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TMI Blog1987 (7) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... th Section 11A(1) of the Central Excises and Salt Act, 1944 and why penalty should not be imposed on them under Rules 9(2) and 173-Q of the Central Excise Rules, 1944. The charge against the appellants was that they cleared clinical samples of P or P-Medicines falling under Item 14-E of the Central Excise Tariff without observing the conditions prescribed in Notification No. 48/77-C.E., dated 1-4-1977. According to condition No. 3 of the said Notification, the clinical samples should be packed in a form distinctly different from regular trade packing and each smallest packing should be clearly and conspicuously marked Physician s sample, not to be sold . It was alleged that the appellants did not satisfy this condition of the Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that samples should be packed in a form distinctly different from regular trade packing. After inspecting samples of trade packings and clinical samples in respect of these three medicines, he has observed that it would be difficult to distinguish the trade packs from the clinical samples and hence clinical samples were not entitled to the exemption under Notification as the clinical samples were not packed in a form distinctly different from regular trade packing. Accordingly he has held that duty was payable on the clinical samples cleared by the appellants in respect of these three medicines. He has also held that information furnished in the classification lists claiming exemption under Notification No. 48/77-C.E. did not reflect det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise obtained samples in 1981, but the show cause notice was issued after one year of the submissions of the samples to him. Longer time-limit of five years was not applicable and demand for duty should be confined to six months as prescribed under Rule 10 of the Central Excise Rules and Section 11-A of the Central Excises and Salt Act, 1944. In support of his contention, learned Consultant has relied on this Tribunal s decisions reported in 1986(23) E.L.T. 205 in the case of Tata Iron Steel Co. Ltd., Jamshedpur v. Collector of Central Excise, Patna and 1986(24) E.L.T. 345 in the case of Indian Explosives Ltd., Calcutta v. Collector of Central Excise, Patna. On merits of the case, the learned Consultant has stated that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and one is not to strain his eyes to read the printed, price and quantity on the packing and then find out the minor difference in the printing of the samples. The difference between the two packs should be distinctly clear from the very form of packings. Minor difference in the printing like price or quantity is no doubt some difference, but it does not amount to a distinctly different form within the meaning of the Notification. 5. During the hearing before us, the learned Consultant for the appellants submitted two sets of samples of Cemizol Vet and Vitamin C Drops Sukcee. The samples of Cemizol Vet are in bottles, and it was not urged that the bottles are not packing within the meaning of the Notification. Each set consists of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order, but he has held that the sample pack is not distinctly different in form from the trade pack. The appellants have not produced any evidence before us to establish that the forms of two packings, trade and sample, are distinctly different from each other in respect of this medicine. In the absence of any such evidence we are unable to hold a view different from that held by the Collector. We are of the view that the marking Physician s sample, not to be sold with extra white lines on top and bottom does not make the sample pack distinctly different from the trade pack. In the circumstances, we hold that the benefit of exemption under the Notification No. 48/77-C.E. is not admissible in respect of this medicine also. 7. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Notification in respect of the samples and the classification lists were approved. They also filed RT-12 Returns with Gate Passes and no objection was raised thereon. Samples were called for by the Assistant Collector on 30-6-1981 but the show cause notice demanding duty was issued on 10-8-1982, i.e., after more than one year. The appellants were not expected to furnish more details in the classification lists. They declared .the Physician s samples, and claimed the exemption under the Notification No. 48/77-C.E. The proper officer could verify the facts by inspection of the samples in time. Having failed to do so the appellants cannot be charged for clandestine removal or suppression of facts or wilful mis-statement, when they filed c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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