Custom, Excise & Service Tax Tribunal
Emil Pharmaceuticals Industries Pvt. ... vs Commissioner Of Central Excise ... on 19 December, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/1104/11-Mum., E/33/09-Mum., E/1381/11-Mum., E/1380/11-Mum., E/449/09-Mum. (Arising out of Order-in-Appeal No. RBT/139/2011 dated 30.03.2011, OIA No. YG/10.Th-II/08 dated 17.10.2008, OIA No. MI/AV/287,288/2011 dated 6.05.2011, KKS/21/Th-II/2009 dt. 13.2.2009 passed by the Commissioner (Appeals) Central Excise, Mumbai-I ) For approval and signature: Honble Dr. D.M. Misra, Member (Judicial) Honble Mr. P.K.Jain, Member (Technical) ============================================================
1. Whether Press Reporters may be allowed to see :
the 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 the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
============================================================= Emil Pharmaceuticals Industries Pvt. Ltd.
:
Appellant VS Commissioner of Central Excise Thane-II And Commissioner of Central Excise Thane-II Vs. Emil Pharmaceuticals Ind. Pvt. Ltd.
Medibious Laboratories Pvt. Ltd.
:
Respondent Appearance Shri S.S. Gupta, C.A. for Appellant Ms. D.M. Durando, Deputy Commissioner (A.R) for Revenue CORAM:
Dr. D.M. Misra, Member (Judicial)
Mr. P.K. Jain, Member (Technical)
Date of hearing : 19/12/2013
Date of decision : 19/12/2013
ORDER NO.
Per : P.K. Jain
Common issue is involved, therefore all the five appeals have been taken up together. Two appeals have been filed by the appellant M/s. Emil Pharmaceutical Ind. Pvt. Ltd. against the confirmation of the demand. Two other appeals have been filed by the Revenue against dropping of demand. Fifth appeals is Revenues appeal relating to M/s. Medibious Laboratories Pvt. Ltd. against dropping of demand.
2. Heard both sides at length.
3. The issue involved in all the five appeals is the valuation of physician samples manufactured by the assesseses and sold to the brand name holder (other pharmaceutical companies) on principal to principal basis, who in turn distributes the same free of cost to various doctors/physician. In all the cases, respective assesses have manufactured the said goods using their own raw material, packing material, machinery etc. The period involved in all the five cases is from 1.4.2005 onwards when MRP based assessment was introduced in respect of P & P medicaments. The issue is whether such samples should be assessed to duty as per Section 4(1) (a) or Section 4A.
4. We find, the said issue is covered by the Tribunal judgement in the case of M/s. Gelnova Laboratories (I) Pvt. Ltd. Vs. Commissioner of Central Excise, Belapur vide order No. A/948-951/13/EB/C-II dt. 28.10.2013. In the said order this Tribunal has observed as under: -
5. We have considered the submissions of both sides. There is no dispute that P.P. Medicament are covered by Section 4A of the Central Excise Act, 1944. There goods have been notified under Section 4A (1) vide Notification No. 2/2005- CE (N.T.) dated 07.01.2005, which reads as under:-
Medicaments Assessments on basis of retail sale price (MRP) In exercise of the powers conferred by sub-section (1) and sub-section (2) of section 4A of the Central Excise Act, 1944 (1 of 1944), the Central Government hereby specifies the goods mentioned in column (3) of the Table below and falling under Chapter or Heading No. or Sub-heading No. of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) mentioned in the corresponding entry in column (2) of the said Table, as the goods to which the provisions of the said sub-section (2) shall apply, and allows as abatement the percentage of retail sale price mentioned in the corresponding entry in column (4) of the said Table:-
TABLE S. No. Chapter or Heading No. or Sub-heading No. Description Abatement as a percentage of retail sale price (1) (2) (3) (4) 1 3003. 10 Patent or proprietary medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic 35%
2.
3003. 20 Medicaments (other than patent or proprietary) other than those which are exclusively used in Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic systems 35%
2. This notification shall come into force on the 8th day of January, 2005.
Explanation - For the purposes of this notification, retail sale price means the retail price displayed by the manufacturer under the provisions of the Drugs (Prices Control) Order, 1995.
6. We also note that Durg (Price control) Order, 1995 in paragraph 7 specifies how the retail price of formulation is to be determined. Further paragraph 8 of the said order empowers the Government to fix the retail price of a scheduled formulation in accordance with paragraph 7. Further paragraph 9 of the said order empowers Government to fix ceiling price of scheduled formulations. Further paragraph 14 provides for Carrying into effect the price fixed or revised by the Government, its display and proof thereof. Sub-paragraph (2) of the said paragraph reads as under :-
14. Carrying into effect the price fixed or revised by the Government, its display and proof thereof:
2. Every manufacturer, importer or distributor of a formulation intended for sale shall display in indelible print mark, on the label of container of the formulation and the minimum pack thereof offered for retail sale, the retail price of that formulation, notified in the Official Gazette or ordered by the Government in this behalf, with the words retail price not to exceed preceding it, and local taxes extra succeeding it, in the case of Scheduled formulations.
Provided that in the case of a container consisting of smaller saleable packs, the retail price of such smaller pack shall also be displayed on the label of each smaller pack and such price shall not be more than the prorata retail price of the main pack rounded off to the nearest paisa.
7. From the above, it is clear that requirement of displaying the retail price is only for the goods intended for sale. Since, physician samples are not intended for sale, requirement to indicate the retail sale price does not exist, in the law.
8. We also note that this Tribunal has been taking a view that physician samples manufactured on principal to principal basis are required to be assessed under Section 4 (1) (a) of the Central Excise Act as is evident form the various case laws quoted by Ld. Counsel for the appellant.
5. In view of the above, the appeals filed by the assessees are allowed and that of Revenue are dismissed.
(Pronounced in court) (D.M. Misra) Member (Judicial) (P.K. Jain) Member (Technical) Sm ??
??
??
??
5