TMI Blog1990 (9) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal involves the question whether the products, Bifuran Supplement, Neftin-50 and Neftin-200, manufactured by the appellant, are chargeable to excise duty as 'patent or proprietary medicines' under Item 14E of the First Schedule to the Central Excises and Salt Act, 1944, (hereinafter referred to as the 'Excise Tariff) or the said products are exempted from excise duty under Notification No. 6/84 dated February 15, 1984, as animal feed supplement. At the relevant time Item 14E of the Excise Tariff was as under : "14E 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, Sidha or Homeopathic. Explanation I - 'Patent or Proprietary Medicines, 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was in the same terms as in the previous notification dated February 28,1982. The notification dated November 1,1982 was amended by notification dated February 15, 1984 whereby entry at S. No. 10 in the Schedule annexed to the notification dated November 1,1982 was substituted by the following entry: "Animal feed including compound live stock feed, animal feed supplements and animal feed concentrates." By the aforesaid notification dated February 15,1984, the following explanation was also inserted: "Explanation II - For the purposes of this notification, the expression - (i) "animal feed supplements" means an ingredient or combination of ingredients, added to the basic feed mix or parts thereof to fulfil a specific need, usually used in micro quantities and requiring careful handling and mixing; (ii) "animal feed concentrates" means a feed intended to be diluted with other feed ingredients to produce complete food of optimum nutrient balance." 4. The appellant carries on business as manufacturer of pharmaceuticals. Among the products manufactured by it are Bifuran Supplement, Neftin-50 and Neftin-200. Prior to the notification dated February 15,1984 the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Item 14E and that effective from February 8,1986 the said products are classifiable under sub-heading 3003.9. The said order was set aside by the Collector of Central Excise (Appeals) by his order dated May 28,1987, who held that the said products are animal feed supplements and these products merit classification only under the erstwhile Tariff Item 68 and not under Tariff Item 14E. Aggrieved by the said order of the Collector (Appeals) the Department filed an appeal before the Customs, Excise Gold Control Appellate Tribunal, which was allowed by order dated 29-6-1989. The Tribunal held that the aforesaid three products manufactured by the appellant are patent and proprietary medicines as defined in Tariff Item 14E inasmuch as they have therapeutic and preventive use in respect of the specific ailments in animals. The Tribunal was also of the view that if the products satisfy the requirements of TI 14E there was no question of considering their classification under Item 68, which is a residuary item. Aggrieved by the said order of the Tribunal the appellant has filed this appeal under Sec. 35L of the Central Excises Salt Act, 1944. 5. During the course of arguments S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a finding of fact based on the materials placed before the excise authorities and the said finding is not normally open to challenge in appeal before this Court. The submission of the learned Additional Solicitor General is further that in the present case it cannot be said that the aforesaid products manufactured by the appellants can be regarded as animal feed supplement as defined in Explanation II, inserted by notification dated February 15,1984 in the notification dated November 1,1982. 8. In the instant case we are not required to consider the scope of two competing entries of the Excise Tariff because Item 68 was a residuary entry which dealt with all other goods not elsewhere specified. A product which is found to be covered by the other items of the Schedule of the Excise Tariff would be outside the ambit of Item 68. Therefore, the primary question to be considered is whether the products in question, namely, Neftin-50 and Neftin-200, are patent and proprietary medicines falling within Item 14E. 9. In this context we may refer to the decision of this Court in Duhlop India Ltd. v. Union of India and Others (1976 (2) S.C.R. 98) where the question was whether V.P. Latex m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... histomoniasis." "For histomoniasis in poultry, the usual prophylactic dosage is 100 ppm in the feed and the usual therapeutic dosage is 400 ppm in the feed for 10 days." (P. 376). (c) Scientific Foundations of Veterinary Medicine, 1980 Edn.: "Bloody or cecal coccidiosis is an acute hemorrhagic disease and is the most severe form of coccidiosis in chickens." "Furazolidone is fed continuously at 0.0055% in the feed as an aid in the prevention of coccidiosis caused by E. tenella, E. necatrix, and E. acervulina. Furazolidone can also be used for the treatment of these same coccidia species when fed at 0.011% for 5 to 7 days." (P. 193). (d) Medicines and Poisons Guide, 2nd Edn. 1980, prepared by the Law Department of Pharmaceutical Society of Great Britain : "Furazolidone is a prescription only veterinary drug and by virtue of an entry in the medicines order (prescription only) may be sold or supplied to the public only on a practitioner's prescription." (P. 59) 12. These observations indicate that Furazolidone is an antibacterial, antifungal and antiprotozol compound and it is used for prevention and treatment of coccidiosis as well as histomoniasis in poultry. From this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Once it is found that Neftin-50 and Neftin-200 are medicines for use for treatment and prevention of ailments in poultry they have to be regarded as patent and proprietary medicines chargeable to excise duty under Item No. 14E and the question whether the said products fall in the residuary entry at Item 68 does not arise. 14. The exemption from payment of central excise duty which has been granted under notification dated November 1,1982, as amended by notification dated February 15,1984, is confined in its application to goods specified in the Schedule annexed to the said notification which fall under Item 68. The said notification does not grant exemption in respect of a product falling in any other entry of the excise tariff. It cannot be construed as transferring a product from an entry other than Item 68 to Item 68. The insertion of animal feed supplement in the Schedule to the Notification dated November 1,1982, by the Notification dated February 15,1984, would not mean that a product which was liable to payment of central excise duty under Item 14E prior to such insertion would cease to be so liable and would become exempt from such payment of duty by virtue of this noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has passed orders discriminating between the appellant and other producers of similar products. The grievance of the appellant is that on account of difference in the interpretation of notification dated February 15,1984, amending notification dated November 1,1982, by the excise authorities in other regions while the appellant is being required to pay excise duty on Neftin-50 and Neftin-200 manufactured by it other manufacturers of similar products in other regions are enjoying exemption from payment of such duty. The appellant, in substance, wants that because other producers have been granted exemption, though wrongly, the same exemption should be extended to it. In our opinion this is impermissible. The appellant cannot obtain such an exemption in disregard of the law by invoking the right to equality before the law and equal protection of the laws guaranteed under Article 14 of the Constitution. A similar question arose before this Court in Narain Dass v. The Improvement Trust, Amritsar Anr. (AIR 1972 S.C. 865). In that case it was contended that while administering Section 56 of the Punjab Town Improvement Act, 1922, there had been hostile discrimination against the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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