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German Remedies Ltd., G.C. Madhom Versus Commissioner of Central Excise, Mumbai

2017 (11) TMI 239 - CESTAT MUMBAI

Classification of goods - medicaments - classified under CTH 3003.20 or otherwise? - whether the medicament of the appellants sold under the name Acetyl Salicylic Acid Tablets IP 50 MG (ASA) is a P & P medicament or a medicament other than P & P medicament? - Held that: - ASA is used as an abbreviation for "Acetyl Salicylic Acid", and the same is commonly used, in such case the appellant has no proprietary right on the word ASA, which stands for Acetyl Salicylic Acid - On reading of the definiti .....

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ng the name Acetyl Salicylic Acid, the same cannot be considered as a brand name of the appellant. Moreover, as per the labels of various other manufacturers submitted by the appellant, it is observed that abbreviation ASA is being used by various other manufacturers for the reason that any individual person has sole right on such name, i.e. ASA. - The name of the medicament, i.e. Acetyl Salicylic Acid Tablets IP 50 MG (ASA) is not a brand name and it is a generic name therefore, it does not .....

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And Mr. Raju, Member (Technical) Shri.J.C. Patel, Advocate for appellant Shri. S.V. Nair, Asst. Comm. (Ar) for respondent ORDER Per: Ramesh Nair 1. The fact of the case is that the appellants are engaged in the manufacture of medicaments. One of the medicaments manufactured by the appellant is Acetyl Salicylic Acid Tablets IP 50 MG (ASA). Prior to April 1998 the appellant was clearing the said medicaments in a packing which bears a monogram/device containing the letters GRASA, which were interwo .....

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name. Accordingly, the appellant with effect from April 98 discontinued the use of the said device/monogram on the packing of the said medicament and started marketing the same under the generic name only, namely Acetyl Salicylic Acid with the abbreviation (acronym) thereof ASA written in bracket in simple capital letters. Accordingly, the appellant treated this medicament as other than patent or proprietary medicament and filed a classification declaration of such goods under Chapter Heading 30 .....

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mand of differential duty was raised against the appellant by issuance of show-cause notice dated 30/01/2000 for the period January to February 2000 and show-cause notice dated 30/04/2001 for the period April 1998 to December 1999. The adjudicating authority confirmed the demand by adjudication order, therefore the appellants are before us. 2. Shri J.C. Patel, Ld. Counsel appearing on behalf of the appellant submits that before April 1998, the appellant was indeed using the brand name, which was .....

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using the brand name and started marketing the goods under generic name, i.e., "Acetyl Salicylic Acid Tablets IP 50 MG (ASA)". He submits that the mention of "ASA" is not a brand name as the same is abbreviation of generic name, i.e., "Acetyl Salicylic Acid". He submits that the abbreviation ASA is universally used for the medicament "Acetyl Salicylic Acid". In this regard he referred to various books, encyclopedia, dictionary, literatures, journals, and a .....

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hat as per the various authorities as mentioned herein above, ASA is a name commonly used by any person, the appellants have no right as a proprietor or otherwise to use the said name. Therefore, the medicament does not cover under P & P medicament. Since the medicament is sold in the generic name, i.e. Acetyl Salicylic Acid with its abbreviation. It is a generic medicament and not P&P medicament. In support he placed reliance on the Delhi High Court judgement in the case of S.B.L. Ltd. .....

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e product become branded. In this regard he submits that firstly the medicament was marketed as "Acetyl Salicylic Acid Tablets IP 50 MG (ASA)". The word 'GR' was mentioned with the name of the company i.e., German Remedies Ltd., which is nothing but a house name, the same is not a brand name. The word "GR" is not suffixed or prefixed with the name of the medicament appeared on package of the medicament. As regards the use of house name, the Hon ble Supreme Court in th .....

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he generic medicaments, i.e. "Acetyl Salicylic Acid Tablets IP 50 MG (ASA)". Therefore, the entire facts related to the change of a package of the product and classification was within the knowledge of the department right from 02/04/1998. He further submits that the first show-cause notice for the period January 2000 to February 2000 was issued on 30/10/2000 and subsequent to this show-cause notice for the extended period, i.e. April 1998 to December 1999 was issued on 30/04/2001. Onc .....

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4. We have carefully considered the submissions made by both sides. We find that the short issue involved is whether the medicament of the appellants sold under the name "Acetyl Salicylic Acid Tablets IP 50 MG (ASA)" is a P & P medicament or a medicament other than P & P medicament. The adjudicating authority held the medicament as a branded goods. Accordingly, decided that the said medicament is a P & P medicament, only on the ground that the name of the medicament is suff .....

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he above various literatures/authorities, it can be seen that "ASA" is used as an abbreviation for "Acetyl Salicylic Acid", and the same is commonly used, in such case the appellant has no proprietary right on the word "ASA", which stands for "Acetyl Salicylic Acid". The definition of P & P medicament, which is provided under Note (i) and (ii) of Chapter 30 of CETA reads as under: 2. For the purposes of the heading No.30.03, (i) Medicaments' means .....

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nal preparation, in whatever form, 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, namely: a) The Indian Pharmacopoeia b) The International Pharmacopoeia c) The National Formulary of India d) The British Pharmacopoeia e) The British Pharmaceutical Codex f) The British Veterinary Code .....

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trade between the medicine and some person, having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person. 4.2 The case of the department is that the name, i.e. "ASA" is a brand name of the appellant. On reading of the above definition of P & P medicament, to qualify medicament as P & P, either name of the medicament should be other than the name specified in a monogram pharmacopoeia such as IP, BP, USP .....

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cetyl Salicylic Acid" and commonly used by anybody for referring the name "Acetyl Salicylic Acid", the same cannot be considered as a brand name of the appellant. Moreover, as per the labels of various other manufacturers submitted by the appellant, it is observed that abbreviation "ASA" is being used by various other manufacturers for the reason that any individual person has sole right on such name, i.e. "ASA". In the judgement cited by the Ld. Counsel in the .....

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