TaxTMI 
TaxTMI 
2008 (7) TMI 179
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....the Central Excise Valuation Rules. Revenue, proceeded against the Respondent in respect of the valuation of the physician samples cleared by them free of cost. Consequently, there was a proposal to demand duty of Rs. 1,46,596/- and Rs. 2,932/- Education Cess with interest. There was also a proposal to impose penalty. The Original Authority confirmed the demand mentioned in the show cause notice for the period from 25-4-2005 to 31-10-2005 under Section 11A of the Central Excise Act. He confirmed the payment of interest also under Section 11AB, however, no penalty was imposed. 4.1 The Respondents appealed to the Commissioner (A). The Commissioner (A) after a very detailed discussion of the issues involved set aside the impugned order passed by the Original Authority and allowed the appeal. The decision of the Commissioner (A)'s is that the valuation of the physician samples should be done under Rule 11 Read with Rule 8 of the Central Excise Valuation Rules, 2000 which amounts to valuation on the basis of cost construction. The Respondents paid the duty in such a manner and therefore, the Respondent's action was approved in the impugned order of the Commissioner (A). 4.2 The Revenu....
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....les be determined under Rule 11 read with Rule 4 and such a valuation would be reasonable and consistent with the principles and 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 are not cleared for captive consumption. Hence, the valuation of physician samples cannot be determined under Rule 11 read with Rule 8 of the 2000 Rules. 4. The Commissioner (Appeals) has relied on the decision of the Hon. CESTAT (LB) in the case of Alkem Laboratories Ltd. v. CCE, Daman reported in 2006 (203) E.L.T. 102 (Tri.-Mumbai) wherein valuation is ordered to be done under Rule 11 read with Rule 8 ibid. The said decision of the Tribunal is not applicable to the present case since the period covered in the Tribunal' decision is prior to the date of the Board's Circular dated 25-4-2005. However, in the said decision, the Hon'ble CESTAT has supported the contention that circular dated 1-7-2002 will prevail till the date of ....
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....ined under Rule 4 of the Central Excise Valuation Rules, 2000 and according to the Revenue, this Circular has been upheld by the Hon'ble Bombay High Court. Revenue has not made out a case that the Hon'ble Bombay High Court has decided that the valuation adopted in case of physician sample should be based on Section 4A price and such a contention has not been made. The Bombay High Court has only upheld the Board's Circular dated 25-4-2005 which says that the valuation has to be adopted in terms of Rule 4. In the case of physician samples, the Commissioner (A) has reasoned that the same is not sold and whatever is sold, the value is done in accordance with Section 4A. However, when the physician samples are not sold, the Section 4A value cannot be adopted. Therefore, the Commissioner (A) has taken recourse to Rule 11 read with Rule 8 of the Valuation Rules and he has made a very detailed analysis and given a finding. 6.2 It was urged by the learned advocate for the Respondent that the departmental appeal does not in any way indicate or adduce any evidence to establish that any value of such goods as determined under Section 4 is available prima facie invoking the provisions of Rule ....
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....f any value of such goods sold is available under Section 4 method of valuation and in the absence of any such value being available, the question of resorting to provisions of the said Rule 4 would itself prima facie not arise at all. 6.7 Further, it was stated that the Hon'ble High Court of Bombay in the case cited by the Revenue has only upheld the validity of the Circular dated 25-4-2005 but did not consider the aspect of value of comparable goods, as determined and available under Section 4A being adopted for valuation of physician samples under the said Rule 4 thereof. Therefore, the same cannot be used against the Respondents. 6.8 It was also argued by quoting the following from the decision of the Hon'ble Supreme Court in the case of Union of India v. Dhanwati Devi JT as reported in 1996 (6) SCC 44, wherein it has been laid down beyond any doubt. 'A judgment is only an authority for what it actually decides... Every judgment must be read as applicable to the particular facts proved or assumed to be proved. It is only the principle laid down in the judgment is binding law under Article 141 of the Constitution. Abstract ratio decided alone has force of law and is binding. ....