Patent or proprietary medicament classification cannot rest on a new ground not raised in the notice.

The presence of the word "MAGNUS" on packing and labels did not, on the ground alleged in the notice, establish that the product was a patent or proprietary medicament. The department was confined to the original allegation in the notice, and could not sustain the appeal by introducing the separate presence of the word "ADVENE" as a new ground. The record showed that the product bearing "ADVENE" had been classified separately, but the disputed product itself was not shown to fall within that category on the basis pleaded. The appeal therefore lacked support on the case made in the notice.

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Issues: Whether the product became a patent or proprietary medicament merely because the word "MAGNUS" appeared on its packing and labels, and whether the department could sustain the appeal on the new ground that the word "ADVENE" also appeared on the product.

Analysis: The only allegation in the notice was the presence of the word "MAGNUS", and the finding of the lower appellate authority that this did not make the product a patent or proprietary medicament was not challenged on the original basis. The attempted reliance on the additional word "ADVENE" introduced a fresh ground not taken in the notice. The product bearing "ADVENE" had separately been classified as patent or proprietary medicament, while the disputed product on the record was not shown to fall in that category on the basis alleged in the notice.

Conclusion: The product was not established to be a patent or proprietary medicament on the ground urged by the department, and the appeal could not be sustained on a new ground.

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