2008 (4) TMI 172

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....re of medicines. The dispute in the present appeal relates to the exemption notification No. 171/70-C.E. dated 27-11-70, which grants exemption to samples drawn for the purposes of test in a laboratory, purposes of quality control in the premises of the factory of manufacturer or any other premises approved by the Collector, used by Central Excise or drug controller authority. As per the condition attached to the said notification, the value of the sample should not exceed 1% of the total duty clearance during the preceding month and the sample should be packed in form distinctly different from the trade packing and has conspicuously marked "Samples not to be sold". 3. Proceedings were initiated against the appellant by way of issuance of ....

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.... Sr. No. 24 of the Notification No. 171/70-C.E. Reference here is made to the Tribunal's decision in case of Bezel Pharma - 1998 (103) E.L.T. 449 (Tri.) and in case of Bayer Diagnostics India Ltd. - 2001 (133) E.L.T. 140 (Tri.-Mumbai). However, on appeal, the Commissioner (Appeals), set aside the impugned order and allowed the appeal by observing as under : " I find that decision of Hon'ble Supreme Court in case of UOI v. Solar Pesticide Pvt. Ltd. - 2000 (166) E.L.T. 401 relied upon by the AC. for confirming the impugned demand of duty is not applicable to appellant's case. In Solar Pesticide's case, the Hon'ble Court was concerned with the issue of applicability of bar of unjust enrichment in a case where goods are captively consumed. In ....

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..... are concerned otherwise they are not samples. Even if, for argument sake, it is held that samples were not packed in a form distinctly different from regular trade packing, appellants are still eligible for exemption under said notification in as much as admittedly, laboratory where the tests were done, is situated within the appellant's factory compound, samples get destroyed during testing, medicines become marketable only after testing, proper records are maintained for samples and samples were not removed from the factory. In the following case, it has been laid down that even if the samples are not packed in form different and distinct from trade packing as required by Notification No. 171/70, benefit of exemption of the notification....