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TMI Blog2014 (10) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of the said case were completely different and distinguishable. In that case, the goods under clearance were diagnostic regent kits and diagnostic reagent strips falling under the purview of Drugs and Cosmetics Act, 1940. Drugs samples were cleared without any packages and therefore, it was held that since there was a statutory requirement of packaging, which has not been complied with, it cannot not be held that the goods are marketable. In the case before us there is no mandatory or statutory requirement of packaging of the goods and therefore, the ratio of the said decision cannot apply. We uphold the confirmation of duty demand and consequently, the appellant also would be liable to pay interest on the duty demand confirmed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omers. 4. The learned Counsel submits that the goods cleared by the appellants were only samples for testing the market potentiality and are not marketable goods as such and therefore, in the absence of evidence led by the Revenue showing that they are marketable goods, the impugned demands are not sustainable. Reliance is placed on the decision of this Tribunal in the case of Bayer Diagnostics India Ltd., Vs. CCE Vadodara - 2001 (133) ELT 140 (Tri-Mumbai) in support of his contention. Alternatively, it is argued that inasmuch as the appellant had discharged the excise duty liability before issue of show-cause notice. The question of issue of a notice and imposing penalties does not arise at all and therefore, he pleads for setting aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it cannot not be held that the goods are marketable. In the case before us there is no mandatory or statutory requirement of packaging of the goods and therefore, the ratio of the said decision cannot apply. 6.2 In view of the above, we uphold the confirmation of duty demand and consequently, the appellant also would be liable to pay interest on the duty demand confirmed. As regards the penalty imposed on the appellant, Section 11A (2B) provides for non-issue of a show-cause notice in case the duty demand is paid before the issue of show-cause notice. In the present case the appellant has fulfilled this condition and therefore, the question of imposition of penalty under Section 11AC would not arise at all. Accordingly, we set aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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