Custom, Excise & Service Tax Tribunal
M/S. Piramal Healthcare Ltd vs Commissioner Of Central Excise, Raigad on 12 March, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.1
E/S/1747/11-Mum & APPEAL NO. E/1539/11
(Arising out of Order-in- Appeal No.US/83/RGD/2011 dtd.15/07/2011 passed by the Commissioner of Central Excise (Appeals), Mumbai )
For approval and signature:
Honble Mr S.S.Kang, Vice President
Honble Mr.Sahab Singh, Member(Technical)
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1. Whether Press Reporters may be allowed to see : No
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 : seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
============================================================= M/s. Piramal Healthcare Ltd.
:
Appellant VS Commissioner of Central Excise, Raigad Respondent Appearance Shri Vinod Awtani, C.A. for Appellant Shri A.K.Prabhakar, Supdt.(AR.) for Respondent CORAM:
Mr. S. S. Kang, Vice President Mr.Sahab Singh, Member(Technical) Date of hearing: 12/03//2012 Date of decision 12/03/2012 ORDER NO. Per : S.S.Kang Heard both sides.
2. The applicants filed this application for waiver of pre-deposit of duty of Rs. 27,12,805/-, interest and penalty. The demand is in respect of physician samples.
3. The brief facts of the case are that the applicants are engaged in the manufacture of patent and proprietary medicaments and also manufacturing physician samples. The applicants manufacturing the medicaments and samples for M/s. Novartis and paying duty on the samples as per the provisions of Sec.4(1)(a) of the Central Excise Act. The Revenue issued show-cause notice on the ground that physician samples are meant for free distribution as a part of marketing strategy and therefore no value is mentioned on such samples. In the absence of such value, duty is to be assessed under the provisions of Sec.4(1)(b) of the Central Excise Act.
4. The contention of the applicants is that the samples are manufactured for M/s. Novartis and transaction value is available and the applicants are paying duty on the transaction value. It is not the case of the Revenue that the applicants were manufacturing samples on their own and cleared the same for free distribution. The applicants relies on the decision of the Tribunal in the case of Themis Laboratories Pvt.Ltd. vs CCE, Mumbai in Appeal No.E/244/09, E/149 & 150/10 (Final Order dated 01/02/2011) to submit that when the transaction value is available, the samples are to be assessed as per the provisions of Sec.4(1)(a) of the Central Excise Act.
5. Revenue relied upon the findings of the lower authorities to submit that the samples are for free distribution as a part of marketing strategy and therefore, the samples are liable to duty as per Sec.4(1)(b) of the Act.
6. We find that the Tribunal in the case of Themis Laboratories case where the demand is confirmed on the same ground, held that when transaction value is available, the samples are to be assessed on the basis of transaction value. In view of the above decision, we find, prima facie, that the applicants had a strong case in their favour . Therefore, the dues are waived for hearing of the appeal.
7. Further we find that the Commissioner(Appeals) had dismissed the appeal for non compliance with the provisions of Sec.35F of the Central Excise Act as the appellants failed to comply with the conditions of the stay order. The Commissioner(Appeals) had not decided the appeal on merits. In view of the fact that for hearing of the appeal pre-deposit of dues are waived, therefore, the impugned order is set aside and the matter is remanded to the Commissioner(Appeals) for deciding the appeal on merits after affording an opportunity of hearing to the appellants.
8. The appeal is allowed by way of remand.
(Pronounced in court) Sahab Singh Member(Technical) S. S. Kang Vice President pv 4