ORDER
Gowri Shankar, Member (T)
1. The appeal is taken up for disposal with consent of both sides after waiving deposit.
2. The appellant filed a declaration for classification under heading 3003.10 of the Central Excise Tariff as patent or proprietary medicaments of four products manufactured by it. These are described as ampicillin sodium injection, lidocaine hydrochloride injection, cloxacillin injection and ‘Ulcerix’. the goods were intended to be exported. The department, on examination of the labels on the containers of the products, took the view that these were not patent or proprietary medicaments but other medicaments classifiable under heading 3003.20, carrying nil rate of duty. It objected to the modvat credit taken of the duty paid on the inputs used in the manufacture. The assessee resisted the contention in the notice. The Assistant Commissioner passed orders confirming the denial of the modvat credit and imposing penalty. The appeal against that order having been dismissed by the Commissioner (Appeals), the matter is before us.
3. The contention of the representative of the appellants before us is that the products are patent and proprietary medicaments. We have seen the labels on the four products. Expect for one, all three of them carry on them in bold letters only the generic name of the product i.e. ampicillin sodium, lidocaine hydrochloride and cloxacillin injection. The contention of the representative of
the appellant that lidocaine hydrochloride is not a name found in a pharmacopoeia is found, on verification, to be totally wrong. In the Extra Pharmacopoeia of Martindale, the relevant entry shows that lidocaine is a local anaesthetic and is also known as lignocaine. The label on the fourth product, Ulcerix, contains in bold and highlighted letters the word ‘ranitidine,’ the generic name of its ingredient, followed by letters much smaller to it the word ‘Ulcerix’.
4. Three of the products do not carry, on themselves or their containers, any name other than the generic name of the product. The prominent, eye-catching name of the fourth is its generic name, and not the invented name. We are satisfied that the products do not conform to the requirement contained in the definition of patent or proprietary medicaments found in Note 2 to Chapter 30, which reads as follows:
“(ii) ‘Patent or proprietary medicaments’ means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals, which bears either on itself or on its container or both, a name which is not specified in a monograph, in a Pharmacopoeia, Formulary or other publications, namely:-
(a) The Indian Pharmacopoeia;
(b) The International Pharmacopoeia;
(c) The National Formulary of India;
(d) The British Pharmacopoeia;
(e) The British Pharmaceutical Codex;
(f) The British Veterinary Codex;
(g) The United States Pharmacopoeia;
(h) The National Formulary of the U.S.A;
(i) The Dental Formulary of the U.S.A.; and
(j) The State Pharmacopoeia of the U.S.S.R.;
or which is a brand name, that is, a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between the medicine and some person, having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person.”
The goods were classifiable under heading 30.03 and credit could not be taken of the duty paid on the inputs used in their manufacture.
5. We are unable to accept the contention that there was no mala fide intention. The presence, clearly and undoubtedly, of only the generic name of the three out of the four products, and the total absence of any monogram, invented word, etc. on the label could not lead anyone to think that they were patent or proprietary medicaments. A feeble attempt was made by the representative of the appellant to say that this course of action was resorted to because of frequent show cause notices that the department indiscriminately issued with regard to such classification. When we asked the representative of the appellant whether the manufacturer declared similarly labelled medicaments, when cleared for home consumption, as patent or proprietary medicaments and paid duty upon them, he was unable to answer. In these circumstances, the penalty imposed on the appellant of Rs. 5,000/- is nominal and does not call for any interference.
6. A plea was also made that the appellant would be entitled to rebate under Rule 12(1)(b) of the duty paid on the inputs used for manufacturing the exported products. That is not issue before us. We leave it to the appellant to pursue this claim to the appellant, if so advised, with the appropriate authority.
7. Appeal dismissed.