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TMI Blog1999 (1) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... e erstwhile Central Excise Tariff. 2. Shri C.S. Lodha, ld. Advocate, submitted that the Appellants are manufacturing, inter alia, Veterinary drugs namely, Albandazole suspension, Calcium Borogluconate Oxytetracycline. The Collector, Central Excise, under the impugned order, classified all the three medicines as Patent or Proprietary medicines, observing that in addition to the name and address of the manufacturer, the word "WOCKHARDT" had been printed on the label of the product in a conspicuous manner; that the said word was also embossed on the cap of the container of Oxytetracycline Injection in capital letters: that the printing and embossing the word "WOCKHARDT" connot the connection in course of trade between the medicine and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacturer. The Madras High Court observed that there is absolutely nothing in the mark to indicate a connection in the course of trade between the medicine and the Respondent. The ld. Advocate added that there was no monogram printed by them on any label of the impugned products and in cases of their other medicines wherever the monogram was printed on the label, they were paying Central Excise duty. He finally relied upon the decision of the Supreme Court in the case of Astra Pharmaceuticals (P) Ltd. v. C.C.E., Chandigarh - 1995 (75) E.L.T. 214 (S.C.) in which the Apex Court made a distinction between the house mark and trade name and held that "the identification of a medicine should not be equated with the product mark. Identifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g it under sub-heading 3003.10 along with a copy of the label; that the Superintendent, Central Excise, after visiting the factory, raised the query about the picture of animal and use of the word "WOCKHARDT"; that they clarified that the animal picture was shown on the label of all veterinary products as per the requirement of the Drugs and Cosmetics Act and Rules [Rule 97(3)]; that name "WOCKHARDT" was used only to depict the name of the manufacturer; that after further correspondence, the Assistant Collector approved the Classification lists on 19-6-1989. Similarly in respect of Calcium Borogluconate the Appellants had filed C.L. on 1-3-1984 and subsequently from 1985 to 1988 which were duly approved. The ld. Counsel submitted that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department; that the fact that the word "WOCKHARDT" was embossed on the cap was not brought to the notice of the department at all. In reply the Counsel submitted that "WOCKHARDT" is only their house mark which does not make the medicine patent or proprietary. 5. We have considered the submissions of both the sides. According to the explanation to erstwhile Tariff Item 14E and Note 2 to Chapter 30 of the Schedule to the Central Excise Tariff Act, patent or proprietary medicines means any drug or medicinal preparation which bears a name which is a brand name, that is, a name or a registered trade mark under the Trade and Merchandise Marks, Act, or any other mark such as a symbol, monogram, label, signature or invented words or any wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abel, 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." 7. In the present matter also except mentioning the word "WOCKHARDT" which is a house mark, nothing else in the form of product mark has been mentioned on the label. In view of these facts, following the ratio of the judgment of the Supreme Court in Astra Pharmaceuticals (P) Ltd., we are of the view that the medicines in question are not patent or proprietary me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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