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TMI Blog2022 (11) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly, Show Cause Notices issued for the period +from June 2006 to October, 2010, for demand recovery of short payment of duty under Section 11A of Central Excise Act, 1944, along with interest under Section 11B of Central Excise Act, 1944, and also proposed imposition of penalty under Rule 25 of Central Excise Rules, 2002 read with Section 11 AC of Central Excise Act, 1944. The duty along with interest was confirmed in the order in original and also imposed penalty under Rule 25 of Central Excise Rules, 2002 read with section 11AC. Being aggrieved by the orders in original, the appellant filed the appeals before the Commissioner (Appeals) who upheld the order in original and rejected the appeals. Therefore, the present appeals. 2. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot for a retail sale" and it is for use by Government Hospitals and Some Institutional Buyers. In this fact the medicaments are not sold in retail and the retail sale price need not to be affixed. Consequently, the valuation of the said goods cannot be insisted upon under Section 4A of Central Excise Act, 1944. We find that this bench in the following judgment under the same set of facts held that valuation of Medicament Supplied to Government Hospitals/ Institutional Buyers shall be governed by Section 4 and not Section 4A. The decision in the case of Zydus Healthcare Ltd, wherein the decision of M/s. USV Ltd was considered is reproduced below: "4. We have carefully considered the rival submission. We find that the issue involved in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the corresponding entry in column (4) of the said Table:- TABLES. No. Chapter or Heading No. or Sub-heading No. Description Abatement as a percentage of retail sale price(1)(2)(3)(4)1.3003. 10Patent or proprietary medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Biochemic35%2.3003. 20Medicaments (other than patent or proprietary) other than those which are exclusively used in Ayurvedic, Unani, Siddha, Homoeopathic or Biochemic systems35% This notification2. shall come into force on the 8th day of January, 2005.Explanation. -For the purposes of this notification, "retail sale price" means the retail price displayed by the manufacturer under the provisions of the Drugs (Prices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of prices of non-Scheduled formulations and price list thereof: 1. Every manufacturer, importer or distributor of a non-Scheduled formulation intended for sale shall display in indelible print mark, on the label of container of the formulation and the minimum pack thereof offered for retail sale, the retail price of that formulation with the words "retail price not to exceed" preceding it "local taxes extra" succeeding it, and the words "Not under Price Control" on a green strip: Provided that in the case of a container consisting of smaller saleable packs, the retail price of such smaller pack shall also be displayed on the label of each smaller pack and such price shall not be more than the pro-rata retail price of the main pack ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there offered for retail sale", the retail price of that formulation, notified in the official Gazette or referred to by the Govt. in this regard, with the words retail price not to exceed" similar type of provisions have also been made in the para 15(1) of the said order in respect of non-scheduled formulations the only difference being that the words retail price not to exceed" preceding it. And local taxes extra" succeeding it, in the case of scheduled formulations. Similar type of provisions have also been made in the para no. 15 (1) of the said order in respect of non-scheduled formulations, the only difference being that the words retail price not to exceed" preceding it, and local taxes extra" succeeding it, have been replaced by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold to dealers/ distributors the provision of DPCO 1995 get attracted. It is seen that the DPCO 1995 mandates, printing of retail sale price" on containers" as well as on minimum pack thereof offered for retail sale". From above it is apparent that what is covered in DPCO is only the items which are sold in retail. If a container is sold in retail, the container must contain retail sale price and if the content of such container are also sold in retail then each such pack sold in retail must have the MRP printed on it. From above it is apparent that the provisions are attracted only on goods offered for retail sale". In the impugned order, it is seen that the words offered for retail sale" appearing in DPCO 1995 have been overlooked. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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