ORDER
K. Sankararaman, Member (T)
1. These are a bunch of four appeals filed by the Collector of Central Excise, Bombay-II against four separate orders-in-appeal passed by the Collector of Central Excise (Appeals), Bombay whereby the latter had disposed of four appeals filed before him by M/s. Lenec Institute of Pharma (P) Ltd. who are respondents herein holding that they were not liable to excise duty in respect of their product marked ‘PD-TOL 800’. The Collector, while passing the impugned order, had relied, inter alia upon the decision of the Madras High Court in the case of M/s. Indo French Pharmaceutical Co., Madras v. Union of India and Anr., reported in 1978 (2) E.L.T. (J 478)
2. When the appeals were taken up for hearing, Shri J.P. Singh, the learned Departmental Representative fairly concedes at the outset that there is a recent judgment of the Honourable Supreme Court in the case of Astra Pharmaceuticals (P) Ltd. v. Collector of Central Excise, Chandigarh, reported in 1995 (75) E.L.T. 214 (S.C). This judgment goes against the stand of the Department taken in the appeal. In view of this position, he leaves the matter to be decided by the Bench.
3. Shri N.R. Khaitan, learned Advocate of M/s. Khaitan & Company is present on behalf of the respondents. He makes available a copy of the judgment of the Supreme Court referred by the learned Departmental Representative. He points out that the ratio laid down in the Madras High Court judgment which was relied upon and followed by the Collector (Appeals) in his impugned order has been approved by the Supreme Court in the Astra Pharmaceuticals (P) Ltd. case as correctly explaining the scope of the Explanation in Tariff Item 14E regarding patent of proprietary medicines. He pleads that in view of this settled position the appeals field by the Department may be dismissed.
4. We have taken note of the submissions. We have perused the record and the authorities cited. The duty demand is sought to be raised in these appeals on account of the indication in the packing, containing the medicines in question, of the mark ‘PDTOL 800’. It was clarified by Shri Khaitan, the learned Advocate that TOL 800 is the entry in the relevant pharmacopoeia. Thus, the objection actually boils down to the use of the letters ‘PD’ which actually stands for the name of Panacea Drugs Pvt. Ltd. on whose behalf the respondents have manufactured the subject goods as loan licensee. In the Astra Pharmaceuticals (P) Ltd. case decided by the Supreme Court, a distinction had been made between house mark and product mark. It was laid down therein that the ‘house mark’ which is usually a device in the form of an emblem, word or both is an identification of the manufacturer which is compulsory under Drug Rules. On the other hand, product mark or brand name which invariably a word or a combination of a word and letter or numeral is the one by which the product is identified and asked for. Accordingly, it was held by the Honourable Supreme Court that a monograph which only identifies the manufacturer would not make the medicine patent or proprietary
5. Respectfully, following the pronouncement of the Honourable Supreme Court in the above case, we see on merit in the Department’s appeals which are accordingly dismissed. Order dictated in Court.
