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TMI Blog2017 (11) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... o be correctly taxable under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (for short "M & TP Act"). The brief background of the facts are necessary. 2. The Petitioners are carrying on business of manufacturing medicinal preparations and for the purpose of present petition, the product bearing the name "Lobain" is concerned. 3. The Petitioners are registered with Central Government department and have been granted licenses for manufacturing the product Lobain. The Petitioners were paying Central Excise Duty to the Central Government on the said product as according to the Petitioners, the product was not a narcotic drug and did not fall under the definition of "Narcotic Drug" as defined under Section 2- (h) of the M & T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the Central Government under Rule 128 of the MTRP (Excise Duties) 1956. The Petitioners thereafter preferred a revision application before Respondent no.5 on 10th November 1998. The impugned order dated 13th April 1999 was passed by Respondent no.5 after hearing the Petitioners and by which the revision application was rejected and the stay initially granted by Respondent no.5 was vacated. Hence this petition. The Petition came up before this Court in June, 1999 when this Court passed an interim order dated 21st June, 1999 by which the Petitioners were directed to pay duty at the rate of 20% ad valorem to the State Government under M & TP Act and not the authorities under the Central Excise Act, 1944, provided they resumed manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been held in the said decisions that the subject formulations of the Petitioners containing less than 135 mgs i.e. 65 mgs of the Dextropropoxyphene are excluded from being classified as Narcotic Drug under Section 2 (h) of the M & TP Act. He has, therefore, contended that this petition should also be disposed off on the same terms. 5. We have carefully considered the submissions. We find that the issue arising in this Petition has been dealt with and has answered in favour of the Petitioners in M/s. USV Ltd. (Supra) and followed in Macleods Pharmaceuticals Ltd. (Supra). We are of the view that the impugned order is erroneous as was similarly been held in the said decisions of this Court. The substances contained less than 135 mg of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in (AIR 1971 SC 378) was on totally different issue where the quantity of Dextropropoxyphene or any similar such product was not in issue. The issue in that case was, whether the medicinal preparations contain alcohol or not. The quantity of alcohol was not subject matter to adjudicate. In the matter in hand, the quantity of Dextropropoxyphene is most relevant factor to decide, whether the product can be called as narcotic drug or narcotic under the said Act and as already seen above, the product of the Petitioners cannot be considered as containing narcotic drug or narcotic. 6. We find that from a plain reading of the Notification dated 14th November 1985, wherein the subject preparation viz. Dextropropoxyphene has been referred, it is cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n itself be not included as a narcotic drug or narcotic. 8. We accordingly pass the following order disposing of this Petition:- (a) We hold and declare that the subject formulations of the Petitioners containing less than 135 mgs viz 65 mgs of Dextropropoxyphene are excluded from being classified as narcotic drug under the M & TP Act. (b) We quash and set aside the impugned order of Respondent no.5 dated 13th April 1999 as well as the order of Respondent no.4 dated 20th October 1997 and order passed by Respondent no.3 dated 1st July 1998. (c) The Petitioners are permitted to withdraw the amounts, if deposited with the Prothonotary and Senior Master of this Court, pursuant to the interim order dated 21st June 1999 together with interest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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