Judgment:
1. According to the applicants herein, a mistake apparent from the face of the record arises in Tribunal's Final Order Nos. A/1076 to 1085/WZB/2005/C-I, dated 2-9-2005 insofar as it relates to Appeal Nos.
E/1821/99, E/1273/2004 and E/3657/2004 which are the three out of the ten appeals disposed of by the above mentioned common order.
2. It is submitted that in Appeal E/1821/1999, the plea that trade discount and quantity discount has to be given even while determining the assessable value of physicians' samples on pro rata basis of the trade packs, has not been considered. In appeal E/1273/2004, it is the contention of the applicants that no finding has been recorded on the contention that the demand of duty for the period from 1998-99 to 30-11-1999 (the period involved in this appeal is 1998-99 to 1999-2000) is barred by limitation in view of the fact that the applicants were filing price declarations with respect to commercial packs (trade packs) as well as physicians' samples, as required under the provisions of Rule 173C of the Central Excise Rules, 1944. It is their further contention that no finding has been recorded on the submission that interest under Section 11AB and penalty under Section 11 AC imposed upon them cannot be sustained, as the ingredients of these provisions are absent as there was no suppression and it was only a valuation issue. In the third appeal where the period of dispute is April, 2000 to November, 2002, the period from July, 2000 to November, 2002 is governed by the Central Excise Valuation Rules, 2000 and, therefore, the demand for the period subsequent to July, 2000 cannot be sustained, as already held by the Tribunal in para 8 of the Order while disposing of Appeal No. E/1820/99.
3. The learned SDR vehemently opposes the prayer, highlighting the fact that all appeals were disposed of by a common Order and all issues raised found upon and, therefore, he submits that there is no mistake requiring justification.
4. We have carefully considered the rival submissions. In appeal E/1821 /99, the assessees have raised the plea that although the authorities below held that the assessable value of physicians' samples is to be determined on pro rata basis of trade packs, trade discount and quantity discount allowed in respect of trade packs sold in the market was disallowed. However, while upholding the finding of the authorities below, the Tribunal has not recorded any finding on the submission that both discounts are required to be given to the assessees. Since the learned SDR submits that both the discounts were allowed while arriving at the assessable value of physicians' samples and since this factual position is disputed by the assessees, we direct the authorities below to requantify the demand in this appeal by allowing trade discount and quantity discount, if not already allowed. The appeal is thus allowed by way of remand to the Commissioner (Appeals) on this aspect.
5. As regards Appeal No. E/1273/2004, although the plea of limitation was raised, the Tribunal has not recorded any finding on this issue. We also find that the lower appellate authority has not given any finding as to whether the demand from 1998-99 to 30-11-1999 is time barred. We, therefore, remand this issue for fresh decision to the Commissioner (Appeals).
6. As regards Appeal No. E/3657/2004, we agree with the applicants that since the period from July, 2000 to November, 2002 is covered by the Valuation Rules, 2000, the demand for this period is not sustainable in view of our finding in para 8 in Appeal No. E/1820/1999 that Board's Circular dated 1-7-2002 will support the applicants' contention that value has to be arrived at 115% of the cost of production of the samples and any demand worked out on any different basis does not have the force of law. We, therefore, hold that for the period July, 2000 to November, 2002, the assessable value has to be worked out on cost construction basis and set aside the finding of the Commissioner that the assessment has to be taken on pro rata basis of value of commercial packs. This appeal is therefore partly allowed.