9911796707
TMI Blog2023 (7) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Act and not under Section 4A therefore, the impugned order is not sustainable. The issue stand settled in view of the above decision - appeal allowed. - EXCISE Appeal No. 10974 of 2014-DB AND EXCISE Appeal No. 13152 of 2014-DB - FINAL ORDER NO. 11453-11454/2023 - Dated:- 7-7-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Yogesh B. Desai, Advocate for the Appellant Shri Prakash Kumar Singh, Superintendent (AR) for the Respondent ORDER A short issue involved in the present case is that whether the medicaments supplied to institutional buyers like Indian Railways, Government Hospitals, BHEL for their exclusive use is subjected to assessment under Section 4 or 4A of the Central Excise Act, 1944. 2. Shri Yogesh B Desai, learned Counsel appearing on behalf of the appellant at the outset submits this issue has been considered in various judgments including the decision in their own case on identical facts and it was held that medicaments supplied to institutional buyers, the assessable value is not governed under Section 4A but the same is governed by Section 4 of the Central Excise Act, 1944 and duty is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. On this identical facts, this tribunal in the case of MEDLEY PHARMACEUTICALS LTD. vide Final Order No. A/11292-11295/2022 dated 26.10.2022, after considering the decision in USV Ltd. Zydus Healthcare Ltd. (supra) passed the following order:- 4. We have carefully considered the submissions made by both the sides and perused the records. We find that as regard the fact of the case there is no dispute that the appellant have supplied Medicament to Government Hospitals and Some Institutional Buyers. In case of such nature of transaction the medicaments are not sold in retail, therefore, retail sale price need not to be affixed. It is the submission of the appellant that they have not affixed retail sale price on such medicament and it is also mentioned on the package of the Medicament that it is not 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all 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 Control) Order, 1995. It is noted that for the purpose of this notification, the retail sale price means the retail sale price displayed the manufacturer under the provision of Drugs (Price Control) Order 1995. The Drug (Price Control) Order 1995 in para 14 and 15 mandates as follows:- 14. Carrying into effect the price fixed or revised by the Government, its display and proof thereof: 1. Every manufacturer or importer shall carry into effect the price of a bulk drug or formulation, as the case may be, as fixed by the Government from time to time, within fifteen days from the date of notification in the Official Gazette or receipt of the order of the Government in this behalf by such manufacturer or importer. 2. Every manufacturer, importer or distributor of a 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, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rint the MRP. The arguments is summarized in para 4.3.40f the impugned order in following words. 4.3.4Now, deliberate on the said DPCO, 1995. I observe that as per its para no. 14(2), every manufacturer of distributor of a formulation intended for sale shall display in indelible print mark, on the label of the container of the formulation and the minimum pack 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 words maximum retail price preceding it and the words inclusive of all taxes succee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the instant case the evidence brought on record does not dispute the claim that the goods sold to institutional buyers were not sold (or offered for sale) in retail sale. In these circumstances, we hold that provisions of para 14 and 15 of DPCO 1995 are not attracted in respect of sales to institutional buyers which are not further offered for retail sale. The demand, therefore, cannot be upheld. The appeals of USV is allowed. The penalties imposed are set aside and consequently the appeals of other appellants are also allowed. The appeal of revenue is dismissed. In view of above, we find that there is no merit in Revenue's allegation that such medicaments which are intended for consumption by the institutional buyers and not intended for retail sale are liable to be assessed under section 4A. Consequently, appeal nos. E/12757/2018 and E/12758/2018 are allowed. 4.1 The Appeal no. E/778/2011 against Zydus Healthcare Ltd. (earlier known as Biochem Pharmaceuticals Industries Ltd.) is dismissed as infructuous as the same was filed against the earlier OIO which was remanded by the Tribunal vide order no. A/10920-10926/2017 dated 09/05/2017. Thus, appeal no. E/778/2011 is d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
