Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Unknown on 15 January, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
Appeal No. : E/769 & 770/11.
Arising out of : OIA NO.DA/332-333/DMN/VAPI-I/2010-11
DATED 31/03/2011.
Passed by : Commissioner of Central Excise & Customs (Appeals),
For approval and signature:
Mr.M.V. Ravindran, Honble Member (Judicial)
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 : M/s.Megha Healthcare P. Ltd.
Respondent : CCE, Daman.
Represented by:
for Appellant : Shri Somanathan Pattari (Manager) for Respondent : Shri Manoj Kutty (AR) CORAM:
MR.M.V. RAVINDRAN, HONBLE MEMBER (JUDICIAL) Date of Hearing/Decision: 15/01/13.
ORDER No. /WZB/AHD/2012, dt. Per: M.V. Ravindran:
1. These two appeals are directed against Order in Appeal No.DA/332-333/DMN/VAPI-I/2010-11 dated 31/03/2011.
2. The relevant facts that arises for my consideration in these appeals are that the appellant herein gets their products manufactured through one M/s.Nirman Pharma, GIDC, Vapi, on third party business basis. The pharmaceutical products are manufactured and cleared by M/s.Nirman Pharma on discharge of appropriate Central Excise duty as per provisions of Section-4A of the Central Excise Act, 1944. As a common practice in the industry, appellants procures physicians samples manufactured by M/s.Nirman Pharma. The said physicians samples are also cleared by M/s.Nirman Pharma on discharge of Central Excise duty based on proportionate/pro-rata value of the sales pack of final products.. After receiving such physicians samples from the said M/s.Nirman Pharma, the appellant distributes these samples free of cost to various Medical Practitioners. The appellant herein is claiming refund of Excise Duty paid by M/s.Nirman Pharma under Section-4A of the Central Excise Act, 1994 on the ground that provisions of Section-4A are not applicable for Physicians Samples and provisions of 4(1)(a) will be applicable and M/s.Nirman Pharma has paid duty in excess than the actual duty liability, that may arise as per Section-4 of the Central Excise Act, 1944. Both the authorities have passed orders against the appellant and hence this appeal.
3. The learned authorized representative Shri SomathanPattari, Manager of the appellants, appeared before me. It is his submission that for the valuation of any excisable goods, first to ascertain the MRP value under Section-4A of the Central Excise Act, 1944 for adopting any valuation. It is his submission that provisions of Sec.4A are not applicable for valuation, but Section-4 is applicable. He relied upon the decision of the Tribunal in the case of SIDMAK Laboratories (India) Ltd. [209 (242) E.L.T. (Tri.-Ahmed)] which has been upheld by the Apex Court [2011 (270) ELT A-90]. He further submits that even the Board Circular No.813/10/2005 CX dated 25/04/2005 relates to the valuation of samples distributed free of cost is not applicable in the case where the same is cleared on transaction value. It is also his submission that in the case of OMNI Protech Drugs Pvt. Ltd. [2011 (274) ELT 337 (T)], it was held that transactional value to be the assessable value when the Physicians Samples cleared on transaction value. He further submits that the reliance placed by the lower authorities on Circular dated 25/04/2005 is incorrect as the said circular is applicable for only those samples which are not sold at the time and place of removal. It is his submission that the reliance placed by the lower authorities on the decision of the Honble High Court of Mumbai in the case of Indian Drug Manufacturers Association is not applicable in the present case. It is his submission that since M/s.Nirman Pharma has paid excess duty more than that is payable, the appellants being recipients of such goods, are eligible for claiming refund of the amount of excess duty paid by the manufacturer.
4. The ld. A.R. on the other hand would reiterate the findings of the impugned orders.
5. I have considered the submissions of both the sides. It is undisputed facts that the appellants herein are doing the business of pharmaceutical products. It is also undisputed that the appellant gets pharmaceutical products manufactured by M/s.Nirman Pharma. It is also undisputed that while discharging duty liability on the Physicians Samples, the manufacturer M/s.Nirman Pharma has arrived at assessable value of Physicians Samples on pro-rata basis of the value of sales pack. It is also undisputed that the self-assessment made by M/s.Nirman Pharma for discharging duty liability under Sec.4A of the Central Excise Act, 1944, are not disputed before any authority.
6. The question involved in these appeals is whether the appellant herein is eligible to claim the amount which has been paid in excess by M/s.Nirman Pharma. Without going into any further, the first and foremost question that arises for my consideration is whether the appellant herein is eligible for refund of the so-called excess duty paid by M/s.Nirman Pharma. I find that M/s.Nirman Pharma has assessed the Physicians Samples cleared by them and the said assessment of duty liability is discharged by M/s.Nirman Pharma as a manufacturer of excisable goods. In my view, the assessment which is not challenged by manufacturer after discharge of Central Excise duty cannot be challenged by the recipient of such products. Undoubtedly the appellant could have claimed refund of the amount of excess Central Excise Duty paid by M/s.Nirman Pharma provided the said Nirman Pharma had contested the duty liability under Section-4A of the Central Excise Act, 1944, on Physicians Samples, before the lower authority. I find that the impugned orders of the lower authorities rejecting the refund claims though on different reasons, needs to be upheld.
7. In view of the foregoing reasons, I find that the impugned order is correct and legal and does not suffer from any infirmity.
(Operative portion of the order pronounced in Court) (M.V. Ravindran) Member (Judicial) Jn/-
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