Judgment:
S.S. Kang
The appellants made a written request to decide the appeal on merits. Heard the learned AR appearing on behalf of the Revenue.
2. The appellants filed this appeal against the impugned order whereby the refund claim of Rs.18,389/- has been rejected.
3. The appellants are engaged in the manufacture of pharmaceutical products in the form of physician samples which were given free of cost to the doctors to promote the sale of their product. During the period in dispute, the appellants adopted the valuation pattern based on the cost of product + 15% notional profit to arrive at the assessable value for payment of central excise duty on such physician samples in view of the provisions of Rule 8 of the Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2000.
4. In the appeal memo, the contention of the appellants is that subsequently the appellants filed a refund claim of the amount in question on the ground that the appellants cleared physician samples during the period 23rd January 2002 to 4th March 2002 on the basis of 115% of cost of production based on cost audit report for financial year 2001-02 and after the availability of cost audit report for the financial year 2001-02, the appellant paid the duty on their own where there was an upward revision in the cost of physician samples and whereas there was a downward revision of cost of production, they have filed the refund claim.
5. The Revenue relied upon the findings of the lower authority to submit that such assessments were not provisional and in case of duty has been paid in absence of any provisional assessment, subsequent revision in the price will not entitle the assessee for refund of duty paid.
6. We find that the Commissioner (Appeals) in the impugned order held as under:-
“I have gone through the case records and considered the arguments advanced in the appeal memorandum and at the time of personal hearing. The claim lodged before the lower authority was solely based on the ground that the assessable value worked out by the appellants, for clearing the physician’s samples during the relevant period was more than the correct assessable value, as the correct assessable value (115% of the cost of the production) could be ascertained only after cost audit at the end of the financial year. The claim is based on the cost audit certificate issued by their auditors. The said certificate, however, does not indicate anywhere whether the cost of catch cover is considered or included in the cost of physician’s samples of P.P. medicines. Therefore, I agree with the finding of the lower authority in this regard and do not see any reason why the impugned order should be interfered. The appellants have not produced any other evidence to establish the eligibility of their claim. Mere verbal assertion at the time of personal hearing is not acceptable in the face of cost audit certificate submitted by them.”
7. The appellants failed to produce evidence in support of their claim before the lower authorities as held by the Commissioner (Appeals). Further we find that as assessments were not provisional, in such case price variation after clearance of goods will not affect the duty paid at the time of clearance of goods. In these circumstances, we find no infirmity in the impugned order. The appeal is dismissed.