Custom, Excise & Service Tax Tribunal
Yes vs Represented By : None on 3 February, 2011
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : E/1017 of 2008 Arising out of : OIO No. 23/Dem/Vapi/2008 dated 07.06.2011 Passed by : Commissioner of Central Excise, Daman Vapi For approval and signature : Hon'ble Mrs. Archana Wadhwa, Member (Judicial) 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? 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. Sun Pharmaceutical Industries Represented by : None Respondent (s) : Commissioner of Central Excise, Vapi
Represented by : Shri R.S. Sangia, SDR CORAM :
Hon'ble Mrs. Archana Wadhwa, Member (Judicial) Honble Mr. B.S.V. Murthy, Member (Technical) Date of Hearing : 03.02.2011 Date of Decision : 22.06.2011 ORDER No. _____________ /WZB/AHD/2011 Per : Mrs. Archana Wadhwa;
After rejecting the request for adjournment, we proceed to decide the appeal itself inasmuch as we are of the view that appeal can be disposed off even with the assistance of appellants. Accordingly, we have heard Shri R.S. Sangia, learned DR and have gone through the impugned order.
2. The appellant herein is engaged in the manufacture of PMP medicines falling under Chapter 30 of the first schedule of Central Excise Tariff Act, 1985. Apart from manufacturing and clearing the medicines in regular trade packs, for the purpose of sale, they were also clearing physician samples to their wholesale distributors, which were meant for further free distribution. The dispute in the present appeal relates to the valuation of the said physician samples. It is seen that the show cause notice dated 07.03.2008 was issued to the appellants raising demand of Rs. Of Rs. 2,48,56,141/- in respect of the physician samples cleared by them during the May 2005 to August 2007. As regards merits of the case, we find that the issue is no more res-integra and stands settled against the appellants by the Larger Bench decision of the Tribunal in the case of Cadila Pharmaceuticals Limited vs. Commissioner 2008 (232) ELT 245 (Tri. LB). In fact, in the appellants own case reported as CCE Daman vs. Sun Pharmaceutical Industries Limited2009 (245) ELT 749 (Tri. Ahmd.), the issue stands decided against them by majority decision.
3. However, it is seen that the appellants have contested the demand on limitation, on the ground that during the period in question there was lot of confusion and some of the earlier Tribunal decisions are in favour of the assessee. The issue become clear only with the pronouncement of Larger Bench decision. We also note that the Tribunal, by taking above factors into account has held in number of decisions that longer period would not apply in such situations. Reference in this regards can be made to the following decisions.
(i) M/s. P&B Pharma Limited order No. A/1333/WZB/AHD/2010 Dated 23.08.2011
(ii) M/s. Marsha Pharma Pvt. Ltd 2009 (248) ELT 687 (Tri. Ahd.)
4. In any case, we note that though the plea of limitation was raised before the Commissioner, he has not considered the same and has not dealt with the same. As such, we set aside the impugned order and remand the matter to Commissioner for decision on the point of limitation, in the light of the law declared in above referred judgments.
(Pronounced in the Court : 22.06.2011)
(B.S.V. Murthy) (Archana Wadhwa)
Member (Technical) Member (Judicial)
KL
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