1997 (12) TMI 257 - AT - Central Excise

Summary

Issues:
- Appeal against the order of Collector of Central Excise (Appeals), Allahabad dated 14-1-1991
- Availing exemption of duty under Notification No. 48/77 for Patent and Proprietary Medicines
- Allegations of evasion of duty by not fulfilling conditions of the notification
- Interpretation of "distinctly different packing from the regular trade packing"
- Compliance with the conditions of the notification for physician samples
- Comparison with previous Tribunal orders

Analysis:
The appeal was made against the Collector of Central Excise (Appeals) Allahabad's order concerning the exemption of duty under Notification No. 48/77 for Patent and Proprietary Medicines. The appellant alleged that the respondent, a manufacturer of such medicines, did not fulfill the conditions of the notification, specifically Clause (iii) of the first proviso, to evade duty payment. The issue revolved around the distinctiveness of the packing of physician samples from regular trade packing to qualify for the exemption. The appellant argued that the samples were not distinctly different, as evidenced by the similarity in size of phials and minor differences in content quantity. Reference was made to a previous Tribunal order for relevance to the case.

The respondent's counsel contended that there was no deviation from the notification's directions regarding physician samples. They emphasized that the samples were intended for free distribution to hospitals, nursing homes, and medical practitioners, which was being done through a sale promoter as per a registered contract. The counsel argued that the packing of the samples was in line with the notification's spirit and provisions, with no contravention. They highlighted the interpretation of "distinctly different packing" to mean differentiation in contents rather than external features like labels or colors. The respondent stressed the importance of maintaining the originality of the samples for customer recognition and prevention of selling them in the market.

The Tribunal considered the submissions from both parties and referenced a previous Tribunal order regarding the distinctiveness of physician samples for exemption under Notification 48/77. It was noted that minor differences from normal trade packing were not sufficient to qualify as clinical samples for exemption. The Tribunal agreed that in the present case, the differences in quantity and absence of price indication did not make the samples distinctly different from trade packing. Merely mentioning the claim for the exemption in the classification list was deemed insufficient. The Tribunal ruled in favor of the appellant, emphasizing that even if the samples were distributed as claimed, they would not qualify for exemption due to non-compliance with the basic eligibility condition.

In conclusion, the Tribunal upheld the appeal based on the non-compliance with the conditions of Notification 48/77 for physician samples. The decision was influenced by the interpretation of "distinctly different packing" and the lack of evidence supporting the free distribution of samples to eligible entities as required by the notification. The ruling aligned with previous Tribunal orders and emphasized the importance of meeting the eligibility criteria for duty exemption.