Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs M/S P&B Pharma Limited on 23 August, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT:
II
Appeal No.E/69/2010 (Application No.E/S/77/2010)
Arising out of: OIA No.Commr.(A)/280/VDR-I/2009, dt.30.11.09
Passed by: Commissioner of Central Excise & Customs (Appeals), Vadodara
For approval and signature:
Honble Mrs. Archana Wadhwa, 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 .
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 P&B Pharma Limited
Respondent:
CCE Vadodara Represented by:
Shri Paritosh Gupta, Adv. for the Assessee; Shri R.S. Sangia, SDR for the Revenue.
CORAM:
MRS. ARCHANA WADHWA, MEMBER (JUDICIAL) MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing/Decision:23.08.10 ORDER No. /WZB/AHD/2010 Per: Mrs. Archana Wadhwa:
After dispensing with the condition of pre-deposit of duty and penalty inasmuch as the appellants have already deposited an amount of Rs.7,85,737/- out of the total demand of duty of Rs.17,30,934/-, we proceed to decide the appeal itself.
2. After hearing both sides duly represented by Shri Parithosh Gupta, learned advocate and Shri R.S. Sangia, learned SDR for the Revenue, we find that the appellants are engaged in manufacture of P&P medicines and the dispute in the present appeal relates to the assessable value of physicians samples. The said samples were being cleared by the appellant at the assessable value adopted on the basis of cost structure, whereas the Revenue entertained a view that the duty payment is required to be made at the value adopted on pro-rata basis of the value of regular pack. Accordingly, proceedings were initiated against them by way of issuance of show cause notice dt.28.12.07, raising demand of duty for the period 25.4.05 to 31.3.07. The said proceedings culminated into an impugned order passed by the authorities below, confirming demand of duty and imposing penalty.
3. Both sides agree that the issue on merit is no more res-integra and stand decided by Larger Bench decision in the case of Cadila Pharmaceuticals as reported in 2008-TIOL-1668 (CESTAT-AHM-LB).
4. However, the learned advocate has assailed the impugned order on the point of limitation. It is the appellants contention that there was lot of confusion in the field as regards correct legal position, which stands clarified only with the Larger Bench decision of the Tribunal. The Commissioner (Appeals) has rejected the appellants contention that the issue regarding valuation of physicians samples was clarified by Board vide its circular dt.24.5.05 and as such, there was no ambiguity regarding valuation of the samples.
5. However, we find that prior to the said circular, there was another circular of the Board issued in the year 2002 itself, laying down that physicians samples have to be cleared by adopting the assessable value at 115% of the cost of the same. Tribunal, in number of cases, has held that inasmuch as the issue was not free from doubt and there were judgments on both sides, which were finally considered by Larger Bench, who held against the assessee, the demand beyond the normal period of limitation would not be sustainable. One such reference can be made to Tribunals decision in the case of Marsha Pharma Pvt. Ltd. 2009 (248) ELT 687 (Tri-AHD).
6. In view of the above, we set aside the demand beyond the period of limitation and remand the matter to the Commissioner to quantify the demand within the period of limitation. Inasmuch as the issue was capable of adopting two different interpretations, penalty can also not be levied on the appellant. The same is, accordingly, set aside.
7. The stay petition as also appeal gets disposed off in above terms.
(Pronounced in Court)
(B.S.V. Murthy) (Archana Wadhwa)
Member (Technical) Member (Judicial)
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