TMI Blog1964 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... ms, and the appeals preferred by the plaintiff company to the Collector of Customs were unsuccessful as the Collector of Customs acting on the instructions of the Central Board of Revenue found that the goods were properly classified under item 28(A) of the I.C.T. because the goods imported were not antibiotics pure and simple but contained other therapeutic ingredients. The Collector of Customs who disposed of the appeals held that the ascorbic acid which was present in Hostacycline injections served two roles, viz. as a buffering agent and also as a substance which has its own therapeutic effect. 2. The defendant's case is that Hostacycline injections are not antibiotics pure and simple as they contain other therapeutic ingredients, that in this case the manufacturers have deliberately added ascorbic acid in large quantities with the intention of the said ascorbic acid having its own therapeutic value, that the preparation in question has therefore been correctly classified under item 28(A) of the I.C.T., that it is for the customs authority to classify the goods under specific items for purposes of levy of duty, that the Sea Customs Act is a complete code in itself providing f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Codex or any other Pharmacopoeia authorised in this behalf by the Central Government after consultation with the Board". 4. The Tetracycline Hydrochloride is an antibiotics falling under clause 28(27) of the Indian Customs Tariff. The Drug is administered orally as capsules or tablets or through injections either intramuscular or intravenous. Each manufacturer uses his own trade name for his drug. The Plaintiff company manufactures the antibiotic under its trade name Hostacycline. In this suit we are not concerned with Hostacyline capsules, but only with Hostacycline injections. Loderle Company has labelled its product of tetracycline Hydrochloride as Achromycin. Lepetit Company has labelled its product of Tetracycline Hydrochloride as Ambramycin. Squibb and Sons have labelled their produce of Tetracycline Hydrochloride as Steclin. Pfizer and Co., has labelled its product of tetracycline hydrochloride as Tetrocyin. 5. The Plaintiff's case is that other brands of tetracycline hydrochloride, viz., Achromycin and Tetrocyin have been classified under item 28(27) of the I.C.T. and duty has been collected on that basis and that Ambramycin injections and Reverin injections which are o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in paragraph 9 of its written statement that identical preparations manufactured by other concerns were not assessed differently under items 28(27) of the I.C.T. is clearly incorrect. But in paragraph 10 of its written statement the defendant has put forward the plea that even if there has been any such classification and assessment as pleaded by the plaintiff it must have been due to inadvertence or mistake and as such it cannot create a right in the plaintiff. Having regard to these inconsistent pleas put forward by the defendant it is difficult to accept the bonafides. It may be that subsequent to Ex. P-41 all brands of Tetracycline Hydrochloride injections are assessed alike under Item 28A of the I.C.T. But there can be no doubt that in 1958 when the suit consignments were imported, there was clearly discri mination against the plaintiff's goods. 6. The customs authorities have classified Hostacycline injections under item 28A of the I.C.T. solely on the ground that ascorbic acid content was high and that is served two roles, viz., as buffering agent and as a substance which gives its own therapeutic effect. This is clear not only from the order Ex. P-4 on the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de) 10 mg. Procaine hydrochloride 30 mg. Magnesium Gluconate. 361 mg. Ascorbic acid U.S.P. 25 mg. Hostacycline intravenous injections have the following composition : Tetracycline Hydrochloride 250 mg. Ascorbic acid 676 mg. The extra Pharmacopoeia by Martindale, Vol. I, 24th Edition, page 1469 shows that in the preparation of injections the proportion of tetracycline hydrochloride and ascorbic acid is 1 : 3 in the case of intravenous injections, and 1 : 2.5 for intramuscular injection. The Hostacycline intramuscular and intravenous injections contain much less ascorbic acid that what is mentioned above. The learned Advocate for the plaintiff company referred to the fact that the ascorbic acid contact in Hostacycline injections is much less than that contained in similar preparations of other manufacturers. 8. The plaintiff company has examined P.W. 1 Dr. K. Sanjivi, a leading Physician of Madras, in support of its case that the ascorbic acid in Hostacycline injections has no therapeutic effect. He deposed that when he prescribed any brand of tetracycline hydrochloride he does not prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracycline hydrochloride 1 and ascorbic acid 4 was suitable for preparing intravenous solutions which were more stable than those prepared from oxytetracycline hydrochloride 1, sodium glycinate 0.9. Thus ascorbic acid is a better stabilising and buffering agent than sodium glycinate. The plaintiff com pany has rightly pointed out in their reply affidavit Ex. P-5 in writ petitions that in the manufacture of a life saving broad spectrum antibiotic like tetracycline hydrochloride, it is essential that every care should be taken to ensure that the highest standards in respect of stability are maintained as otherwise the potency of the antibiotic would be reduced and thus result in inadequate efficacy. If suitable and adequate buffering agents are not added the drug may become misbranded and the plaintiff company may run the risk of prosecution under the Drugs Act. There could therefore be no doubt that the ascorbic acid content in Hostacycline injections is not high and that it has no therapeutic value. 10. The mere fact that an ingredient added solely as a suitable buffering agent may independently have therapeutic action is no ground for holding that it has therapeutic effect when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence Hostacycline intramuscular injections cannot be excluded from item 28(27) of the I.C.T. on that ground. 12. The plaintiff has slated in the reply affidavit Ex. P-3 in the writ petitions that Magnesium Gluconate and ascorbic acid present in Hotacycline intramuscular and intravenous injections serve only the role of buffering agents and they have no therapeutic value. I have already referred to the fact that the only ground on which the defendant classified all other brands of tetracycline hydrochloride preparations under item 28A of the I.C.T. is that the amount of ascorbic acid in the preparation is quite large and served two roles, namely, as a buffering agent and as a substance which gives its own therapeutic effect and not on the ground that it contained Magnesium Gluconate. In the 45th issue of the I.C.T. of the year 1958 the name of the article under item 28(27) is described as "antibiotics such as gramicidin, tyrocodine and tyrothricin". But in the subsequent edition the article has been described as "antibiotics which contain only one antibiotic and are free from other therapeutic ingredients, but not including pencillin in bulk, and pencillin and its products sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the instructions of the Central Board of Revenue that the goods were properly classified under item 28A because the goods imported were not antibiotics, but contained other therapeutic ingredients. The defendant has stated in his written statement that it is untrue to state that appeals were rejected by the Collector acting on the instructions of the Central Board of Revenue. The Central Board of Revenue has issued the public notice Ex. P-41 negativing the contention of the plaintiff company. Hence no useful purpose will be served by the plaintiff filing any revision to the Central Government. In Venkateswaran v. Wadhwani it was held that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it but is rather a rule which courts have laid down for the exercise of their discretion. If this court has jurisdiction to review the classification made by the customs authorities and the tribunals constituted under the Sea Customs Act, it could not be said that the said jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention that the impugned orders are manifestly erroneous, because "Crayons" have been treated as "coloured pencils" is not a contention which can be gone into in an application under Art. 32 of the Constitution and that it has no bearing on the question of the enforcement of a fundamental right, nor can the question be decided without first determining what constitutes the distinction between "coloured pencil" and a "Crayon", a distinction which must require an investigation into disputed facts and materials. It was pointed out in that decision that the classifying "Food Oats" as grain could not be held to be perverse and could not be interfered with. In the decisions in Assistant Collector of Customs v. Mercantile Express Company, the appellants relied on the decision in Secretary of State for India v. Mask and Company in support of his contention that since the appellate order is by section 188 of the Sea Customs Act made final, and since the Sea Customs Act contains a precise and self contained code of appeal and revision, the High Court has no power to quash the order on certiorari. The decision of the Privy Council was distinguished on the ground that the Privy Council was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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