House mark on a pharmacopoeia-listed medicament does not by itself create patent or proprietary classification.

A salbutamol inhaler listed in the Pharmacopoeia of India was examined for tariff classification under Heading 3003.10 as a patent or proprietary medicament, or under Heading 3003.20 as an ordinary medicament. Chapter Note 2(ii) of Chapter 30 treats a product as patent or proprietary only if it bears a non-pharmacopoeial name or a brand name showing trade connection with a person entitled to use that mark. Use of the manufacturer's house mark on the packing was held insufficient, because a house mark identifies the manufacturer but does not create the required trade connection. The product therefore fell outside patent or proprietary classification.

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Issues: Whether the Salbutamol inhaler was classifiable as a patent or proprietary medicament under Heading 3003.10 or as a medicament under Heading 3003.20 of the Central Excise Tariff Act, 1985.

Analysis: Chapter Note 2(ii) of Chapter 30 treats a medicament as patent or proprietary only if it bears a name not specified in the recognised pharmacopoeias or if it bears a brand name or other mark indicating a trade connection between the medicine and a person entitled to use that mark. The product was specifically mentioned in the Pharmacopoeia of India. The mere use of the manufacturer's house mark on the packing did not establish the trade connection required to treat the product as a branded medicament. The distinction between a house mark and a brand name was applied to conclude that a house mark only projects the manufacturer's identity.

Conclusion: The product was not a patent or proprietary medicament and was not classifiable under Heading 3003.10; the appeal was therefore entitled to succeed.

Ratio Decidendi: A house mark used to identify the manufacturer, without indicating a trade connection between the medicine and the mark, does not make a pharmacopoeia-listed medicament a patent or proprietary medicament.

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