9911796707
TMI Blog1995 (2) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of concessional rate of duty under Notification No. 45/82, dated 28th February 1982 in respect of the item `Water for injection manufactured and cleared by them for the period February 1986 to December 1986. 3. The facts of the case are that the show cause notice dated 21-1-1987 was issued by the Superintendent of Central Excise alleging that the appellant had manufactured and cleared `water for injection falling under Tariff Item No. 14E of the erstwhile Schedule of the Central Excise Tariff Act and the same fell under sub-heading No. 3003.19 of the Central Excise Tariff Act from 1-3-1986, for which they had been paying duty by claiming deduction of 15% discount and 15% Excise duty from maximum retail prices as per Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classification list by quoting the wrong Notification, even then it was within the jurisdiction of the proper officer to correct the reference to the notification which is applicable in the case of appellants after making such enquiry as the proper officer deemed fit as per the authority of sub-rule (2) of Rule 173(B). Therefore, in that premise, the ld. Collector has set aside the Assistant Collector s orders denying the benefit of Notification No. 45/82 as amended and directed him to consider granting the benefit. 5. In this appeal, the appellants are contending that the Collector had cursorily rejected their plea to consider correct classification of the product on the ground that they have not filed a appeal against the non-speaking o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is stated by them that the item Water for Injection I.P is a Pharmacopoeial preparation covered under Indian Pharmacopoeia (3rd edition 1985) Vol. II page 545 and that it is not a patent or proprietary product as it is marketed without any monogram, symbol or Trade Mark of the manufacturers and therefore, Tariff Item 14E or sub-heading 3003.19 under the new tariff is not attracted. It is submitted by them that it is a Pharmaceutical Aid, which is not patent or proprietary and therefore, the classification of the product prior to 28-2-1986 has to be under Tariff Item 68 and thereafter under sub-heading 3003.20. It is also submitted that the Assistant Collector s reliance on the Board s letter No. 24/20/63-CX.1, dated 7-2-1963 for classifyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid item was classified under Tariff Item 14E and the Tribunal had taken a view that the use of the company s name Astra IDL disentitled them from classification under Tariff Item 68. The Hon ble Supreme Court has negatived the revenue s contention and set-aside the Tribunal s order and has held that the use of the word `Astra is only of a house name and that it is not a trade mark. We have carefully perused the records and also the grounds made before us. The Collector (Appeals) has taken a view that the appellants had not challenged the question of classification effected by the Superintendent in this case. This aspect of the matter has been challenged by the appellants and we are quite satisfied with the grounds urged by them on this as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above judgment, it has been held by the Hon ble Supreme Court that there is a distinction between `House Mark and `Product Mark (brand name) and the monograph of the appellant has been held to be a House Mark. Therefore, the `water for injection I.P. which is a pharmacopoeial preparation (covered by both Indian Pharmacopoeia as well as Martindale) has to be treated as a `medicament other than a patent or proprietary product. It is classifiable as such under Tariff Item 68 under the old tariff (prior to 28-2-1986) and under the Heading 3003.20 under the new tariff (after 28-2-1986). 13. This settles the classification issue in the light of ratio of the Hon ble Supreme Court judgment. 14. The second aspect relates to the appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which as per our order, was required to be classified as a `medicament , but it could not be considered as a bulk drug or medicine in the absence of any evidence in support of this contention. Therefore, it will not be covered by the above serial No. as it stood during the relevant period. Accordingly, the benefit of this notification would not be available to the appellants. 18. However, the demand for this period (prior to 28-2-1986) was barred by time as no suppression or mis-statement could be said to be involved in view of the Hon ble Supreme Court judgment and our decision as per para 10 above following the ratio thereof; whereas for the period subsequent to 28-2-1986 the statutory rate of duty was itself nil, therefore, no demand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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