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TMI Blog2001 (5) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... ded medicine under CSH No. 3003.31 and cleared for home consumption at nil rate of duty, whereas the Department has alleged that the product is branded ayurvedic medicine, which required to be classified under CSH No. 3003.39 which attracts Central Excise duty @ 8%. A SCN dated 14-5-1998 was issued to the appellant asking them as to why (1) The Central Excise duty not paid to the tune of Rs. 3,32,459/- should not be recovered from them under Rule 9(2) of C. Ex. Rules, 1944 read with extension provision of Section 11A of C. Ex. Salt Act, 1944. (2) The penalty should not be imposed on them under Rule 173Q of C. Ex. Rules, 1944 for violation/contravention of Rules 9(2), 173B, 173F of C. Ex. Rules, 1944 read with Section 11A of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opoeial name, for example, 20% dextrose injection, but the label on the container also carries a monograph of the manufacturer, such as AP-Astra Monograph is only identifying the manufacturer namely, M/s. Astra Pharmaceuticals Pvt. Ltd. In such cases, the medicine is not considered as a patent or proprietary medicine. They submit that Charak is their corporate name. They have adopted Charak as a housemark. Charak is not adopted as a means for identifying honey, processed by them. On identical facts, the Supreme Court held in Astra Pharmaceuticals Pvt. Ltd. v. Collector [1995 (75) E.L.T. 214 (S.C.)] that, as observed in M/s. Indo-French Pharmaceutical Company v. U.O.I. [1978 (2) E.L.T. (J 478)] the symbol, etc. should be such as woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be classified in Chapter 4 as it is classified in Customs Tariff and HSN. This plea has been taken before the adjudicating authority also. 3. I have gone through the order-in-original, appeal petition, submissions made at the time of personal hearing and other connected papers carefully. The appellants classified their product Honey claiming it to be ayurvedic unbranded medicine falling under CSH 3003.31 chargeable to nil rate of duty, while the department sought to classify the product under CSH No. 3003.39 chargeable to duty @ 8% Adv. on the grounds that it is a branded ayurvedic medicine. The adjudicating authority confirmed the demand on the ground that the CHARAK is a specified trade mark used by the appellant and therefore th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is received from apiaries in drums and is packed, after minimal processing, into bottles for sale. The appellants have all along stated that the name CHARAK used by them with the product is not a brand name or a trade name, but it is their housemark. They have stated that it is their corporate name and is used on all their products. The Apex Court s case referred to by the appellant i.e. Astra Pharmaceuticals Pvt. Ltd. v. Collector [1995 (75) E.L.T. 214 (S.C.)] is relevant. The appellants use of the name CHARAK does in anyway make it as a branded product and much less a P or P medicament of Chapter Heading 3003.39. Honey manufactured by various manufacturers is available in the market under their own housemark. In fact, honey is a natur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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