TMI Blog1984 (8) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... 1974, a show cause notice was issued to them by the Assistant Collector of Excise and Customs, whereby he proposed to classify Handyplast under Item 14E on analogy of Belladona plaster and required the petitioners to pay the differential duty under Rule 10A from 1967 onwards. The petitioners replied to the said show cause notice on 29th April, 1974 and ultimately, by his Order dated 16th September, 1974, the Assistant Collector withdrew the above-mentioned show cause notice. As a result, no duty was levied on the clearances of Handyplast up to 1st March, 1975 when the residuary Item No. 68 was added to the Excise Tariff. On 6th September, 1975, the Central Board of Excise and Customs issued a show cause notice under Section 35A of the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the Act') proposing to review the aforesaid Order dated 16th September, 1974 passed by the Assistant Collector of Excise and Customs on the grounds that medicated dressings were to be classified under Item 14E as they had therapeutic properties. The petitioners replied to the said show cause notice on 6th November, 1975 contending that Handyplast are products similar to those commerciall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es on furnishing full Bank Guarantees. The Order was passed by the Senior Technical Officer. Similarly, on 9th August, 1981, further ex-parte Order of stay of past clearances on furnishing full Bank Guarantee was passed by a subordinate officer. On account of all these facts, the petitioners filed the present Writ Petition in this Court challenging the aforesaid Orders and show cause notices. 3. The respondents filed their return, their case being, in short, that after all whatever is the technical meaning of the product Handyplast, the fact remains that the petitioners themselves had advertised that the said product is a medicated one and therefore, it was not open to them to challenge now that the same product is not falling under Item 14E of the Tariff. 4. The petition falls thus within a narrow compass and the short question that falls for the determination of the Court is whether the product Handyplast is a drug or a medicinal preparation falling under Item 14E of the First Schedule of the Tariff for purposes of duty. 5. Before addressing ourselves to this question, it is expedient to deal with the preliminary point raised by Mr. Patkar, learned counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex-parte orders of stay and, at the same time, demanded that the petitioners should give full Bank Guarantee for the levy demanded. The revision application filed by the petitioners was, therefore, pending for more than three years at the time of filing of the Writ Petition. In the circumstances, therefore, it becomes clear that, though the petitioners had availed themselves of the statutory remedy, the fact remains that the concerned authority had not expedited the matter as ought to have done and has not yet fixed a date for the hearing. In the meanwhile, the concerned authority went on issuing show cause notices and making demands for full Bank Guarantees in respect of the duty allegedly due by the petitioners. In these circumstances, the statutory remedy had not given any redress to the grievances of the petitioners and the facts are such that they cannot reasonably expect the revision filed by them to be disposed of in a short time. The very circumstances that instead of disposing the revision application, the concerned authority had been issuing fresh show cause notices, contribute to fortify the impression that the petitioners might have had that their revision will not be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief to them and becomes too dilatory. We may also refer to the case of L. Hirday Narain v. Income-tax Officer, Bareilly, AIR 1971 S.C. 33 wherein it has been observed that when an alternative remedy exists and the High Court entertains a petition and gives hearing on merits in spite of such alternative remedy having been availed of, the petition cannot be rejected on the ground that a statutory remedy was not availed of. In our case, the Writ Petition was duly admitted and Rule was issued. Hearing on merits was fixed and in these circumstances, it appears to us that the aforesaid ruling of the Supreme Court in the case of L. Hirday Narain squarely applies. Thus, in our view, the preliminary point raised by the learned counsel for the respondents to be rejected. 