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TMI Blog2024 (7) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Paragraph 2(y), would include not only a dealer , as defined in Paragraph 2(d), but also a stockist appointed by a manufacturer or an importer, who would fall within the ambit of a distributor under Paragraph 2(e). There is, thus, no clear and absolute delineation amongst the definitions. However, the so-called distinction in the defined categories was the basis for the claim of the appellant that it could not be proceeded against under Paragraph 13 of the DPCO. It asserted that it was not a manufacturer or an importer or a distributor and, therefore, it stood beyond the grasp of Paragraph 13. Though an attempt was made by the learned counsel for the appellant to enlarge the scope of this appeal by questioning the very validity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Augustine George Masih , JJ. For the Appellant : Mr. Ashish Verma, Adv. Mr. Nikhil Manjithia, Adv. Mr. Kartikey Bhargava, Adv. Mr. Birendra Kumar Mishra, AOR Ms. Poonam Atey, Adv. Mr. Sirajuddin , Adv For the Respondent : Mr. Gurmeet Singh Makker , AOR JUDGMENT SANJAY KUMAR , J 1. Having failed before the Delhi High Court at both levels, the appellant approached this Court. 2. Noting that the appellant had already paid a sum of ₹1.25 crores towards the demand made by the respondent authorities, this Court directed status quo to be maintained in relation to recovery of the remaining sum payable by the appellant, vide order dated 10.11.2014. 3. Challenge in W.P.(C) No. 10700 of 2005, filed by the appellant before the Delhi High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cover Overcharged Amount and it reads as follows: Notwithstanding anything contained in this order, the Government shall by notice, require the manufacturers, importers or distributors, as the case maybe, to deposit the amount accrued due to the charging of prices higher than those fixed or notified by the Government under the provisions of Drugs (Price Control) Order, 1987 and under the provisions of this Order. Certain definitions in the DPCO may be noted at this stage. Paragraph 2(d) of the DPCO defines dealer as under: Dealer means a person on the business of purchase or sale of drugs, whether as a wholesaler or retailer and whether or not in conjunction with any other business and includes his agent. Paragraph 2(e) of the DPCO defines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erly before the Delhi High Court. Similarly, we find that the issue as to whether computation of the demand was erroneous in the context of Paragraph 19 of the DPCO was raised by the appellant only during the course of arguments before the Division Bench of the High Court. Noting this, the Division Bench specifically recorded that such a plea had been made by the appellant before it for the first time and that the writ petition as well as the memorandum of appeal were bereft of any pleadings to that effect. Therefore, the appellant cannot be permitted to raise that plea before us at this stage. 8. Further, we do not even find a specific ground having been raised on that issue. The learned counsel for the appellant would refer to Grounds H a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eplies filed by the appellant in response to the notices issued by the NPPA categorically manifested that the appellant admitted purchase of the drug from the manufacturer itself. Thus, in terms of its own admissions in its replies, the appellant had direct contact with the ostensible manufacturer. Be it noted that a dealer , as defined in the DPCO, would be a wholesaler or retailer who undertakes the purchase or sale of the drug while a distributor , as defined thereunder, would include a distributor of the drugs or a stockist appointed by a manufacturer. Though the definition of wholesaler under Paragraph 2(y) of the DPCO blurs the distinction between a dealer and a distributor , by including a dealer as well as a stockist appointed by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the distribution of the drug formulation. Significantly, before the Division Bench of the High Court, the appellant came up with a new version that it had purchased the drug formulation from Delta Aromatics Pvt. Ltd. from September, 1999. This story was not accepted by the Division Bench as it was an altogether new story that was introduced afresh. 13. Given its own inconsistent versions and in the absence of a firm factual foundation being built up by the appellant with proper documentation as to its status, it was not open to it to baldly claim that it was not a distributor but only a dealer . 14. We, therefore, find no error committed by the High Court in rejecting the claim of the appellant. The appeal is devoid of merit and is acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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