State whether the physician samples of the patentor and proprietary medicines are excisable goods despite being statutorily prohibited from being sold. Discuss briefly in the light of a decided case law.

Facts of the Case: The question for consideration is whether physician samples of patent and proprietary medicines intended for distribution to medical practitioners as free samples, satisfies the test of marketability, when the sale of the physician samples is prohibited under the Drugs and Cosmetics Act, 1940. In case of Medley Pharmaceuticals Ltd., Vs. CCE-2011 (269) E.L. T. A20 (S.C) , the Supreme Court observed that merely because a product was statutorily prohibited from being sold, would not mean that the product was not capable of being sold. Sale is not a necessary condition for charging duty as excise duty is payable in case of free supply also. Since, physician samples were capable of being sold in open market, the same were marketable and thus, liable to excise duty. Moreover, the Drugs and Cosmetics Act, 1940 (Drugs Act) and the Central Excise Act, 1944 operated in different fields. The restrictions imposed under Drugs Act could not lead to non-levy of excise duty under the Central Excise Act, thereby causing revenue loss. Prohibition on sale of physician samples under the Drugs Act did not have any bearing or effect on levy of excise duty. Since, physician sample was capable of being sold in open market, the physician samples were excisable goods and were liable to excise duty.