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TMI Blog1994 (12) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the appeal is being allowed on merits the question whether the Revenue was justified in reopening the case under proviso to Section 11A of the Act is rendered academic and is not necessary to be decided. - 3403 (NM) of 1987 - - - Dated:- 16-12-1994 - R.M. Sahai and K. S. Paripoornan, JJ. [Judgment per : R.M. Sahai, J.]. - This appeal under Section 35L of the Central Excises Salt Act, 1944 (`Act' for short) raises two important questions of law, one relating to construction of Item No. 14E of the Central Excise Tariff levying duty on Patent and Proprietary medicines and other the scope of proviso to Section 11A of the Act. 2. For purposes of duty patent and proprietary medicines were classified in relevant period in two broa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise 14E Patent or Proprietary Medicines not containing alcohol, opium, Indian Hemp or other narcotic drugs or other narcotics other than those medicines which are exclusively ayurvedic, unani, sidha or homoeopathic 12 1/ 2 Adv. 10% of the basic duty chargeable Explanation : I `Patent or Proprietary medicines' means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals, which bears either on itself or on its container or both, a name which is not specified in a monograph in a Pharmacopoeia Formulary or other publications notified in this behalf by the Central Government in the Official Gazette, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in pharmacopoeia are identified by a monograph or a symbol, signature or invented words so as to establish a relationship between the producer and the medicine. To put it simply, all those patent and proprietary medicines which are mentioned in pharmacopoeia are excluded from the entry unless the manufacturer or producer by use of any distinctive mark establishes connection with the medicine. In other words, all those medicines which either bear a name which is not specified in the Pharmacopoeia or which is a brand name and that brand name is used by any symbol, monogram or signature so as to establish a relationship between the medicine and the person manufacturing or selling it then such patent or proprietary medicine would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer and the medicine then the medicine manufactured by him could be included in the Explanation appended to Item 14E. The appellants manufacture 20% Dextrose injections. It is not disputed that 20% Dextrose injections are mentioned in Pharmacopoeia but the appellant has been denied exemption as on the cover it carries the name `AP-ASTRA'. According to the Department, since the medicine is described by a monogram and it established a relation between the manufacturer and the medicine, therefore, it was included in Explanation I to Item 14E. The Tribunal found that letters `AP' do not constitute a monogram because the two letters are not interwoven but they being placed side by side in an artistic manner on the top it made the medici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 677A. House mark and product mark (or brand name). In the pharmaceutical business a distinction is made between a house mark and a product mark. The former is used on all the products of the manufacturer. It is usually a device in the form of an emblem, word or both. For each product a separate mark known as a product mark or a brand name is used which is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In respect of all products both the product mark and house mark will appear side by side on all the labels, cartons etc. Goods are ordered only by the product mark or brand name. The house mark serves as an emblem of the manufacturer projecting the image of the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed that this decision was followed by the Tribunal and since it was based on correct interpretation of Explanation I the appellant was not entitled to any relief. It would be seen that in the decision rendered by the Allahabad High Court it is not clear if the container bore the name of the medicine as well. What has been extracted in the judgment is that the medicine has been manufactured by M/s. Ramsey Pharma Pvt. Ltd. As stated earlier if the container of the appellant would have stated that these were Astra Dextrose injections then it could be said that a relationship between the medicine and the manufacturer was established. The ratio laid down by the Madras High Court is approved as correctly enunciating the scope of Explanation I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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