TMI Blog1976 (9) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... that those medicinal preparations were not liable to excise duty and that the demand of excise duty under that notice was time barred under Rule 10 of the Central Excise Rules, 1944 (shortly called the Rules). After considering the aforesaid reply, the Assistant Collector, Central Excise, Allahabad held that the medicinal preparations in question were liable to excise duty since they had "their Brand Name, Trade Mark, Symbol, Monogram and also their firm's Name". 3. In the appeal preferred by the petitioner, the Appellate Collector, while upholding the order of the Assistant Collector, observed inter alia, as follows: "Examination of the labels borne on the containers in which the medicines were packed clearly showed that they bore a symbol or a monogram label which establishes a connection in course of trade between the medicines and the manufacturer having the right either as proprietor or otherwise to use the symbol or monogram with or without any indication of the identity of its manufacturer. Also the name of the manufacturer was given prominently under a colour scheme to establish the proprietary nature of the medicines. Under the circumstances, the medicines manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that since no assessment had been made previously on the medicines in question, the impugned demand came within the ambit of Rule 10A and not Rule 10 of the Rules and that hence there was no time limit for making that demand. 7. Before dealing with the rival contents of learned Counsel, we shall set out the relevant provisions of the Central Excise Act (shortly called the Act), and the rules under the Drugs and Cosmetics Act, 1940. Sub-section (1) of Section 3 of the Act provides, inter alia, that duties of excise shall be levied and collected in such manner as may be prescribed on all excisable goods which are produced or manufactured in India, as, and at the rates, set out in the First Schedule to the Act. Item No. 14E of the First Schedule reads : "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 Siona or Homoeopathic. Explanation I.- Patent or proprietary medicine 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n block letters but in calligraphic letters. On the left hand bottom corner of the label, is a symbol consisting of a circle within which the name 'Ramsey' is printed both vertically and horizontally. 9. Sri Kacker contended that under Rule 88 of the Drugs Rules there is a statutory obligation on every manufacturer of a medicine to display on the container thereof the name of the manufacturer of such medicine and that the mere fact that the name of the petitioner company as the manufacturer of the medicines in question, has been printed on the label on the containers of such medicines, would not show any connection in the course of trade between those medicines and the petitioner as the manufacturer thereof. Sri Kacker contended that neither the name 'Ramsey' written in calligraphic letters nor the circle within which the name 'Ramsey' was printed vertically and horizontally would indicate any distinctiveness about those medicines which bear the common names contained in the India Pharmacopoeia. It was also contended by him that any distinctiveness of the mark used on the container of the medicine should be in regard to the medicine itself and not in regard to the name of the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Marks Act, 1958 (1974 Edition) at page 33 is apposite: - "The name of a Company, individual or firm, if represented in a special or particular manner is considered prime facie distinctive. The question, however, arises what is meant by "special or particular manner". Obviously, the name written in ordinary tape or block letters cannot be considered to be represented in a special or particular manner. Ordinary handwriting also cannot be considered to be a representation of the name in a special or particular manner". The learned author has proceeded to state at page 56 of his book : "Geometrical shapes are not necessarily unregistrable. The question in each case must be whether the mark is sufficient distinctive and the Registrar must take into consideration the precise nature of the share and the particular way it is represented." 12. Thus the calligraphic types used for the name 'Ramsey' as distinct from the ordinary block letters used for the remaining portion of the name and address of the manufacturer, together with the geometrical design of the circle in which the word 'Ramsey' is printed both vertically and horizontally, constitutes a distinctive design so as to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount so determined within ten days from the date on which he is required to pay such amount or within such extended period as the Assistant Collector of Central Excise may, in any particular case allow." Rule 10A of the Rules reads : "10A. Residuary powers for recovery of sums due to Government. - (1) Where these rules do not make any specific provision for the collection of any duty if the duty has for any reason been short levied or any other sum of any kind payable to the Central Government under the Act or these Rules, the proper officer may serve a notice on the person from whom such duty deficiency in duty or sum is recoverable requiring him to show cause to the Assistant Collector of Central Excise why he should not pay the amount specified in the notice. (2) The Assistant Collector of Central Excise after considering the representation, if any, made by the person on whom notice is served under sub-rule (1) shall determine the amount of duty, deficiency in duty or sum due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined within ten days from the date on which he is required to pa ..... 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