2018 (3) TMI 396 - AT - Central Excise

Refund of duty paid by their job worker on physician s sample - Section 4A of the CEA - Held that - the issue is no more res integra. Hon ble Apex Court in the case of Sun Pharmaceutical Inds. Ltd. 2008 (9) TMI 992 - CESTAT AHMEDABAD , where it was held that lower assessable value of sample packs does not hold any merit to allege undervaluation with an intent to evade Central Excise duty and calculation of value of sample packs on pro rata basis is not supported by law. Matter is remanded to the original adjudicating authority to decide following the decision of the Hon ble Apex Court in Sun Pharmaceutical Inds. Ltd. - appeal allowed by way of remand.

Summary

Issues:
1. Refund of duty paid by job worker on physician's sample.
2. Assessment of duty under Section 4(1)(a) of the Central Excise Act.

Analysis:
Issue 1: The appeal was filed against the Commissioner (Appeals) order remanding the matter related to the refund of duty paid by the job worker on physician's sample. The appellants received physician's samples from Golden Pharmaceuticals and paid differential duty based on Section 4A prices of the medicine. They claimed they were not liable to pay duty on a pro rata basis and filed refund claims, which were rejected by the Asst. Commissioner. The Commissioner (Appeals) concluded that the assessable value should be determined under Rule 4(1)(b) and remanded the matter. The Tribunal found merit in the appeal based on the decision of the Hon'ble Apex Court in Sun Pharmaceutical Inds. Ltd. and set aside the impugned order, remanding the matter for a decision following the said decision.

Issue 2: The argument presented was that the physician's sample was manufactured by a job worker, Golden Pharmaceuticals, and the transaction value was available, thus the assessment should be done under Section 4(1)(a) of the Central Excise Act. The Tribunal referred to the decision of the Hon'ble Apex Court in the case of Sun Pharmaceutical Inds. Ltd. and upheld the Tribunal's decision in a similar matter involving the same appellants. The Tribunal observed that the assessable value in respect of physician samples should be adopted under Section 4(1)(a) unless found incorrect and impugned. The Tribunal set aside the impugned order and allowed all appeals with consequential relief to the appellants, following the decision in Sun Pharmaceutical Inds. Ltd.

In conclusion, the Tribunal allowed the appeal, setting aside the Commissioner (Appeals) order and remanding the matter for a decision in accordance with the decision of the Hon'ble Apex Court in Sun Pharmaceutical Inds. Ltd.