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TMI Blog2024 (8) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... - CESTAT AHMEDABAD] where it was held that ' When we find that price was charged by the assessee from the distributors, the show cause notice is clearly founded on a wrong reason. The case would squarely be covered under the provisions of Section 4(1)(a) of the Act. In view thereof, the Central Excise Rules would not apply in the instant case.' In view of the above decision of this Tribunal along with other orders of this Tribunal, the issue stand settled in the appellant s case. Accordingly the demand is not sustainable hence the impugned orders are set-aside - appeal allowed. - HON BLE MR. RAMESH NAIR , MEMBER ( JUDICIAL ) And HON BLE MR. C. L. MAHAR , MEMBER ( TECHNICAL ) Ms. Nidhi Nawal , Advocate for the Appellant Shri Anoop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sides and perused the record. We find that the issue in brief in the present appeal to be decided is the physician Sample which is sold to distributor for further distribution free of cost to the physicians and doctors, whether the value of such goods should be governed by Section 4A or Section 4. We find that the appellant have manufactured and cleared the goods i.e. Physician sample mentioning clearly on the pack that it is not for sale. Since the goods is not for sale and no MRP is affixed on the product, the goods cannot be valued under Section 4A as the same is not for retail sale. Accordingly, the correct provision for valuation of physician sample is section 4, where the Excise duty is payable on the transaction value. This issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, in our opinion, has gone beyond the Show Cause Notice and on this ground alone, the judgment of the CESTAT dated 27-2-2009, which is the subject matter of Civil Appeal No. 3263 of 2009, warrants to be set aside. Civil Appeal No. 3263 of 2009 is, accordingly, allowed. 7. We now advert to the central issue, viz., whether provisions of Section 4(1)(a) of the Act are applicable or not. 8. Section 4 reads as under :- Section 4. Valuation of excisable goods for purposes of charging of duty of excise. - (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall (a) in a case where the goods are sold by the assessee, for delivery at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny other place or premises of production or manufacture of the excisable goods; (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty; (iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory; from where such goods are removed; (cc) time of removal , in respect of the excisable goods removed from the place of removal referred to in sub-clause (iii) of clause (c), shall be deemed to be the time at which such goods are cleared from the factory; (d) transaction value means the price actually paid or payable for the goods, when sold, and includes in addition t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant consideration to determine the valuation of excisable goods. When we find that price was charged by the assessee from the distributors, the show cause notice is clearly founded on a wrong reason. The case would squarely be covered under the provisions of Section 4(1)(a) of the Act. In view thereof, the Central Excise Rules would not apply in the instant case. 11. As a result, we are of the opinion that the decision dated 10-11-2006 rendered by the CESTAT depicts the correct position of law and rightly holds that the case would be covered by the provisions of Section 4(1)(a) of the Act and in view thereof Rule 6(b)(ii) of the Rules would not apply. Resultantly, Civil Appeal Nos. 3742- 3744 of 2007 of the Revenue fail and are hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X
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