Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Cce Daman on 16 June, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT:
II
Appeal No.E/987, 1711, 1712/2006
Arising out of: OIA No.KS/16/Daman/2006, dt.24.02.2006,
OIA No.KS/17/Daman/2006, dt.24.02.2006
Passed by: Commissioner of Central Excise & Customs (Appeals), Daman
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 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:
CCE Daman
Respondent:
M/s Olive Healthcare & vice versa Represented by:
Shri Prasad Paranjape, Adv. for the Assessee; Shri J.S. Negi, SDR for the Revenue.
CORAM:
MRS. ARCHANA WADHWA, MEMBER (JUDICIAL) MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing/Decision:16.06.10 ORDER No. /WZB/AHD/2010 Per: Mrs. Archana Wadhwa:
All the three appeals two filed by the assessee and one filed by the Revenue are being disposed off by a common order as they arise out of the same impugned order passed by Commissioner (Appeals).
2. After hearing both sides, we find that the dispute is in respect of valuation of the physicians samples of medicaments which are distributed free of cost by the appellant. The Commissioner (Appeals) has held that the Boards circular No.813/10/2005-CX, dt.25.4.05, which supersedes the earlier Circular No.643/34//2005-CX, dt.1.7.02 will have retrospective effect as the same is in the nature of clarification. Inasmuch as the later circular dt.25.4.05 requires determination of physicians samples in terms of Rule 6 of Central Excise Valuation Rules, 2000, he has upheld the order of original adjudicating authority and has confirmed the duty and imposed penalty. The appellants contention is that the period involved in the present appeal is from July 2003 to March 2004 in the first show cause notice and April 2004 to December 2004 in the second show cause notice. As such, the entire period involved in both the appeals is prior to 25.4.05, when the subsequent circular was issued. During the period in question, the earlier circular of the Board issued on 1.7.02 was governing the field. The department is bound by such circulars, as held in number of judgments and as such the assessment of physicians samples is required to be made in terms of Boards circular dt.1.7.02.
3. For the above proposition, learned advocate relied upon the Tribunals judgments in the case of CCE Daman Vs., Wackhardt Ltd. 2009 (241) ELT 114 (Tri-Ahmd.), CCE Daman Vs. Indchemie Health Specialities Pvt.Ltd. 2009 (239) ELT 33 (Tri-Ahmd.), M/s Meridian Enterprises Pvt.Ltd. Vs. CCE Daman 2008 (232) ELT 838 (Tri-Ahmd.), M/s Bezel Pharma Pvt. Ltd. Vs. CCE Mumbai-V 2008 (221) ELT 512 (Tri-LB). He has also made reference to Honble Supreme Courts judgment in the case of M/s Suchitra Components Ltd. vs. CCE Guntur 2007 (208) ELT 321 (SC), laying down that the beneficial circular are to be applied retrospectively and oppressive circulars are applicable only prospectively.
4. We find that the ratio of all the above decisions are that for the period prior to 2005, the assessable value of physicians samples is required to be arrived at in terms of Boards circular dt.1.7.02, qualifying adoption of value at 115 % cost of the production. Inasmuch as in the present 2 appeals filed by the assessee, entire period is covered by the above circular, by following the ratio of the above decision, we set aside the duty confirmation and penalty imposed upon the appellants and allow both the appeals filed by them.
5. As regards appeal filed by the Revenue, we find that the appellate authority has held in favour of the Revenue and has rejected the appellants plea, and no part of the order is against Revenue. As such, there cannot be any cause for grievance by the Revenue so as to file the appeal against the order of the Commissioner (Appeals). We, accordingly, reject the appeal filed by the Revenue.
(Pronounced in Court)
(B.S.V. Murthy) (Archana Wadhwa)
Member (Technical) Member (Judicial)
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