{"id":110643,"date":"1987-09-29T00:00:00","date_gmt":"1987-09-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/astra-pharmaceuticals-pvt-ltd-vs-collector-of-central-excise-on-29-september-1987"},"modified":"2015-03-05T13:45:09","modified_gmt":"2015-03-05T08:15:09","slug":"astra-pharmaceuticals-pvt-ltd-vs-collector-of-central-excise-on-29-september-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/astra-pharmaceuticals-pvt-ltd-vs-collector-of-central-excise-on-29-september-1987","title":{"rendered":"Astra Pharmaceuticals Pvt. Ltd. vs Collector Of Central Excise on 29 September, 1987"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
Astra Pharmaceuticals Pvt. Ltd. vs Collector Of Central Excise on 29 September, 1987<\/div>\n
Equivalent citations: 1987 (13) ECR 1254 Tri Delhi, 1987 (32) ELT 720 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 S.D. Jha, Vice President (J)<\/p>\n
1. The main question for decision in this appeal is whether the appellants manufacture Dextrose I.P. in view of the label and what is called a monogram on the same merits classification as patent and proprietary medicine under the erstwhile Tariff Item 14E of the Central Excise Tariff as claimed by the Revenue or T.I. 68 as claimed by the appellants manufacturer. Allied question is whether demand of duty against the appellants should be for the longer period of five years or shorter period of six months preceding the date of show cause notice.\n<\/p>\n
2.     There is no dispute that Dextrose I.P. is a pharmacopocial medicine mentioned in Pharmacopoeia of  India page   162 which is a specified pharmacopoeia under Notification No. 47\/63 dated 1-3-1963.\n<\/p>\n
3.     The present proceedings  against the appellants are the outcome of   a   visit   by   Central   Excise   officers   (Preventive)   Patiala   Division   to the  appellants  factory  on  23-l~1982.   The  appellants  are  engaged  in  the manufacture   of   medicines.   On   examining   the   labels   used   for   Dextrose I.P. Central Excise authorities were, prima facie, of opinion that in view of the label used on the packing and container of the medicine the medicine would  merit  classification  as patent  and  proprietary  medicine under T.I. 14E.   The   appellants   had   not   filed   any   declaration   claiming   exemption from   licencing   in  terms  of   Notification  No.   111\/78  dated  9-5-1978  nor had   obtained   a  licence   for   manufacture   of   such   medicine.   After   usual investigation show cause notice was served on the appellants calling upon them why for breach of certain rules specified in the show cause notice penalty   be   not   imposed   against   them   and   central   excise   duty   amount Rs. 6,50,439\/- for the period   1978-79 to 23-1-1982 be not  realised from them.   The  appellants  through  their  counsel Shri  A.K.S.  Bedi  filed  reply dated   20-4-1982   to   the   show   cause   notice   mainly   contending  that   the proposed action was based on misconstruction and wrong interpretation of Explanation to Tariff Item 14E. Dextrose I.P. found place in Pharmacopoeia of India. Being a pharmacopoeial medicine it would not fall under T.I. 14E. The monogram on the label was not registered under Trade & Merchandise Act, 1958 or any other Act in favour of the appellants and the appellants had no right in respect of so-called monogram, in view of this the medicine would not merit classification under T.I. 14E.\n<\/p>\n
4. There is no dispute that if the medicine Dextrose I.P. be held not classifiable under T.I. 14E but T.I. 68 the appellants would be eligible to benefit of exemption under Notification No. 71\/78 as amended by Notification No. 80\/80 dated 19-6-1980 and demand of duty would not survive.\n<\/p>\n
5.     The   Collector   of   Central   Excise  after  following  usual  procedure held that in view of the monogram on the label which established a connection between  the  appellants  manufacturer and  the  medicine,  the medicine would   merit   classification   as   patent   and   proprietary   medicine  under  T.I. 14E.   He   accepted  the  appellants  claim  with  respect  to  a  small  quantity value  Rs.  2,532.60  not being includible for raising demand of duty against the   appellants.   He  also  accepted   the  appellants  claim   for   abatement of duty   element   in   determining   the   demand   of   duty   from   the   appellants. He did not impose penalty against the appellants and directed the Assistant Collector  of   Central   Excise   to  work   out   the   duty   demand   against   the appellants   in   the   light   of   these   directions.   Aggrieved   with   this   order the appellants have filed appeal to the Tribunal.\n<\/p>\n
6.     At   the  hearing  of  the  appeal  Shri   M.   Chandrasekharan,  learned Advocate for the appellants advanced the following proposition :\n<\/p>\n
