TMI Blog1989 (6) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... he case are that the respondents manufacture medicines. During the period from 1-3-1978 to 30-6-1979, they effected clearance of certain medicines at nil rate of duty. The pilfer proof caps ( P.P. Caps , for short) fixed to the containers had on them the legend Bengal Chemicals which the Department, construed, rejecting the respondents contention to the contrary, was a brand name rendering the medicines liable to classification and assessment to duty as Patent or Proprietary Medicines under Item No. 14E of the First Schedule ( the CET , for short) to the Central Excises and Salt Act, 1944. According to the Assistant Collector, the respondents had suppressed the fact of registration of the words Bengal Chemical under the Trade Merch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmaceutical Co., Madras v. Union of India and Others -1978 (2) E.L.T. (J 478). 6. We have carefully considered the submissions of both sides. The explanation to Item 14E, CET, defines Patent or Proprietary Medicines as 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 which is a brand name, that is a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eia, formulary etc., or (b) a brand name, that is a name or a registered trade mark etc. These are, to our mind, mutually exclusive clauses. That is to say, if the medicines bear names which are not specified in monograph in a pharmacopoeia, formulary etc., that should suffice to bring them under Item 14E, CET. The clear corollary is that if the medicines bear on themselves or their containers or both names which are specified in a monograph in a pharmacopoeia, formulary etc., they cannot be brought under Item No. 14E. Applying this test alone, the medicines in the present case would be out of the scope of Item No. 14E. 8. Even applying the alternative criterion, we do not think the legend Bengal Chemicals is sufficient to attract the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk, monogram or lable has been used by the manufacturer to indicate that this is a special preparation and not exclusively based on any pharmacopoeia then it can be said that they indicate that the manufacturer has got a proprietary interest in the medicine. The antithesis between the expression a name which is not specified in a monograph in a pharmacopoeia, formula or other publications" and the expression a brand name occurring in the Explanation have to be considered significant. That indicates that if a manufacturer uses a word, symbol, label, monogram etc., apart from a monograph, in a pharmacopoeia, formulary or other publication, then that can be treated as indicating that the manufacturer has a proprietary Interest in the medici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medicines had containers and caps bearing the inscription Dabur , a registered trade mark. The medicinal preparations were Chalmoogre Oil I.P., Caster Oil I.P. and Camphor Oil I.P. The Government of India construed the said registered trade mark as a brand name rendering the medicinal preparations classifiable under Item No. 14E, CET. In coming to this conclusion, the Government felt that the case was distinguishable from the Indo-French Pharmaceutical case (supra) and relied on the Ramsey Pharma Private Ltd. (supra). We do not quite agree with this reading of the Madras High Court judgment which, in our view, squarely applies to the facts of the present case. 12. In the Ramsey Pharma Private Ltd. case, the medicines in question bore na ..... X X X X Extracts X X X X X X X X Extracts X X X X
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