2017 (11) TMI 239 - AT - Central Excise

Classification of goods - medicaments - classified under CTH 3003.20 or otherwise? - whether the medicament of the appellants sold under the name Acetyl Salicylic Acid Tablets IP 50 MG (ASA) is a P & P medicament or a medicament other than P & P medicament? - Held that - ASA is used as an abbreviation for Acetyl Salicylic Acid , and the same is commonly used, in such case the appellant has no proprietary right on the word ASA, which stands for Acetyl Salicylic Acid - On reading of the definition of P & P medicament, to qualify medicament as P & P, either name of the medicament should be other than the name specified in a monogram pharmacopoeia such as IP, BP, USP, etc. or the name should be a trade name on which the person using should have the right as proprietor or otherwise to use such name or mark with or without any indication of the identity of that person. Since the name ASA is nothing but an abbreviation of Acetyl Salicylic Acid and commonly used by anybody for referring the name Acetyl Salicylic Acid, the same cannot be considered as a brand name of the appellant. Moreover, as per the labels of various other manufacturers submitted by the appellant, it is observed that abbreviation ASA is being used by various other manufacturers for the reason that any individual person has sole right on such name, i.e. ASA. The name of the medicament, i.e. Acetyl Salicylic Acid Tablets IP 50 MG (ASA) is not a brand name and it is a generic name therefore, it does not fall under the definition of P & P medicament. Accordingly, classification claimed by the appellant as medicament other than P & P under Chapter Heading 3003.20 is held to be correct. Extended period of limitation - Held that - it cannot be said that there is a suppression of fact on the part of the appellant - extended period not invoked. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Classification of medicament as Patent or Proprietary (P & P) medicament or otherwise; Use of brand name "ASA" on packaging; Proprietary rights over abbreviation "ASA"; Limitation period for issuing show-cause notices.

Classification of Medicament:
The case involved determining whether the medicament marketed as "Acetyl Salicylic Acid Tablets IP 50 MG (ASA)" should be classified as a Patent or Proprietary (P & P) medicament or as a generic medicament. The appellant argued that "ASA" was an abbreviation of the generic name "Acetyl Salicylic Acid" and not a brand name. Various literatures and references were cited to establish that "ASA" was commonly used as an abbreviation for the said medicament. The Tribunal found that since "ASA" was universally used as an abbreviation for "Acetyl Salicylic Acid," the appellant had no proprietary right over it. Therefore, the medicament did not qualify as a P & P medicament and was correctly classified under Chapter Heading 3003.20.

Use of Brand Name "ASA":
The department contended that "ASA" was the brand name of the appellant, thus classifying the medicament as a P & P medicament. However, the Tribunal noted that as per the definition of P & P medicament, a brand name should be one on which the person using it has proprietary rights. Since "ASA" was merely an abbreviation of the generic name and commonly used by others, it did not qualify as a brand name. The Tribunal referred to a Delhi High Court judgment where it was held that an abbreviation of a generic name cannot be considered a brand name. Therefore, the use of "ASA" did not make the medicament a P & P product.

Proprietary Rights over Abbreviation "ASA":
The appellant argued that they did not have proprietary rights over the abbreviation "ASA" as it was a common abbreviation for "Acetyl Salicylic Acid." They presented evidence showing the widespread use of the abbreviation in connection with the said medicament. The Tribunal agreed with this argument, stating that since "ASA" was commonly used by various manufacturers and individuals, it could not be considered a brand name. Therefore, the appellant did not have exclusive rights over the abbreviation "ASA."

Limitation Period for Show-Cause Notices:
The appellant raised the issue of limitation, arguing that the show-cause notices issued by the department were time-barred. They contended that the department was aware of the change in classification and packaging of the product from April 1998. The Tribunal agreed with this argument, stating that since the appellant had filed a classification declaration in April 1998, the department had knowledge of the change. Therefore, the demand raised for the extended period was considered time-barred. The Tribunal set aside the impugned order on both merit and limitation grounds, allowing the appeals.

This detailed analysis of the judgment highlights the key issues involved in the case and the Tribunal's reasoning behind its decision on each issue.