Customs, Excise and Gold Tribunal - Delhi
Bezal Pharma vs Collector Of Central Excise on 20 August, 1998
Equivalent citations: 1998(103)ELT449(TRI-DEL)
ORDER Jyoti Balasundaram, Member (J)
1. In this case a duty demand of Rs. 32,920.24 has been confirmed on pharmaceutical products falling under Chapter 30 of the Schedule to the CETA, 1985 and a penalty of Rs. 10,000/- has been imposed on the appellants herein holding that they have violated the condition indicated at Col. No. 5 of SL. No. 24 of the table appended to the Notification 171/70, dated 21-11-1970. The period in dispute is April 1987 to April 1989.
2. The appellants have asked for a decision on merits and in their written submissions, they had stated that the only non-observance of the condition of the Notification is that the appellants did not pack their control samples of the products in a form different and distinct from trade packing, but that this was due to the fact that the control samples had to be representative of trade packs, and were retained in the factory and there was no clearance of the samples from the factory.
3. We have heard Shri Satnam Singh, learned SDR and perused the records.
4. We find that right from the beginning, the appellants claimed that they had clearly marked the control samples as not for sale; but the only condition of Sl. No. 24, Col. 5 of Notification 171 /70 which was not observed by them, was that they did not pack the samples in a different packing from trade pack. They have been consistently claiming that the control samples were drawn as per the Drugs and Cosmetics Act, 1940 and such samples were meant for retention in the factory, and not for sale. The adjudicating authority has not recorded any finding to controvert the claim that the samples in dispute on which duty demand has been raised were not retained by the appellants, but were cleared from the factory. In this view of the matter, we hold that there has been no clearance from the appellant's factory of the control samples which are the subject matter of the present dispute, and accordingly hold that no duty is payable thereon. We, therefore, set aside the duty demand. Since there has been no clearance from the factory, the question of contravention of Rules warranting penalty also does not arise hence we set aside the penalty also. In the result, the impugned order is set aside and the appeal allowed.