 The show cause notice alleges that the manufacturer uses a monogram and not monograph. On a proper interpretation of the word ‘monogram’ and the examination of the label in question it would be established that the letters do not constitute a ‘monogram’. Under Explanation to Tariff Item in order to incur liability under the item a manufacturer should have the right or proprietorship over the mark. In the appellants case it is the undisputed position that the ‘monogram’ is not registered under any Act like Trade & Merchandise Act, 1958 or Patents Act, 1970. It has no proprietorship over the mark and has no right over the same. In the absence of such right merely because the appellants use two letters in an artistic and sematical fashion on the labels would not fasten liability under the item on the appellants. The Revenue was all along aware of the manufacturing activity of the appellants and therefore shorter period of six months and not the longer period of five years would apply for demand of duty.\n<\/p>\n
7.     Elaborating   his   arguments   Shri   Chandrasekharan   submitted   that the  definition  of  patent  and  proprietary   medicine has three parts which should be read conjunctively and not disjunctively. It should be read harmoniously. Shri Chandrasekharan submitted  that if a manufacturer manufactures   a   medicine   finding   place   in   the   specified  pharmacopoeia  then  he cannot    be   said   to   have  the  proprietary   right  over  the   medicine.   It  is only when he manufactures a medicine not specified in the pharmacopoeia that  he  could be said  to possess such a right. Such was not the case in the   case   of   the   appellants   as   Dextrose   finds   place   in   pharmacopoeia. He   submitted   that   while   the  process  is patented,  the  product   Dextrose is not. patented under Indian Patents Act. He referred to Drugs & Cosmetics Act  1940, Section 3H for the definition of Patent & Proprietary medicine. Shri    Chandrasekharan    referred   to   dictionary    meaning   of    ‘monogram’. According  to  which  it  would   mean  two  or  more  letters  interwoven.  He submitted that in the instant case the letters A.P. were not interwoven but separate. Shri Chandrasekharan during arguments referred to the following decisions’ :\n<\/p>\n
M\/s. Indo French Pharmaceutical Co. Madras v. Union of India and Ors. 1978 ELT 3 478.\n<\/p>\n
Union of India v. Indo French Pharmaceutical Co.<\/a> 1983 ELT 725 (Mad.) – This decision upheld the Single Bench decision of Madras High Court supra.\n<\/p>\n
In Re : Standard Pharmaceuticals Ltd.  1982 ELT 765 (G.O.I.)<\/p>\n
State of  Madras  v.  M\/s.  Gannon   Dunkerley  &  Co.  AIR<\/a>   1958 SC 560.\n<\/p>\n
8.     Shri   M.   Chandrasekharan   in   all   fairness   also   drew  attention  of the Bench to two contrary decisions on the point :\n<\/p>\n
Ramsey Pharma Private Ltd. v. Superintendent, Central Excise Allahabad and Ors. (1983 ELT 78 Alld.)<\/p>\n
Lubri-chem Industries Pvt. Ltd. Bombay v. Collector of Central Excise, Bombay 1983 ELT 2408 (CEGAT).\n<\/p>\n
9.     Shri Shishir Kumar controverting Shri Chandrasekharan’s contention submitted   that   looking   to  the  label  used  by  the  appellants  the   medicine Dextrose   I.P.   fell   in   the   third   category   of   the   Explanation   (this  would be   referred   to   later).   He   relied   on   the   Allahabad   High   Court   decision in   Ramsey   Pharma   Pvt.   Ltd.   (1983   ELT   78)   and   the   Tribunal   decision 1983   ELT   2408   (Cegat)   already   referred   to   by   Shri   Chandrasekharan. He   submitted   that   the   monogram   was   sufficiently   prominent.   The   label and   the   monogram   or   mark   on   the   same   indicated   the   connection,   in the   course   of   trade,   between   the   appellants   and   the   medicine.   About the   ‘right’   part   of   the   Explanation   he   submitted   that   this   need   not   be exclusive;   it   could  be  non-exclusive   right.   About  limitation  he  submitted that the appellants admittedly had not filed any declaration under Notification   No.    111\/78-C.E.   The   appellants   had   never  brought   to   the  notice of   the   Department  that   they  were  using a  monogram  nor had  they   tried to  ascertain with diligence from the  Department  whether their medicines were excisable.  During Inspector’s visit  to the appellants  factory referred to   by   Shri   Chandrasekharan   this   aspect   of   the   matter   was   not  in  issue and  therefore  on  that  oasis  the  appellants could not claim   “hat a shorter period of limitation would apply.\n<\/p>\n
10.   In   rejoinder   Shri   Chandrasekharan   submitted   that   the   Revenue wanted   to   seek   indirectly   what   it   could   not   achieve   directly.   He   also submitted  that  in   order to  fasten  liability  under  Explanation  to  the item, the   “right”   be   it  exclusive  or   non-exclusive,   should  be  enforceable   in   a Court of Law.\n<\/p>\n
11.   Before  dealing  with  the  arguments advanced by  the parties and the   decisions   relied   on   it   would   be   useful   to   reproduce   Explanation   I to Tariff Item  14E which is a definition of Patent or Proprietary medicines for the purpose of Central Excise Tariff.\n<\/p>\n
 Explanation I: Patent or Proprietary medicines 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 notified in this behalf by the Central Government in the Official Gazette, or which is a brand name, that is a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (*3 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.\n<\/p>\n
A sample label of the appellants and the product has been placed on the file. The letters A P do not constitute a monogram because the two letters are not interwoven but there can be no doubt that the two letters are placed side by side in an artistic fashion in the manner shown on the top inside what is a near one cm. square. The two letters are printed in red with the word Astra written underneath. From the precedents on the point to which both the parties have made references a decision of the case on first principles does not appear necessary. It is also common ground that the name of the medicine in question finds place in Indian Pharmacopoeia and the same appears on the label. The question to be seen is whether in this background the label with letters A P printed in an artistic fashion would make the medicine in question a Patent or Proprietary medicine.\n<\/p>\n
12.   Shri Chandrasekharan has no doubt referred to Cannon Dunkerley &   Co’s  case  AIR   1958  SC   560  dealing  with  rules  of   interpretation  but as   there   are  direct  High  Court  decisions  on  the  point  recourse  to  this decision for deciding the issue does not appear strictly necessary.\n<\/p>\n
13.   In para 7 and 8 above Shri Chandrasekharan himself has referred to  decisions  in  favour  of   the  appellants  and  in favour of  Revenge.  The decision in favour of the appellants is the Single Judge decision of Madras High   Court   in   M\/s.   Indo   French   Pharmaceutical   Co.’s   case   1978   ELT 1978. It was upheld in appeal by Division Bench of the same High Court in   1983  ELT  725  (Mad.).  There  is also a Govt. of India decision in  1982 FLT 765 in appellants favour.\n<\/p>\n
14. As against the above, the decision in Ramsey Pharma Private Ltd. 1983 ELT 78 Allahabad is against the appellants. The Tribunal decision in 1983 ELT 2408 (Cegat) is also against the appellants. The Tribunal sitting in Delhi is thus faced with two High Court decisions – one of Madras High Court and the other of Allahabad High Court. While the Tribunal has equal respect for both the High Courts, it is difficult for it to follow simultaneously both the decisions with respect to the same product and only one decision would have to be preferred to the other. The question is which of the two High Court decisions should be preferred. The decision of Ramsey Pharma Private Ltd. case 1983 ELT 78 Allahabad is more ,to the point with the case in hand. In this decision the Hon’ble High Court was concerned with a medicine whose name was, as in this case, contained in an Indian Pharmacopoeia. It had no brand name and the manufacturer had not got any trade mark registered under the Trade and Merchandise Act, 1958 in respect of the medicine. The issue was whether the labels on the bottles of the medicines and the cardboard cartons in which the bottles were packed bore any mark such as a symbol, monogram, invented words or writing indicating a connection in the course of trade between those medicines and the person having either as proprietor or otherwise the right to use such name or mark. The main discussion of this issue is to be found in paras 8 to 12 of the decision. In the decision no monogram was involved but calligraphic letters as in the present case as seen from the label produced were involved. The High Court also referred to requirement of Rule 88 of Drugs and Cosmetic Rules. After referring to the arguments advanced by the parties the High Court recorded its finding as under :\n<\/p>\n
“12. Thus the calligraphic types used for the name ‘Ramsey’ as distinct from the ordinary block letters used for the remaining portion of the name and address of the manufacturer, together with the geometrical design of the circle in which the word ‘Ramsey’ is printed both vertically and horizontally, constitutes a distinctive design so as to distinguish the medicines manufactured by the petitioner from the medicines manufactured by others. We are unable to accept the contention of Sri Kacker that in order to attract the Explanation to Item 14E of the First Schedule the distinctiveness must be only in regard to the name of the medicine and not the name of the manufacturer. The relevant portion of the Explanation reads :\n<\/p>\n
 “…   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.”\n<\/p>\n
According to the explanation it is sufficient if the mark used in relation to the medicine indicates a connection in the course of trade between such medicine and the manufacturer having a right to use such mark.\n<\/p>\n
Thus we are unable to accept the first ground urged by Sri Kacker, namely that the medicinal preparation in question are not liable to excise duty.”\n<\/p>\n
15.   Shri   Chandrasekharan,   learned   Advocate   for   the   appellants   has no   doubt   argued   that   the   decision   does   not   deal   with   or   discuss   that part   of   the   Explanation  which   deals   with  ‘some  person  having  the  right either as proprietor or otherwise to use the name or mark’ and, therefore, may be ignored in preference to Madras High Court decision. This argument cannot  be  accepted  because  the  fact  of  the brand name or trade  mark not having been  registered is  recited in para  8 of the order and in spite of   this  the  Hon’ble  High  Court  recorded  the  above  finding.  The decision of   the   Hon’ble   High   Court   cannot   be   ignored   on   the   ground   urged   by Shri M. Chandrasekharan.\n<\/p>\n
16.   There  is another  reason why  the  Tribunal should follow the Allahabad   High   Court   decision.   In   Lubri-Chem   Industries   Pvt.   Ltd.’s   case (1983   ELT  2408 Cegat)  Tribunal took a decision which was in conformity with  the  Allahabad  High  Court  decision  though it did not in terms refer to   the   Allahabad   High   Court   decision.   Shri   M.   Chandrasekharan  has  no doubt assailed this decision on the ground that it had not noticed in terms the   Allahabad   High   Court   decision  or   the  contrary   Madras   High   Court decision.   He   also  submitted  that  these  decisions  were  taken  in  absence of   the   manufacturer  without  any  arguments.   The  fact,  however,   remains that the decision is in conformity with the Allahabad High Court decision though it does not in terms refer to the same. Tribunal having once taken a   view   in   conformity   with   Allahabad   High   Court   decision,   it   would  not be  prudent   for  this  Bench  to  reverse  that  view  and  follow  Madras  High Court decision in preference to Allahabad High Court decision.\n<\/p>\n
17.   Examined   in   the   light  of   the  Allabad   High   Court   decision,   the two calligraphic   letters A P with name Astra written below inside a near square of one cm. would make the medicine a patent or proprietary medicine attracting Central Excise duty. We find accordingly.\n<\/p>\n
18.   As   for   Shri   Chandrasekharan’s  plea  that   the  show   cause   notice; referred to ‘monograph’ and not ‘monogram’, the substance of the allegation against   the   appellants   was   that   the   medicine  was    patent or proprietary medicine  on  the  allegation  set  out   in  the  show  cause notice.   The  show cause   notice   substantially   gives   notice   to   the   appellants   of   the  charge that they had to meet. The appellants have fully understood the allegation that  they  had  to  meet  and  have  not  been   misled  in  any  way.  On that account   the  demand   raised  against   the  appellants  cannot  be  quashed  or set aside.\n<\/p>\n
19.   As   for   the   plea  of   limitation,   it   is  admitted  position   that   the appellants   had   not   filed   any   declaration   in   terms   of   Notification   No. 111\/78-C.E. which was necessary for them to do in order to claim exemption  from  licensing  control.   Merely  because  Central   Excise officers were generally   visiting   the   appellants   factory  would  not   mean  that   they   had knowledge   of   the   medicines   and   labels   manufactured  by   the  appellants. In absence of anything to show that the labels had been specifically brought to the notice of the Central Excise officers visiting the appellants factory on the basis of their general visit to the appellants factory the appellants cannot be granted the benefit of  shorter limitation of six months in view of   the   fact   that   the  appellants  had  not   filed  the   required  declaration claiming  exemption   from   licensing   control.   In  our   view   the   material  on record is not sufficient to impute knowledge to the Central Excise authorities of the appellants manufacturing activity of the medicine in question. Appellants   claim   in   respect   of   shorter   limitation   of   six   months   being applied against them is hereby rejected.\n<\/p>\n
20.   As a result, the appeal fails and is hereby dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi Astra Pharmaceuticals Pvt. Ltd. vs Collector Of Central Excise on 29 September, 1987 Equivalent citations: 1987 (13) ECR 1254 Tri Delhi, 1987 (32) ELT 720 Tri Del ORDER S.D. Jha, Vice President (J) 1. The main question for decision in this appeal is whether the appellants manufacture Dextrose […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[41,33],"tags":[],"class_list":["post-110643","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nAstra Pharmaceuticals Pvt. 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