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i) CEBEXIN: Sample packs and commercial packs are put in identical glass bottles and in identical cartons. However, in the clinical sample there is a marking "Physician's sample, not to be sold", with extra white lines on the top and bottom. Sample packs do not indicate the number of tablets it contains, while in the case of trade pack, there is an indication that it contains 50 tablets.

(ii) SUKCEE DROPS: The sample pack bears the marking "Physician's sample, not to be sold". The trade pack contains an indication of the retail price, whereas no such price is marked on the sample pack. There is no other difference between the two forms of packings.

"Samples should be packed in a form distinctly different from regular trade packing and each smallest packing is clearly and conspicuously marked "Physician's samples not to be sold."

As per this condition, the form of packing of the samples should be distinctly different from the packing of the regular trade packs in addition to the clear and conspicuous marking "Physician's samples, not to be sold." It will not suffice if such marking only is there on the packing of the samples. The intention is that the packing of the samples should be such that on looking at the sample pack it can be easily distinguished from the trade packings and one is not to strain his eyes to read the printed price and quantity on the packing and then find out the minor difference in the printing of the samples. The difference between the two packs should be distinctly clear from the very form of packings. Minor difference in the printing like price or quantity is no doubt some difference, but it does not amount to a "distinctly different form" within' the meaning of the Notification.

5. During the hearing before us, the learned Consultant for the appellants submitted two sets of samples of Cemizol Vet and Vitamin C Drops Sukcee. The samples of Cemizol Vet are in bottles and it was not urged that the bottles are not packing within the meaning of the Notification. Each set consists of one sample pack and one trade pack. On a minute comparison of the two packings of Cemizol Vet we find no difference between the two except that the Physician's sample pack contains the marking "PHYSICIAN'S SAMPLE, NOT FOR SALE". Similarly, on a minute comparison of the two packs of Vitamin C Drops Sukcee, we find that the sample pack bears the marking "PHYSICIAN'S SAMPLE, NOT FOR SALE". Retail price is printed on the trade pack of Sukcee Drops, but no price is printed on the sample pack of this medicine. Except the above difference, there is no difference in the form of packing of trade pack and sample pack of Cemizol Vet and Sukcee Drops. As the packing of the sample packs is not distinctly different in form from the packing of trade packs in respect of these two medicines, the condition of the Notification is not fulfilled and as a result the benefit of the exemption as per Notification No. 48/77-CE is not admissible in respect of these two medicines.

8. Duty is, therefore, payable by the appellants on the samples of Cemizol Vet, Sukcee Drops and Cebexin, but the demand for duty on the past clearances of these samples should be limited to the statutory period of six months as laid down in Rule 10 of the Central Excise Rules and Section 11-A of the Central Excises and Salt Act, 1944. The longer time limit of 5 years for raising demand for duty cannot be invoked in this case as there was no clandestine removal of the sample packs nor any suppression or wilful mis-statement of facts by the appellants is proved. They filed classification lists claiming the benefit of exemption Notification in respect of the samples and the classification lists were approved. They also filed RT-12 Returns with Gate Passes and no objection was raised thereon. Samples were called for by the Assistant Collector on 30-6-1981, but the show cause notice demanding duty was issued on 10-8-1982, i.e., after more than one year. The appellants were not expected to furnish more details in the classification lists. They declared the Physician's samples, and claimed the exemption under the Notification No. *8/77-CE. The proper officer could verify the facts by inspection of the samples in time. Having failed to do so, the appellants cannot be charged for clandestine removal or suppression of facts, or wilful mis-statement, when they filed classification lists and R.T.-12 Returns regularly and the same were approved. They were not expected to give more details-in the above documents as they were under the belief that they satisfied the condition of Notification by marking the sample packs with the words "Physician's samples, not for sale" although such belief was not correct.