ACME PHARMACEUTICALS AND ICOM Vs. CCE

JUDGEMENT

(1.) This appeal is referred for consideration by a Larger Bench for the reason that there are two conflicting views expressed by this Tribunal on the issue raised herein. After hearing both sides and going into the facts of the case in detail, it came out that the issue relating to which there are conflicting decision of this Tribunal as such does not arise in this appeal.

(2.) In the orders impugned the Commissioner (Appeals) took the view that even when the assessee sold the product at a price below the maximum price fixed under Drug Prices Control Order (DPCO, for short), 1995 for the purpose of computing the assessable value of the drugs under Section 4 of Central Excise Act the maximum price fixed under DPCO has to be taken as the normal price.

(3.) We find that the products in respect of which demand is made as duty short levied are not bulk drugs. They are formulation of drugs. This factual position is not disputed by the Revenue before us. It is further seen that the maximum price fixed under DPCO in respect of drugs is retail price and not the wholesale price. Reference to the relevant order (24.5.99) would show that sub -clause (1) of Para 9 provides for the power to fix ceiling price of scheduled formulations. Sub -clause (1) reads as follows: