1998 (11) TMI 210 - AT - Central Excise

Summary

Issues: Classification of Thiabendazole Premix BP (Vet) under Central Excise Tariff Act

Issue 1: Classification of Thiabendazole Premix BP (Vet) under Central Excise Tariff Act
The case involved determining whether Thiabendazole Premix BP (Vet) should be classified as a patent or proprietary medicine under sub-heading 3003.10 of the Central Excise Tariff Act. The appellant, a veterinary medicament manufacturer, argued that the product should be classified under sub-heading 3003.20, citing its inclusion in the British Pharmacopoeia (Veterinary). The Assistant Collector had classified it under sub-heading 3003.10 due to the absence of British Pharmacopoeia (Veterinary) in the specified Pharmacopoeia. The Collector (Appeals) upheld this classification based on the product being considered a patent or proprietary medicament. The appellant contended that the product was marketed under a generic name without a brand name, and the monogram on the label was not significant. They referenced previous judgments and the Drugs and Cosmetics Act to support their argument.

Issue 2: Interpretation of Note 2(ii) to Chapter 30 of the Central Excise Tariff Act
The respondent argued that according to Note 2(ii) to Chapter 30, a patent or proprietary medicament is any drug with a name not specified in a Pharmacopoeia listed in the note. They contended that British Pharmacopoeia (Veterinary) was not specified, making the product a patent or proprietary medicament. The mention of an invented word on the label was highlighted as a factor in classifying the product as a patent or proprietary medicine. The appellant countered by asserting that the word on the label did not establish a relationship between the mark and the medicine, as it was used for general branding purposes. The appellant also pointed out that the British Pharmacopoeia did include Thiabendazole Premix, supporting their classification argument.

Judgment
After considering both parties' arguments, the tribunal ruled in favor of the appellant. They noted that the product's name was included in the British Pharmacopoeia, undermining the classification as a patent or proprietary medicament. The tribunal distinguished between a "house mark" and a "product mark," citing a Supreme Court judgment that emphasized the need for identification under the Drug Rules. The tribunal found that the word on the label did not establish a proprietary relationship with the medicine, following the Supreme Court's precedent. Consequently, the tribunal set aside the previous orders and allowed both appeals, concluding that the product should not be classified as a patent or proprietary medicament under the Central Excise Tariff Act.