Full Judgment
The second condition was that sample should be packed in a form distinctly different from regular trade packing, and that it should be clearly and conspicuously marked as "Samples not be sold". The assessees were clearing and/or retaining such samples in terms of this notification, the benefit of which they had claimed in the various classification lists, filed from time to time. Show Cause Notice dated 5-4-1994 alleged that samples cleared from April, 1989 to December, 1992 did not benefit from this notification because they were cleared in normal packing. On this ground duty amounting to Rs. 7,873/- was demanded. The Collector after hearing the assessees confirmed the demand but did not choose to impose a penalty. The appeal is against this order.
4. Before the Collector the assessees had claimed that samples were packed in a form different from trade packing and that they were marked as "samples not to be sold". The Collector's findings against the assessees occurred in paragraph 9 of his order says as follows : "9. I note from the records that the assessee filed classification to the department claiming exemption on quality control samples under Notification No. 171/70-C.E., dated 21-11-1970. In the said classification list they have declared the quality control samples packs as 4 tablets each of Metacin and Emycin packs 250 tablets.
However on perusal of such sample available in records I note that it is packed with 10 tablets whereas regular trade pack of same product is also packed with 10 tablets. Thus, it proves on records that the assessee have not followed the conditions (2) of the Notification No. 171/70-C.E., dated 21-11-1970." We have seen the classification lists kept on record. The lists showed that Metacin tablets were packed for sale, in packets of 10 tablets as well as of 4 tablets. After describing the various packings, the final entry in the classification lists was "quality control samples of all above products for laboratory purposes as per drug rules." Against this entry the benefit of the cited notification was claimed.
6. On reading the classification lists it becomes clear that the Collector had not read the lists in their entirety and had proceeded to decide the issue on one sample packing.
7. In the impugned judgment it was nowhere brought out that the samples were not stamped with the legend that they were not to be sold. The assessees have also relied upon the Tribunal judgment in the case of Bezal Pharma v. C.C.E., Mumbai -1998 (103) E.L.T. 449 (Tribunal). In the judgment it was also held that even if the samples were not packed in different packages but where they were retained in the factory, the benefit of the Notification was still available. From the proceedings below we get no idea as to how many of the samples were retained and how many were cleared. But in view of the findings above we hold that the Collector failed to establish the department's case. We, therefore, allow the appeal with consequential benefit.