9911796707
TMI Blog1999 (3) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellants manufactured, inter alia, the following products:- (i) 0.9% W/V Sodium Chloride Injection, (ii) 5% W/V Dextrose Injection I.P. (iii) 10% W/V Dextrose Injection I.P. (iv) 0.9% W/V Sodium Chloride, and (v) 5% W/V Dextrose Injection I.P. (vi) Compound Sodium Lactate Injection I.P. 2.2. A show cause notice dated 5-7-1993 was issued to them for demanding central excise duty for the period from April, 1990 to November, 1992 in respect of the above mentioned goods. The Collector Central Excise confirmed the demand of duty amounting to Rs. 1,29,81,403.62 p. and imposed a penalty of Rs.1000/- holding that the registered trade mark WOCKHARDT was written in a special fashion at the two corner of the opening end on all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 276, (iv) Padmini Products, 1989 (43) E.L.T. 195, (v) Mac Laboratories, 1985 (19) E.L.T. 307. 3.2 The learned Counsel, further, submitted that the law clearly provides that an incorrect classification can be modified for future clearances but after giving a show cause notice and furnishing cogent reasons; that in the present case no show cause notice had been issued expressing the view that the earlier classification lists were wrongly approved and that the Department proposed to modify the classification list for future; that in these circumstances, there can be no question of raising any demand for the past clearances effected under approved classification lists. He further mentioned that the notice was primarily based on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ark and Trade name and held that the identification of a medicine should not be equated with the product mark. Identification is compulsory under the Drug Rules. Technically, it is known as House Mark". He also mentioned that the Supreme Court approved the ratio laid down by the Madras High Court in Indo French Pharmaceutical Co., 1983 E.L.T. 725 (Mad.) as correctly enunciating the scope of Explanation I to item 14E of the erstwhile Central Excise Tariff. In the case of Indo French Pharmaceutical, the Madras High Court held that the symbol which was a rectangle with a flame and the words Indo French did not indicate a connection in the course of trade between medicine and the manufacturer. He concluded his argument by contending that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to Section 11A of the Central Excise Act. He also mentioned that the label did not reveal that the collaboration was not in respect of medicine but was only in respect of pouch. 6. In rejoinder, Shri C.S. Lodha, learned counsel, submitted that nothing was suppressed from the Department as it was clearly mentioned on the label in technical collaboration of M/s. Pharma Plan Gmbh and the Department could have taken the objection, if any, at the time of scrutiny and approval of the classification lists. Further clause 17 and 18 of the agreement only provided that whatever was being designed would be the property of the buyer and seller would have no interest in the same. These clauses did not say or mean any word about proprietary interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barred. Similarly it was held by the Tribunal in ICPA Health Products (P) Ltd. v. CCE, 1999 (108) E.L.T. 598 (Tribunal) = 1998 (27) RLT 119 (T) that extended period of limitation is not applicable when classification list filed by the appellants giving the correct name of the products were approved from time to time. Accordingly the entire demand being beyond the statutory period of six months, is hit by time limit. Even on merit, the medicines in question cannot be treated as patent or proprietary medicaments inasmuch as the name under which the products are described have been given in the Pharmacopoeia. The Assistant Commissioner, FDA, has categorically stated, in his cross examination, that putting the percentage strength of the medicam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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