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TMI Blog1996 (1) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... ymbol, monogram, levels, signature, words, any written indication or so on to indicate a relation in course of Trade, between the medicaments and the manufacturers. The case of the Department is that the said product was actually cleared with the logo, Health , which is a monogram and the foil of the said capsule was marked with logo, Health . So the case of the Department is that the product is classifiable under Chapter sub-heading No. 3003.10 of the Central Excise Tariff Act attracting duty @15% adv. Hence the show cause notice was issued to the appellant company for recovery of the differential duty in respect of the clearance taken place during the period from 30-5-1992 to 8-6-1992, invoking the longer period of limitation under Section 11A of the Central Excises and Salt Act, 1944 (CESA for short). 3. After personal hearing the learned Adjudicating Authority classified the same under sub-heading No. 3003.10 of the Central Excise Tariff (CET for short) and demanded the duty. 4. Ld. Advocate, Shri P.K. Das contended before us that the logo, Health which is used by the appellant firm does not indicate that the medicine in question is a special preparation made by them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant firm describes that medicine by any symbol or monogram or lebel so as to establish a relationship between the manufacturer and the medicine manufactured by them and whether they could be included in the Explanation appended to Item No. 14E of CET. 7. The Explanation to Item No. 14E of CET defines Patent or Proprietary Medicines as 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 (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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne manufactured by the appellants is not registered under the Trade and Merchandise Marks Act. Therefore, it would attract levy only if its container or packing carried any distinctive marks so as to establish the relation between the medicine and the manufacturer. But the identification of a medicine should not be equated with the produce mark. Identification is compulsory under the Drug Rules. Technically, it is known as `house mark . In Narayan s Book on Trade Marks and Passing-Off, the distinction between `house mark and `product mark (brand name) is brought out thus, ₹ 677A. House mark and product mark (or brand name). In the pharmaceutical business a distinction is made between a house mark and a product mark. The former is used on all the products of the manufacturer. It is usually a device in the form of an emblem, word or both. For each product a separate mark known as a product mark or a brand name is used which is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In respect of all products both the product mark and house mark will appear side by side on all the labels, cartons etc. Goods are o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Division Bench of the Madras High Court in the case of Union of India v. Indo-French Pharmaceutical Co. reported in 1983 (12) E.L.T. 725 (Mad.). All these decisions are considered by the Honourable Supreme Court in the above-cited decision reported in 1995 (75) E.L.T. 214 (SC) wherein at para 7 their Lordships held as follows :- 7. In M/s. Indo French Pharmaceutical Co., Madras v. Union of India and Others - 1978 (2) E.L.T. (J 478) a learned Single Judge of the Madras High Court while construing Tariff Item 14E observed, a close reading of the Explanation however in my view indicates that the marks, symbols, monogram, label, signature or other words which are used in the medicinal preparation or its container should be such as to indicate that the medicine is a special preparation made by the manufacturer. The connection between the medicine and the manufacturer contemplated under the Explanation should be such as to indicate that the manufacturer has a proprietary interest in the medicine. This was approved by Division Bench of the same High Court in Union of India v. Indo-French Pharmaceutical Company - 1983 (12) E.L.T. 725 (Mad.). Reliance was placed on Ramsey Pharma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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