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TMI Blog2017 (11) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... bears a monogram/device containing the letters GRASA, which were interwoven in stylized form. Accordingly, they had classified the said medicament as a Patent or Proprietary Medicament under Central Excise Tariff Heading No.3003.10. The use of said monograph/device of the said medicament was objected to by the authority under the Drugs and Cosmetics Act, 1940 since the said medicament Acetyl Salicylic Acid (also known as Aspirin) falls under Schedule W of the Drugs and Cosmetic Rules, 1945 and therefore, in view of Rule 96 (1) (i) B can be marked only under generic name. Accordingly, the appellant with effect from April 98 discontinued the use of the said device/monogram on the packing of the said medicament and started marketing the same u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same as P & P medicament and discharging the duty on the medicament under Chapter Heading 3003.10. However, after April 1998 when the drugs authority raised the objection, they were not allowed to use any brand name and the medicament was supposed to be sold as a generic medicament, for that reason they stopped using the brand name and started marketing the goods under generic name, i.e., "Acetyl Salicylic Acid Tablets IP 50 MG (ASA)". He submits that the mention of "ASA" is not a brand name as the same is abbreviation of generic name, i.e., "Acetyl Salicylic Acid". He submits that the abbreviation ASA is universally used for the medicament "Acetyl Salicylic Acid". In this regard he referred to various books, encyclopedia, dictionary, lit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct become branded. In this regard he submits that firstly the medicament was marketed as "Acetyl Salicylic Acid Tablets IP 50 MG (ASA)". The word 'GR' was mentioned with the name of the company i.e., German Remedies Ltd., which is nothing but a house name, the same is not a brand name. The word "GR" is not suffixed or prefixed with the name of the medicament appeared on package of the medicament. As regards the use of house name, the Hon'ble Supreme Court in the name of Astra Pharmaceuticals (P) Ltd - 1995 (75) ELT 214 (SC) held that house name does not amount to affixing the brand name, hence such medicament does not qualify as P & P medicament. He also made submission on limitation. He submits that the appellants after change of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The adjudicating authority held the medicament as a branded goods. Accordingly, decided that the said medicament is a P & P medicament, only on the ground that the name of the medicament is suffixed with ASA, which is a brand name of the appellants. On consideration of the detailed submission made by the Ld. Counsel, we found that "ASA" as an abbreviation to the name "Acetyl Salicylic Acid" is universally used. The Ld. Counsel referred to various literatures, books, dictionaries, etc. wherein the ASA stands for "Acetyl Salicylic Acid" and universally used in connection with the said name. The extracts of the said literature are reproduced below: 4.1 From the above various literatures/authorities, it can be seen that "ASA" is used as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e USA and j) The State Pharmacopoeia of the USSR 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 or mark with or without any indication of the identity of that person. 4.2 The case of the department is that the name, i.e. "ASA" is a brand name of the appellant. On reading of the above definition of P & P medicament, to qualify med ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent Himalaya Drugs whether entitled to use the same name, i.e. "Liv-T". The Hon'ble Court held that Liv is an abbreviation of organ liver. Therefore, it is a generic name and cannot be claimed as a trade mark by a particular person. We find that the ratio of this judgement is applicable in the facts of the present case also. As per the observation made hereinabove, we are of the clear view that the name of the medicament, i.e. "Acetyl Salicylic Acid" Tablets IP 50 MG "(ASA)" is not a brand name and it is a generic name therefore, it does not fall under the definition of P & P medicament. Accordingly, classification claimed by the appellant as medicament other than P & P under Chapter Heading 3003.20 is held to be correct. As regard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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