Custom, Excise & Service Tax Tribunal
Yes vs Represented By : Shri S.R. Dixit, ... on 23 October, 2012
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : E/637 of 2011 Arising out of : OIA No. Commr(A)/140/VDR-II/2011 dated 07.4.2011 Passed by : Commr. (Appeals) C. Excise & Customs, Vadodara For approval and signature : Honble Mr. B.S.V. Murthy, Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Appellant (s) : M/s. Bharat Parentarals Limited Represented by : Shri S.R. Dixit, Advocate Respondent (s) : Commissioner of Central Excise Vadodara
Represented by : Shri P.N. Sarvaiya, A.R. CORAM :
Honble Mr. B.S.V. Murthy, Member (Technical) Date of Hearing / Decision : 23.10.2012 ORDER No. _____________ /WZB/AHD/2012 Per : Mr. B.S.V. Murthy;
The issue involved in this case is the valuation method to be adopted for physician samples manufactured and sold by the appellant (Loan licensee) to the brand owner.
2. Learned advocate submits that he is not disputing the duty and interest, even though he feels that he has a case, since the appellant firm has agreed to bear the liability and decided not to contest the same. At the same time, he submits that appellant feels that penalty is not warranted. In the case of Cadila Laboratories Limited [2008 (232) ELT 245 (Tri. LB), the Larger Bench of the Tribunal had taken a view that physician samples has to be assessed on the basis of MRP since the manufacturer himself was the brand owner and was not selling the product in the market. In this case the appellant is actually selling the physician samples unlike the case of Cadila Laboratories Limited where physician samples were provided free; when physician samples were being sold to the manufacturer and the transaction value was available, appellant had entertained a bonafide belief that decision in the case of Cadila Laboratories, may not applicable to his case at all. In such circumstances, it can not be said that appellant had deliberately suppressed the facts or misdeclared with intention to evade duty and therefore imposition of mandatory penalty is not called for.
3. I have considered the submissions made by both sides. I find considerable force in the arguments advanced by the learned advocate that in view of the difference in facts existing in the case of Cadila Laboratories Limited and in the appellants case, it was possible to entertain a belief that the case of the appellant could be differentiated. Therefore, I consider that mandatory penalty is not warranted in this case. Accordingly, the demand for duty and interest is upheld as not contested and penalty is set-aside. Appeal is decided in above terms with consequential relief, if any, to the appellant.
(Dictated and pronounced in the Court) (B.S.V. Murthy) Member (Technical) .KL 3