmaceutical products and most of their clearances are assessed under section 4A of the Central Excise Act, 1944, since these products are cleared with the intention of being offered for retail sale. He further pointed out that the appellants are also clearing goods to various institut....
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....spitals run by the these institutions. In many cases, the contract specifically requires the appellants to print on the packages the fact that the said products are not for sale but for the consumption of the said institutions. 2.3 Ld. Counsel pointed out that identical matter has been dealt by Tribunal in the case of USV Ltd. 2019-VIL-268-CESTAT-Ahm-CE wherein identical circumstances, it has been held that supplies intended for consumption of institutional buyers in their own hospitals and not intended for retail sale are not liable to be assessed under section 4A of the Central Excise Act, 1944. 3. Ld. AR relies on the impugned order. 4. We have carefully considered the rival submission. We find that the issue involved in this case relates to the applicability of assessment under section 4A to supplies of pharmaceuticals made for institutional buyers who are running hospitals and where the pharmaceuticals are intended for consumption in the hospitals and not for retail sale. Ld. Counsel has produced some certificates for various institutional buyers which confirm this fact. Revenue has not produced any evidence that the said goods are sold by the instit....
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....s from the date of notification in the Official Gazette or receipt of the order of the Government in this behalf by such manufacturer or importer. 2. Every manufacturer, importer or distributor of a formulation intended for sale shall display in indelible print mark, on the label of container of the formulation and the minimum pack thereof offered for retail sale, the retail price of that formulation, notified in the Official Gazette or ordered by the Government in this behalf, with the words 'retail price not to exceed' preceding it, and "local taxes extra" succeeding it, in the case of Scheduled formulations. Provided that in the case of a container consisting of smaller saleable packs, the retail price of such smaller pack shall also be displayed on the label of each smaller pack and such price shall not be more than the pro-rata retail price of the main pack rounded off to the nearest paisa.15. Display of prices of non-Scheduled formulations and price list thereof: 1. Every manufacturer, importer or distributor of a non-Scheduled formulation intended for sale shall display in indelible print mark, on the label of container of the formulation and the minimum pack thereof....
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....ding it, in the case of scheduled formulations. Similar type of provisions have also been made in the para no. 15 (1) of the said order in respect of non-scheduled formulations, the only difference being that the words 'retail price not to exceed' preceding it, and 'local taxes extra' succeeding it, have been replaced by the words maximum retail price' preceding it and the words 'inclusive of all taxes' succeeding it.4.3.4.1After the detailed analysis of the said para no.s 14(2) and 15(1) of the said DPCO, 1995, the following facts are extracted there-from;4.3.4.1.1.Who is required to adopt it? : Every manufacturer or importer or distributor of a scheduled or non-scheduled formulation.4.3.4.1.2.When are the said formulations intended for sale?4.3.4.1.3 What action is required to be taken? : shall display in indelible print mark;4.3.4.1.4.On which shall such action be taken? : (i) On the label of a container of the formulation & (ii) On the minimum pack thereof offered for retail sale.4.3.4.1.5.What will be displayed thereon? : (i) 'retail price not to exceed' & local taxes extra applicable for scheduled formations & (ii) 'maximum retail price' (MRP) inclusive of all taxes in respec....