IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.E.A. No. 101 of 2005 DATE OF DECISION : 20.02.2008 Commissioner, Central Excise, Panchkula .... APPELLANT Versus M/s Malcom Pharmaceuticals, Naraingarh Road, Mandhor Ambala City ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Rahul Sharma, Advocate, for the appellant. None for the respondent. SATISH KUMAR MITTAL, J. This appeal filed by the revenue under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as `the Act') has been directed against the order dated 11.2.2005 passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as `the CESTAT') whereby the Appeal No. E/4241/0-4-NB (SM) filed by the respondent-assessee, has been allowed and the order dated 31.5.2004, passed by the Commissioner (Appeals) Central Excise, Faridabad, has been set aside. In this appeal, the following substantial question of law has been raised by learned counsel for the appellant for consideration of this Court : Whether excise duty is leviable on “Control Samples” withdrawn and removed without accountal in the daily stock CEA No. 101 of 2005 -2- account register by the party, considering it to be “deemed removal” under Rule 9 and Rule 49 of the erstwhile Central Excise Duty Rules, 1944 ? The respondent-assessee is a company engaged in the manufacture of medicines falling under Chapter Heading 30.03 of the Schedule to the Central Excise Tariff Act, 1985. On 14.3.2002, its factory premises was visited by the officers of the Central Excise Division, Ambala. At that time, it was noticed that the assessee was withdrawing/removing controlled samples of each batch of medicine without payment of central excise duty leviable thereon. It was also noticed that the assessee had not accounted those samples in its daily stock account register. Thereupon, the assessee was asked to furnish the detail of the control samples withdrawn by it from January, 1997 onwards. In response thereto, the assessee submitted detail of the control samples withdrawn by it during the period from September 1997 to January 2002. The total value of the control samples was Rs. 39,883/- involving Central Excise Duty of Rs. 2,022/-. When the assessee was pointed out the non-payment of the said duty, it deposited the said amount along with interest in March, 2002. Thereafter, a show cause notice was issued to the assessee for confirmation of the Central Excise Duty amounting to Rs. 2,022/- already paid and appropriated under section 11A of the Act by invoking the proviso of extended time limit; interest on the demand amount, already paid under section 11AB; for imposing personal penalty on the partner of the assessee under Rule 209A of the CEA No. 101 of 2005 -3- erstwhile Central Excise Rules, 1944 and Rule 26 of the erstwhile Central Excise (No.2) read with Section 38A of the Act. The Additional Commissioner (AE), Central Excise, Panchkula, vide order dated 21.5.2003 confirmed the demand of Central Excise Duty amounting to Rs. 2,022/- and appropriated (being already deposited) under Section 11A of the Act; and amount of interest of Rs. 1,647/- was also confirmed and appropriated under Section 11AB of the act. A penalty of Rs.10,000/- was also imposed under rule 25 of the erstwhile Central Excise (No.2) Rules, 2001. However, no personal penalty on the partner of the assessee was imposed. Against the said order, the assessee filed an appeal before the CESTAT, who vide his order dated 11.2.2005 allowed the same and set aside the order of the Additional Commissioner (AE) Central Excise, while following its decision in CCE, Chandigarh v. Dabur India Limited, wherein it was held that the control samples retained in the factory premises for the purpose of laboratory tests are not required to be charged to duty. On January 28, 2008, counsel for the appellant was directed to place on record copy of the order passed by the Tribunal in case of CCE Vs. Dabur India Limited. The same has been placed on record. The Tribunal in that case, while following the Basic Manual of Departmental Instructions on Excisable Manufactured Produce as on 31.12.1979 and the supplementary instructions of Excise Manuals effective from 1.9.2001, held that when a manufacturer preserve the samples of their product for some period for CEA No. 101 of 2005 -4- investigation of complaints, no duty shall be charged on these samples considering that those goods remain within the factory. It was held that the duty shall be charged only when the samples are cleared from the factory. In view of the said decision, which is based upon the instructions issued by the department, we do not find any illegality in the impugned order. Counsel for the appellant further argued that the assessee is liable for penalty under Section 11 AC of the Act for not accounting the control sample in the daily stock account register. We do not find any substance in this argument, as in the case of CCE Vs. Dabur India Limited (CEA No.2 of 2005) (supra), it was held that no duty is to be charged on the control sample, but the proper account of receipts and utilization of such sample in the laboratory should be maintained. In the instant case, there is no allegation that the proper account was not being maintained, but it is said that the sample is to be accounted in the daily register. In our view, in the daily account register only those items are to be entered, which are withdrawn from the factory. Hence, in this appeal, no substantial question of law is arising from the order of the CESTAT. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE February 20, 2008 ( RAKESH KUMAR GARG ) ndj JUDGE