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TMI Blog2015 (8) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... medicaments falling under Chapter 30 of the First Schedule of Central Excise Tariff Act, 1985, under Rule 4 of the Central Excise Valuation Rules, 2000 and rule out their valuation under Rule 11 read with Rule 8 of the Central Excise Valuation Rules, 2000 consequent upon the above findings. (ii) I confirm the demand of Rs. 7,92,529/- (Rupees seven lakhs ninety two thousand five hundred and twenty nine only) on M/s. Orchid Healthcare - Unit II under sub-section (2) of Section 11A of the Central Excise Act,1 944 read with sub-section (1) of Section 11A of the Central Excise Act, 1944. (iii) I appropriate the amount of Rs. 7,92,529/- (Rupees seven lakhs ninety two thousand five hundred and twenty nine only) paid by M/s. Orchid Healthcare - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds for the period prior to 1.8.2008 and the Commissioner has confirmed differential duty only for the normal period of limitation. While doing so, the Commissioner has also imposed penalty of Rs. 7,92,529/- under Rule 25 and dropped the penal proceedings under Section 11AC of Central Excise Act, 1944. The learned counsel has relied on the decision of the Hon'ble High Court of Gujarat in the case of Commissioner of Central Excise & Customs Vs. Saurashtra Cement Ltd. - 2010 (260) ELT 71 (Guj.) wherein the Hon'ble High Court has observed as under:- "15. For appreciating the controversy between the department and assessee, it is necessary to have a close look at the relevant provisions of Central Excise Act as well as Rules. The dispute cente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (C) or clause (d). The Tribunal found that clause (a) of Rule 25 refers to removal of excisable goods in contravention of any of the provisions of the Rules. When goods were removed, no excise duty was required to be paid at that point of time. As such, it cannot be said that the contravention of the nature mentioned in the said clause has been committed by the assessee. Clause (b) is to the effect that the manufacturer does not account for any excisable goods manufactured by him. The said clause does not stand contravened inasmuch as the goods were duly reflected in the statutory records. Similarly, clause (c) does not stands contravened inasmuch as the assessee has not manufactured goods without applying for registration. Clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion or any willful misstatement or suppression of facts. If these ingredients are not present, penalty under Section 11AC cannot be levied. Since Rule 25 can be invoked subject to the provisions of Section 11AC of the Act, as a natural corollary, the ingredients mentioned in Section 11AC are also required to be considered while determining the question of levying of penalty under Rule 25 of the Central Excise Rules." 4. He has also relied on the decision of the Hon'ble High Court of Madhya Pradesh in the case of Shree Ashok Kumar Manibhai Patel & Co. Vs. CCE, Bhopal - 2015 (317) ELT 431 (MP). The learned counsel reiterated that in view of the decision of the Hon'ble High Courts and also in view of the findings of the adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CE, Ahmedabad - 2008 (232) ELT 245 (Tri. - LB). 6. After hearing both sides and on perusal of the records, I find that the appellant-assessee was paying excise duty on cost construction method ever since they started clearing physician samples of P&P medicines and there was no provision in ER-I return to provide such information. The appellants have maintained that there is no intention on their part to evade central excise duty inasmuch as physician samples have been cleared on payment of duty. The Adjudicating Authority has himself dropped the penalty under section 11AC and also under Rule 25 for the extended period, as there is no malafide intention or suppression of facts considering the fact that the appellants have already paid the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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