2011 (6) TMI 634 - AT - Central Excise

Assessable value - contract manufacturer jobworker - clearance of physician samples - assessable value of physician samples was lower than the assessable value of the same medicaments cleared in trade packs. In that case the appellants were not clearing physician samples for free distribution to the Doctors but are selling to other companies at an agreed price as per the purchase order placed on them Held that - in the case of contract price the appellants have rightly assessed these physician samples which were cleared by them free of cost at the time of clearance on a transaction value on principal to principal basis and in case of jobwork these physician samples have been cleared on cost construction method i.e. CAS-4 transaction value/CAS 4 value are the correct value arrived at by the appellants requirement of pre-deposit of duty interest waived Stay applications are allowed

Summary

Issues:
- Appeal against demand of duty on under valuation of physician samples
- Dispute over discharging duty on physician samples based on Section 4A or transaction value/CAS 4
- Challenge of stay order before High Court
- Applicability of Section 4A to physician samples
- Comparison with relevant case laws

Analysis:
1. The appellants appealed against the demand of duty due to alleged under valuation of physician samples. The issue revolved around whether duty should be paid on physician samples based on Section 4A or transaction value/CAS 4. Stay applications were initially disposed of, requiring a pre-deposit of Rs. 15,00,000, which was challenged before the High Court, leading to a fresh disposal of the stay applications.

2. The case involved the appellants, contract manufacturers of P & P medicaments, clearing goods as trade packs and physician samples. The dispute arose when the department observed that duty on physician samples was not being discharged as per Section 4A, leading to show-cause notices, confirmed demands, interest, and penalties. The appellants contended that they were discharging duty correctly based on contract agreements and not required to follow Section 4A for physician samples.

3. Both sides were heard, with the appellants arguing that they followed contract agreements for duty payment, while the department relied on precedents like the Indian Drugs Manufacturer's Association case. The department emphasized that physician samples should be valued as per Section 4A, citing earlier tribunal decisions and Supreme Court rulings.

4. Upon examination, it was found that the appellants cleared physician samples on a transaction value/CAS 4 basis to buyers, not for free distribution. The facts of previous cases cited by the department differed from the present case, making those precedents inapplicable. The Tribunal referred to the Themis Laboratories and Meghdoot Chemicals cases, where similar practices were upheld, leading to the waiver of pre-deposit and granting of stay in favor of the appellants.

5. The Tribunal concluded that the appellants had a strong prima facie case in their favor, as their valuation method for physician samples was deemed correct based on transaction value/CAS 4. Therefore, the requirement of pre-deposit of duty, interest, and penalties was waived, and the stay applications were allowed. The appeal was decided in favor of the appellants based on the specific circumstances and legal interpretations presented during the proceedings.