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TMI Blog2001 (10) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... atent or proprietary) other than those which are exclusive of ayurvedic, unani, siddha, homoeopathic or biochemic systems. These products carry nil rate of duty. The classification lists were approved. The notice issued to the manufacturer, its managing director and marketing director proposed that the product was correctly classifiable under sub-heading 10 of heading 30.03 as a patent or proprietary medicaments, demanded the duty payable thereby and proposed penalty on the manufacturer and these two employees. 2.In the common order impugned in the appeals before us, the Commissioner has confirmed the classification of the products under sub-heading 10 and demanded duty consequently payable and imposed penalty on the company and its two em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in note 2 to Chapter 30. The Commissioner has advanced two reasons for distinguishing the Supreme Court judgment and finding inapplicable to the facts before him. The first is that "there is a evidence with the department that the assessee was projecting the goods as P&P for the purpose of marketing, whereas for the purpose of availing exemption, they had declared the same as generic medicine". The second was that the word 'Astra' which the Supreme Court found the house mark of Astra Pharmaceuticals was not a trade mark, whereas "Wyeth" was a registered trade mark of Wyeth Laboratories Ltd. 5.The basis for the first reason that the advanced is that the manufacturer did not have any physician sample of prednisolone tablets. The physic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of all products both the product mark and house mark will appear side by side on all the labels, cartons etc. The house mark serves as an emblem to project the image of the manufacturer generally. It then concluded that the word "AP'' and "Astra" on the container on the packaging was used to project the image of the manufacturer generally. It did not establish any relationship between the mark and the medicine. 8.The Supreme Court's judgment does not disclose to us any finding by it that the name "Astra" was not a registered trade mark. It does not appear to be relevant whether the product is registered or not. The reasoning behind the Supreme Court judgment is that the house mark by itself is not sufficient to establish the relati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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