9911796707
TMI Blog2009 (9) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... of medicaments and have been availing Cenvat credit on inputs under Rule 3 of the Cenvat Credit Rules, 2002 in respect of medicaments manufactured on loan license for others. They are also manufacturing and clearing physician samples on behalf of the said loan licensee which are meant for free distribution to the physicians. 3. As per the Board s Circular No. 643/34/2002-CX dated 01.07.2002 issued under F.No. 6/39/2000-CXI, the valuation of samples, which were distributed free, as part of marketing strategy or as gift or donations, was to be done as 115% of the cost of production. The Board had amended the above Circular vide Circular No. 813/10/2005-CX dated 25.04.2005, issued under F.No. 209/30/2003-CX-6 wherein the valuations of samp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learances of physician samples for the period 25.04.2005 to 31.08.2006. The differential duty was worked out and it was held that the respondent has willfully suppressed the facts from the knowledge of the department, that they were paying duty on the basis of cost construction method and were not paying on the basis of value arrived at as per Rule 4 of Valuation Rules, 2000 with an intention to under value the products and thereby to pay less Central Excise duty. A duty demand was confirmed along with interest and equivalent amount of penalty under Rule 11A of Central Excise Act, 1944. 6. On appeal, the Commissioner (A) has confirmed the demand but penalty was waived against the respondent. Aggrieved by the same the Revenue is in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w my attention on the findings of the Adjudicating Authority wherein it was held that the assessee failed to comply with the CBEC s Circular and the assessee were aware of CBEC s Circular and with mis-intention did not pay duty as per the said circular and penalty was imposed. He further placed reliance on CCE C, Aurangabad vs. Wockhardt Ltd. 2009 - TIOL-1308-CESTAT-MUM wherein on the identical facts this Tribunal has held that Section 11AC is not applicable where there is no finding of mens rea against the assessee. He further placed reliance on CCE, C ST, Nasik vs. Jyoti Structures Ltd. 2009-TIOL-1159-CESTAT-MUM wherein it was held that wrongly availed exemption notification no mens rea proved by the Revenue no cause for imposition o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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