2009 (6) TMI 315 - AT - Central Excise

Eligibility for exemption on the physician samples under Notification No. 48/77-C.E. dated 1-4-1977 revenue contend that there is no difference between trade packing and physician samples and therefore as per 3rd proviso to Notification No. 48/77-C.E the respondents are not eligible for the benefit of Notification No. 48/77-C.E. dated 1-4-77 It appears that no enquiry was made at this regard that the clinical samples of their product were cleared without payment of duty. - We do not find any material or statement that packing of physician samples and trade packing were same. There is no dispute that the packing of the physician samples were mentioned Physician samples not to be sold . We find the Commissioner after examining the evidences observed that the samples are distinctly different dropped the proceeding. - We do not find any infirmity in the order of the Commissioner. Accordingly the appeal filed by Revenue is rejected.

Summary

Issues:
- Appeal against the order of Commissioner of Central Excise, Indore regarding exemption on physician samples under Notification No. 48/77-C.E.
- Eligibility for exemption based on distinction between trade packing and physician samples.
- Permissibility of new evidence in appeal stage.
- Commissioner's findings on the distinction between physician samples and trade packing.
- Comparison with a previous Tribunal case regarding the distinction between trade packs and clinical samples.

Analysis:
The appeal was filed by Revenue against the order of the Commissioner of Central Excise, Indore, where it was held that the respondents are eligible for exemption on physician samples under Notification No. 48/77-C.E. The main contention was whether the physician samples were packed in a form distinctly different from regular trade packing as required by the notification. The Revenue argued that there was no distinction based on the photocopies of the samples provided, and the evidence submitted did not support the claim for exemption. The Tribunal noted the Revenue's reliance on a previous case and the submission of original packing samples during the proceedings.

The respondent, represented by an Advocate, reiterated the findings of the Commissioner, arguing that the appeal based on new evidence was impermissible at the appeal stage. They contended that the evidence regarding the packing of physician samples and trade packing was presented before the Commissioner, leading to the proceedings being dropped. The Commissioner's decision was based on the distinct difference observed in the packing of physician samples compared to regular trade packing, as clearly marked on the samples.

After hearing both parties, the Tribunal examined the Commissioner's findings, which highlighted the distinct difference in packing observed during the proceedings. The Tribunal noted that the Commissioner's examination of the samples showed the physician samples were clearly marked as not for sale, indicating a difference from regular trade packing. The Tribunal compared this case with a previous Tribunal decision where the distinction was found challenging due to identical glass bottles and cartons. However, in the present case, the Commissioner found the physician samples distinctly different, leading to the dropping of proceedings.

Ultimately, the Tribunal found no fault in the Commissioner's order and rejected the appeal filed by Revenue, upholding the decision regarding the eligibility for exemption on physician samples under Notification No. 48/77-C.E. The analysis emphasized the importance of the distinct marking and packaging of physician samples compared to regular trade packing to qualify for the exemption.