JUDGMENT
Jyoti Balasundaram, Member (J)
1. The respondents are engaged in the manufacture of excisable goods falling under CET sub-heading 3003.10 and availing total exemption from payment of duty under Notification 48/77 dated 01/04/1977 in respect of ‘Physician Samples’ for their loan-licensee M/s. Elder Healthcare Limited. The department was of the view that the form of packing of the samples was not distinctively different from the regular trade packing and that therefore the assessees did not fulfil one of the conditions of the notification above mentioned and hence the Range Superintendent issued a show cause notice for recovery of duty of Rs. 27,587.53 on this account. The Assistant Collector adjudicated the notice confirming the demand while the lower appellate authority extended the benefit of the notification holding that the respondents had complied with the conditions thereof. Hence this appeal by the Revenue.
2. We have heard Shri Pardeshi for the Revenue and perused the records as none appeared for the respondents in spite of notice.
3. We find that the Commissioner (Appeals) has noted clear differences between the ‘Physical Samples’ and the trade packs namely that:
(i) Box for sample packs does not contain printed MRP while the trade packs contain the same;
(ii) Sample packs were clearly marked in red in ink “Physician Samples not to be sold”.
(iii) Sample packs were packed in one box and 400 vials each directly while trade packing was in the form of a box of 25 vials and a total bigger pack of 400 vials by packing 16 such packs in one box.
It is due to the above differences that he has held that sample packs were distinctively different from trade packs.
4. In the appeal memorandum Revenue challenges the impugned order only on the ground that the Commissioner (Appeals) did not consider the Tribunal’s decision in the case of Indian Drugs and Pharmaceuticals v. CCE 1987 (31) ELT 829, without challenging the finding that there are clear and marked differences in the present case between the trade packing and the Physician Samples. The Revenue has not brought out as to what should be the differences between the trade packs and sample packs so as to hold that the conditions of the notification relating to distinctive packing stands satisfied.
5. Thus in the face of the clear finding of the commissioner (Appeals that trade packing is distinctively different from the sample packs and in the face of lack of substantiation by the Revenue we hold that there is no legal infirmity in the impugned order and accordingly uphold the same and reject the appeal.