Chandigarh vs (Now M/S Dabur Pharma Ltd.)
- CitationAppeal No.E/2672/2006-EX(DB)
Ratio decidendi
The rule this decision rests on
Duty is not leviable on physician (control) samples that are not sold, have never been cleared from the factory, and are not captively consumed, but are retained in the factory; such samples attract only the requirement that an account of them be maintained in the prescribed form, as laid down by the Larger Bench in the respondent's own case and affirmed by the High Court's dismissal of the Revenue's appeal against it. Where a Larger Bench of the Tribunal has decided an identical issue between the same parties and the High Court has dismissed the Revenue's appeal against that decision, the Division Bench is bound to follow it and cannot interfere with the Commissioner (Appeals)'s order on the same point merely because the Revenue has contrary Tribunal decisions or a further appeal is pending.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of OIA No.442/CE/CHD/2006, dt.30.05.2006, passed by Commissioner of Central Excise & Customs (Appeals), Chandigarh.
Commissioner, Central Excise & Service Tax,
Chandigarh Appellant
Vs
M/s Dabur India Ltd.
(now M/s Dabur Pharma Ltd.) Respondent
Represented by:
For Appellant: Shri A.K. Singh, Authorised Representative
For Respondent: Shri B.L. Narsimhan, Advocate
For approval and signature:
Mr. P.K. Das, Honble Member (Judicial)
Mr. P.S. Pruthi, Honble Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
CORAM:
MR. P.K. DAS, HONBLE MEMBER (JUDICIAL)
MR. P.S. PRUTHI, HONBLE MEMBER (TECHNICAL)
Date of Hearing/Decision:23.01.2015
Final Order No.51098/2015
Per: P.K. Das
1. The issue involved is whether the demand of duty would be sustainable on the Physician Samples (or Control Samples), which are not for sale and they have never been cleared from the factory nor they have been captively consumed in the factory. They are retained in the factory as such.
2. We find that the identical issue in the Respondents own case Larger Bench of the Tribunal in the case of CCE Chandigarh Vs Dabur India Ltd 2005 (182) ELT (Tri-LB) held that no duty should be charged on these samples but account of such samples should be maintained in the prescribed form. It is noticed that the Revenue filed an appeal against the decision of Larger Bench before Honble Himachal Pradesh High Court. By judgment dt.12.05.2010 in CEA No.7 of 2006, the Honble High Court dismissed the appeal filed by the Revenue.
3. The learned Authorised Representative for the Revenue, placed various decisions of the Tribunal. We have noticed that the Larger Bench of the Tribunal, already considered the said decisions. In addition to that, the main contention of the Revenue in the grounds of the appeal that the Larger Bench decision has not been accepted by the Department and the appeal has been filed in the Honble High Court at Shimla, which is pending. We find that Honble High Court already decided this issue in favour of the Respondent and against the Revenue.
4. In view of the discussion, we do not find reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected.
(Dictated & Pronounced in Court)
(P.S. Pruthi) (P.K. Das)
Member (Technical) Member (Judicial)
cbb
3
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free