Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs M/S Aglowmed Ltd on 17 March, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT:
II
Appeal No.E/101, 200/2006
Arising out of: OIO No.18/COMMR/2006, dt.8.07.06
Passed by: Commissioner of Central Excise & Customs, Rajkot.
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. B.S.V. Murthy, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant:
M/s Aglowmed Ltd.
Respondent:
CCE Vapi & vice versa.
Represented by:
Ms. Padmavati Patil, Advocate for Assessee, Shri Sameer Chitkara, SDR for Revenue. CORAM:
MR. ASHOK JINDAL, MEMBER (JUDICIAL) MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing/Decision:17.03.10 ORDER No. /WZB/AHD/2010 Per: MR. B.S.V. Murthy:
The issue involved in these appeals by the department as well as the appellant is whether physicians samples manufactured and cleared for free distribution by the appellant has to be assessed on the basis of the assessable value at 115% of the cost of production or will have to be determined as per provisions of Rule 4 of Valuation Rules, 2000. The Commissioner (Appeals), in the impugned order, has held against the appellant on the ground that the CBEC Circular No.813/10/2005-CX, dt.25.04.05 only clarifies the legal position and therefore would have retrospective effect. On this basis, he has taken a view that the physicians samples cleared by the appellant during the period from 09.12.02 to March 2004 are liable to be assessed under this rule 4 and thereby has confirmed the demand of Rs.20,91,675/- with interest.
2. The appellant is in appeal against the order confirming the demand and Revenue is in appeal on the ground that the Commissioner (Appeals) in his order has held that the valuation has to be done on the basis of circular issued by the Board in 2005 thereby meaning that had the circular not been issued, valuation would have been done at 115% of the cost of production. Revenues contention is that the Commissioner (Appeals) should have taken the decision on the basis of law and not on the basis of circular.
3. Heard both sides. Learned advocate on behalf of the appellant submitted that not only there was a CBEC circular during the relevant period advising valuation of physicians samples at 115% /110% of cost of production, but there were several decisions of the Tribunal during the relevant period as reproduced below.
a) CBEC Circular No.643 /34/02, dt.1.7.02 2002(143) ELT 39
b) CBEC Circular No.813/10/2005-CX, dt.25.4.05 205 (183) ELT 3
c) M/s Alkem Laboratories Ltd. Vs. CCE Daman 2006 (203) ELT 102 (Tri-Mumbai)
d) CCE Daman Vs. M/s Aglowmed Ltd., Order No.A/1926-1927/WZB/06/C-III(EB), dt.25.7.06.
e) M/s Aglowmed Ltd. Vs. CCE Vapi 2009 (233) ELT 413 (Tri-Ahmd.)
f) M/s Alkem Laboratories Ltd. Vs. CCE Daman 2007 (213) ELT 684 (Tri-Ahmd.)
g) CCE Bangalore II Vs. M/s Aglo French Drugs & Indus.Ltd.
2008 (231) ELT 636 (Tri-Bang.)
h) M/s Bezel Pharma Pvt. Ltd. Vs. CCE Mumbai-IV 2008 (221) ELT 512 (Tri-LB)
4. Further, she also submits that CBEC circulars beneficial to the assessee are to be applied retrospectively while the circulars which are not beneficial have to be applied prospectively and in support of this contention, she relies on the decision of Honble Supreme Court in the case of M/s Suchitra Components Ltd. Vs. CCE Guntur, as reported in 2007 (208) ELT 321 (SC).
5. Further, he also relies upon the decisions of Honble Supreme Court in the case of Indian Oil Corpn. Ltd. as reported in 2004 (165) ELT 257 (SC), in the case of M/s Maruti Foam (P) Ltd. as reported in 2004 (164) ELT 394 (SC), and in the case of M/s Simplex Castings Ltd. as reported in 2003 (155) ELT 5 (SC). She submits that in view of the fact that in their own case, this Tribunal has taken a decision in their favour on the very same issue for a different period. On that ground alone, the appeal has to be allowed. Learned SDR reiterates the grounds of appeal mentioned above.
6. We find that in the appellants own case for a different period, this Tribunal has already decided the issue in their favour. Further, we also find that during the relevant period, the circular issued by the Board in 2002 was being followed and only in 2005, the matter was clarified. In view of the several decisions cited by the learned advocate, which we find are applicable to support her contention, we find that the impugned order has no merit and required to be set aside. Accordingly, we allow the appeal filed by the party and reject the appeal filed by the Revenue.
(Pronounced in Court)
(Ashok Jindal) (B.S.V. Murthy)
Member (Judicial) Member (Technical)
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