JUDGMENT
Gowri Shankar, Member (Technical)
1. The primary question for consideration in these three appeals is the classification of the product, prednisolone tablets of 10 mg and 20 mg strength manufactured by the appellant. In the classification list field by it, the appellant had claimed their classification under heading 3003.20 of the Tariff as a medicament (other than patent or proprietary) other than those which are exclusive of ayurvedic, unani, siddha, homeopathic or bio-chemic systems. These products carry nil rate of duty. The classification lists were approved. The notice issued to be manufacturer, its managing director and marketing director proposed that the product was correctly classifiable under sub-heading 10 30.03 as a patent or proprietary medicaments, demanded the duty payable thereby and proposed penalty on the manufacturer and these two employees.
2. In the common order impugned in the appeals before us, the Commissioner has confirmed the classification of the products under sub-heading 10 and demanded duty consequently payable and imposed penalty on the company and its two employees.
3. The notice proposed for the change of classification number for various reasons. Among these were that the tablets bore on them the name “Wyeth” which rendered it a patent or proprietary medicaments; the product containing the same chemical composition and strength was given as a physician sample under the brand name being cleared by ‘Wysolone’ which the manufacturer had described as patent or proprietary medicaments; and that adhesive strips used to seal the outer carton in which these medicines were transported bore the trade mark of the manufacturer. Some other reasons were also advanced. In the order impugned before us, however, the Commissioner has not taken into consideration any of these features. He has passed his conclusion entirely on the facts the tablets bore on them the name “Wyeth”. He considered that this was not the name specified for a monograph or pharmacopoeia formulary or any of the publication specified in note 2 to chapter 30 and that it was in the nature of symbol, label, signature or invented word and therefore used for the purpose of indicating connection between the medicine and the person having right to use the name.
4. It was contended before him that the name “Wyeth” appearing on the tablet was a house mark of Wyeth laboratories, the manufacturer, and cited the judgment of the Supreme Court in Astra Pharmaceutical P. Ltd. v. CCE 1995 (75) ELT 214. It held that the sue of the “house mark” attracted the explanation contained in note 2 to Chapter 30. The Commissioner has advanced two reasons for distinguishing the Supreme Court judgment and finding inapplicable to the facts before him. The first is that “there is a evidence with the department that the assessee was projecting the goods as P&P for the purpose of marketing, whereas for the purpose of availing exemption, they had declared the same as generic medicine”. The second was that the word ‘Astra’ which the Supreme Court found the house mark of Astra Pharmaceutical was not a trade mark, whereas “Wyeth” was a registered trade mark of Wyeth Laboratories Ltd.
5. The basis for the first reason that he advanced is that the manufacturer did not have any physician sample of prednisolone tablets. The physician’s sample that it distributed free to physicians were of Wysolone, the same sample it marketed under the brand name. It is pretty clear to us that in order to propagate the sale of the product relied upon Wysolone, but for purposes of payment of duty refrained from using the brand name on the prednisolone tablet which it manufactured. The question before us however is not really the motive of the manufacturer, however questionable it may be. The question before us is that whether by application of the law, the products in question were patent or proprietary medicaments.
6. Hence the fact that the appellant chose to exploit its manufacturer of Wysolone for the purpose of increasing its sale for the prednisolone tablets under consideration cannot by itself lead to the conclusion that the products under consideration are patent and proprietary medicaments. For that to be held, it must be shown that the product specified the requirement contained in note 2(2) of Chapter 30.
7. This brings us to the second reason that the Commissioner has advanced for denying the benefit. In its judgment, the Supreme Court had noted that there was a distinction in the pharmaceutical business between the house mark and product mark the format is used on all the products of manufacture. For each product a separate mark known as a product mark or a brand name was used which is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In respect of all products both the product mark and house mark will appear side by side on all the labels, cartons etc. The house mark serves as an emblem to project the image of the manufacturer generally. It then concluded that the word “AP” and “Astra” on the container on the packaging was used to project the image of the manufacturer generally. It did not establish any relationship between the mark and the medicine.
8. The Supreme Court’s judgment does not disclose to us any finding by it that the name “Astra” was not a registered trade mark. It does not appear to be relevant whether the product is registered or not. The reasoning behind the Supreme Court judgment is that the house mark by itself is not sufficient to establish the relationship of the medicine and the mark. We do not find it possible to validate the Commissioner’s attempt distinguish the Supreme Court judgment.
9. The Joint chief departmental representative contends before us that the Court’s judgment does justify the conclusion that the Commissioner has arrived at. He relies upon the following excerpt of the Supreme Court “For the instance if the appellant instead of using Dextrose injections would have described as Astra injections or Astra Dextrose injections then it could be said that a relationship between the monograph and the medicine was established”. Therefore he says the word Wyeth on the tablet established the relationship.
10. We do not find it possible to agree. To apply the facts before us and the example that the Court had given that if the appellant described the goods as Wyeth prednisolone, the relationship between the name and the medicine would have been established. But the name of the manufacturer alone or the goods is insufficient to establish the relationship between the medicine and the manufacturer. The fact that in the case before us there was no mark upon the packing and it were upon the tablet does not to our mind make a difference. Once the principle is established, it will apply to the name either on the packing or on the product itself.
11. It is therefore our conclusion that the product in question would not be considered to be a patent and proprietary medicament. its classification under sub-heading 20 of the heading 3003 cannot be upheld. In the light of our finding, we have not considered it necessary to consider the argument raised before us on the applicability of the extended period invoked in the show cause notice.
12. The appeals are accordingly allowed. Impugned order set aside.