2018 (9) TMI 558

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..... tion 4A is applicable only in a case where the physician sample are not sold and cleared free of cost, which is not the case here. The duty should have been paid under section 4 - the differential duty is rightly refundable in accordance with the law - Appeal dismissed - decided against Revenue.
Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) For the appellant: Shri J.K. Kinariwala, Dy. Commr (AR) For the respondent: None ORDER Per: Ramesh Nair The brief facts of the case are that the appellants have sold the physician sample to the brand owner and paid the duty on applying the value under the provision of section 4 A of Central Excise Act 1944. Later on they filed the refund claim on the ground that the duty .....

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..... oduced below: "9. I have examined the matter. I find that the show cause notice proceeds on the assumption that the physician samples manufactures by the appellants are covered by the Standards of Weights & Measures Act, 1976, and the Packaged Commodities Rules, 1977, to attract assessment on MRP basis. The appellants have contested this. I find that medicines are covered by DPCO, 1995 and as per rule 34(e) of the Packaged Commodities Rules, 1977, goods covered under the DPCO, 1995 are exempt from the provisions of Packages Commodities Rules, 1977. But as per the DPCO, 1995 issued under the Essential Commodities Act, 1956, the appellants still have to comply with the requirements of the declaration of retail sale price as required under th .....

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..... o need to go to section 4(1)(b) to invoke the Valuation Rules. 12. Further, CESTAT, Ahmedabad, in the case of CCE, Daman vs Sidmak Laboratories (India) P Ltd. reported in 2009(242) ELT255 (Tri-Ahmd), has held that when physician samples are sold in wholesale, duty will have to be charged on the 'transaction value'. It has been rightly pointed that the Boards Circular dated 19.02.2010 does not cover such case. 13. There is a casual mention of section 12B in the SCN implying thereby that the refund is also hit by the bar of unjust enrichment. The adjudication Order also does not dwell much upon this aspect, probably because the refund was rejected on merit itself. This aspect needs to be gone into by the Asst. Commr. in details. 14. In .....

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