7. Reverting now to the main question before us, namely whether the Leukoplast product is a drug or a medicinal preparation, falling under Item 14E of the First Schedule of the Act, it will be convenient to advert to the said Item. Item 14E of the First Schedule reads as under :- "Patent or proprietary medicines not containing alcohol, opium, Indian hemp or other narcotic drugs or other narcotics other than those medi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in order to make it fall under Item 14E of the First Schedule of the Act. 9. The learned counsel for the petitioners submitted that the product Handyplast does not have any medicinal qualities and does not constitute a drug or medicinal preparation within the meaning required to make it fall under Item 14E of the First Schedule. It is his case that the Handyplast is merely a strip surgical dressing which is used only for protecting or dressing small wounds, boils and like things. He submitted that the technical meaning of the said strip surgical dressings, as well as its meaning in the trade, is clearly that it is not a drug or medicinal preparation. He invited our attention to the definitions given to such dressings in the Pharmaceutical Codex incorporating the British Pharmaceutical Codex (llth Edition), at pages 891, 896 and 897. He also invited our attention to the affidavits filed by the petitioners along with the petition at Exhibits C, D and E. The said affidavits had been sworn by two Doctors and by one Chemist and they stated that products like Handyplast are purely surgical strip dressings meant only for the protection and covering of wounds, boils and small bruises. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stic Adhesive Wound Dressing'. It is said that such elastic adhesive wound dressing consists of a fabric pad, comprising a piece of lint wrapped in muslin bandage, fixed to a rectangular piece of extension plaster so as to leave a margin of adhesive surface surrounding the pad. The elasticity of the plaster is undirectional across the narrow width of the pad. The pad and adhesive margin are covered with a protector, which is removed before application. The pad is medicated with an antiseptic and dyed yellow, if necessary, with a non-toxic dye; the antiseptic and dye may be omitted if the dressing is supplied effect. It is further said that such dressings are used as a protecting cover for small wounds. A sample of the Handyplast product manufactured by the petitioners had been produced by the learned counsel for the petitioners for our examination. We find that the said product squarely falls within the definition and description of 'Elastic Adhesive Wound Dressing' and therefore; we have no hesitation in holding that the Handyplast is nothing but an elastic adhesive wound dressing. Now, it is clear that such kind of elastic adhesive wound dressings are not used for purposes of hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd not on the advertisement gimmick of the advertiser. The same view was also taken in Subhash Chandarnishat v. Union of India and another, 1979 E.L.T. 212, and by a Division Bench of the Kerala High Court in the case of The Deputy Commissioner of Agricultural'Income-tax and Sales-Tax (Law) Board of Revenue (Taxes), Ernakulam v. Union Carbide India Limited, Madras-2, 1976 Sales Tax Cases (Vol. 38), page 198. We do not see any reason whatsoever to depart from the view taken by this Court and by the Kerala High Court in the aforesaid cases. The learned counsel for the respondents had not, in fact, advanced any argument or any sound reason to make us hold a different opinion or at least consider it possible to take a different view. In any case, as we already observed, advertisements are made to attract the consumers and had nothing to do with the classification of product for the purposes of levying duty. Thus, the fact that the petitioners had stated in their advertisements that Leukoplast helps to heal a wound is of no importance and does not advance in any manner the case of the respondents. 13. The learned counsel for the petitioners further contended that the Central Board of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a specific or local systemic effect, being purely surgical strip dressings meant only for the protection and covering of wounds, boils and small bruises, we find that the said product is understood both technically and in commerce and in the trade as a mere surgical dressing and not a drug or medicinal preparation. In the Commissioner of Sales Tax, Madhya Pradesh, Indore v. M/s. Jaswant Singh Charan Singh, AIR 1967 S.C; 1454 it has been - observed that :- "A sales tax statute is being one levying a tax on goods must in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term" The same view was reiterated by the Supreme Court in Union of India and others v. Gujarat Woollen Felt Mills, 1977 E.L.T. (J 24) (S.C.) = AIR 1977 S.C. 1548. It was observed in that case that the meaning of the product as commercially understood is the only meaning relevant for the purposes of Entries in the Tariff. In the case at hand, we already observed that technically the Handyplast does not constitute a drug or a medicinal preparation. We, further observed that it appears, also commercially, the product is not considered as a drug or medicinal prepara ..... X X X X Extracts X X X X X X X X Extracts X X X X
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