2018 (11) TMI 1380 - AT - Central Excise

Valuation - MRP based valuation or not - demand of duty on MRP basis on physician samples manufactured by the appellant on job work basis for other parties - imposition of penalties - Held that - The issue is squarely covered by the decision of Tribunal in the case of SOFTSULE Pvt. Ltd 2018 (6) TMI 985 - CESTAT MUMBAI , where it was held that demand cannot be raised on the basis of MRP on such medicine - demand set aside - appeal allowed - decided in favor of appellant.

Summary

Issues: Confirmation of demand of duty on physician samples and imposition of penalties.

Analysis:
1. The appeals were filed against the confirmation of demand of Excise Duty on physician samples manufactured by the appellant on a job work basis for other parties, which were disputed to be distributed free of cost to doctors, etc.

2. The Revenue had demanded Excise Duty on the Maximum Retail Price (MRP) basis, which was challenged by the appellants. The Tribunal referred to the decision in the case of SOFTSULE Pvt. Ltd. and the observations of the Hon'ble Apex Court in the case of Sun Pharmaceuticals Industries Ltd., emphasizing that the transaction value between the assessee and distributors should be considered for valuation under Section 4(1)(a) of the Central Excise Act, 1944. Thus, the demand of duty based on MRP was deemed unsustainable.

3. Additionally, the Tribunal cited the case of Omni Protech Drugs Pvt. Ltd. Vs. Commissioner of Central Excise, Pune-I, where it was clarified that physician samples manufactured on a job work basis for others should be cleared based on the transaction value arrived at after including the cost of raw materials and job charges, as per the decision of the Hon'ble Apex Court in the case of Ujagar Prints. This approach was distinguished from cases where manufacturers themselves distributed physician samples free of cost, leading to valuation based on MRP under Section 4A of the Act.

4. The Tribunal concluded that the appellants correctly valued the physician samples based on the cost of raw material inputs and job charges when clearing them to the brand owner on a principal-to-principal basis. Following the precedent set by Themis Laboratories Pvt. Ltd., it was held that the assessable value of physician samples manufactured on a job work basis for distribution free of cost should be determined in accordance with the decision in the case of Ujagar Prints, rejecting the demand based on MRP.

5. Consequently, the appeals of M/s Vapi Organic Chemicals Pvt. Ltd., Shri RK Parmar, and Shri HG Patel were allowed, setting aside the demand and penalties imposed.

6. The judgment was pronounced on 26.11.2018 by Member (Technical) Mr. Raju, in favor of the appellants.