TaxTMI 
TaxTMI 
2023 (7) TMI 580
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....al has been dismissed. 2. The appellant is a manufacturer of P or P Medicines and the valuation of the goods manufactured by the appellant is undertaken with reference to the retail sale price under section 4A of the Central Excise Act, 1944 [the Excise Act] w.e.f. 07.01.2005. 3. The department noticed that during the period from 25.04.2005 to 31.03.2007 the appellant cleared the physician samples by taking the assessable value as 115% / 110% of the cost of production of such goods by applying rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules 2000 [the 2000 Rules] and the Board Circular dated 01.07.2002. The department believed that as per the Circular dated 25.04.2005 issued by the Board, the va....
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....egorically stated that where there is no statutory requirement under the provisions of the Weights and Measures Act, to declare the retail price on the packages, then the provisions of section 4A will not apply even if the goods are notified under the said section. It may be stated that the circular clearly also dealt with the clearance of physician samples. Therefore, the issue of valuation of physician samples would have to be determined under section 4 of the act. At this juncture, it may be stated that circular of the board bearing No. 813/10/2005 CX dt. 25.4.2005 also recognises that such samples are required to be value in terms of the valuation of physician samples should be determined in terms of rule 4 of the said rules." ....
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....took the support of Circular dated 28.2.02 and argued that it should not be under Section 4 - transaction value but it should be under Rule 11 read with Rule 8 of Central Excise Valuation Rules 2000. I do not agree with their contention. Though the physician samples are supplied free, they are of same nature of the main P or P Medicines in function. Board's Circular of 2005 and the recent Circular of 2010 mention that even if it is for marketing purposes, once MRP is mentioned, valuation should be as per MRP under Section 4A of Central Excise Act, 1944. They further contend that under the Weights and Measures Act, 1976, they are not required to mention the MRP. Even though it is mentioned, various clarifications made through different c....
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....at in view of the decision of the Larger Bench of the Tribunal in Cadila Pharmaceuticals Ltd. vs. Commr. of C. Ex. Ahmedabad-II [2008 (232) E.L.T. 245 (Tri.-LB)] and the decision of the Supreme Court in Medley Pharmaceuticals Ltd. vs. Commr. of C. Ex., & Cus., Daman [2011 (263) E.L.T. 641 (S.C.)], the appeal would have to be dismissed. 10. The issue before the Larger Bench in Cadila Pharmaceuticals was also in respect of valuation of physician sample of medicines supplied free of cost. The operative part of views expressed by the majority is as follows: "31. In view of the above discussions, I am of the opinion that notwithstanding the non-availability of the normal sale price under Section 4(1)(a) of the Act, by reason of the g....
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....cian samples for the purpose of excise duty?" 13. After considering the earlier decisions, the Supreme Court observed as follows: "26. Therefore, the prohibition on the sale of Physician Samples intended for distribution to medical practitioners as free samples by Rule 65(18) of the Drugs Rules shall have no bearing or effect upon the levy of excise duty under the Act, since excise is a duty on manufacture, duty is payable whether or not goods are sold. Excise duty is payable even in case of free supply, since sale is not a necessary condition for charging duty under the Act. 27. Even assuming that Shri. Ganesh is correct, when he contends that physician samples are not allowed to be sold in the open market in view of t....