TaxTMI 
TaxTMI 
1998 (7) TMI 631
X X X X Extracts X X X X
X X X X Extracts X X X X
....in a Pharmacopoeia, Formulary or other publications, namely - (a) The Pharmacopoeia; (b) The International Pharmacopoeia; (c) The National Formulary of India; (d) The British Pharmacopoeia; (e) The British Pharmaceutical Codex; (f) The British Veterinary Codex; (g) The United States Pharmacopoeia; (h) The National Formulary of the U.S.A.; (i) The Dental Formulary of the U.S.A., and (j) The State Pharmacopoeia of the U.S.S.R. or which is a brand name, that is, a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between the medicine and some person, having the right either a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....'s name and other details in graphic pictorial form is much larger and prominent containing a large number of words in smaller print. The view taken by the lower authorities that the product has used the brand name and their logo does not appear to be well founded. Appellant's Counsel had also strongly urged that it was obvious that the appellants have not used any words, letters or symbols to give a different characterisation to the pharmacopeia name of the product. Unlike some other products where identification with the manufacturers was so obvious that the product is invariably associated with the manufacturer, in the instant case there was no effort on the part of the manufacturer to identify the product beyond the extent required under the Drugs and Cosmetics Rules which required the manufacturer to mention their name in all containers of drugs manufactured by them. On the basis of the material shown before us, we find that the submissions made by the Counsel for the appellants has merit. We find no justification in classifying the said preparations as patent and proprietary medicaments coming under 3003.10 as confirmed by the lower authorities. We are of the view that the pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rug has been manufactured.] Provided that if the drug is contained in an ampoule or a similar small container, it shall be enough if only the name of the manufacturer and his principal place of [manufacture] is shown." "97. Labelling of medicines. (1)  ... (2)  ... (3) The container of a medicine made up ready only for treatment of an animal shall be labelled conspicuously with the words 'Not for human use; for animal treatment only' and shall bear a symbol depicting the head of a domestic animal." 9. There is no doubt that 'Piperazine Hydrate Liquid' is the proper name of the medicine and printed in terms of the aforesaid Rule 96 and heads of animals have also been shown according to statutory provisions. 10. Therefore, indicating the same by itself does not make a medicine patent or proprietary. Furthermore, as noted above, Rule 96(iv) also requires the name and address of the premises of the manufacturer and his principal place of manufacture is also required to be shown. The appellants' have stated that 'Agrivet Farmcare' is a division of Glaxo India where the goods have been manufactured. Therefore, mere indication of the name....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne is correct (although for different reasons). I, therefore, see no reason to interfere with the order and reject the appeal. Sd/- (S.K. Bhatnagar)Vice PresidentDated 11-3-1998 POINT OF DIFFERENCE 13. In view of difference of opinion between Hon'ble Member (Judicial) and the Vice President, the matter is submitted to Hon'ble President for referring it to a Third Member on the following points :- "Whether in view of observations and findings of Hon'ble Member (Judicial), the appeal is required to be allowed or the appeal is required to be rejected in view of observations and findings of the Vice President." Sd/-(A.C.C. Unni)Member (J)Dated 16-3-1998 Sd/-(S.K. Bhatnagar)Vice PresidentDated 16-3-1998 14. [Order per : G.R. Sharma, Member (T)]. - This matter has come to me as a difference of opinion. The point of difference as formulated is as under : "Whether in view of observations and findings of Hon'ble Member (Judicial), the appeal is required to be allowed or the appeal is required to be rejected in view of the observations and findings of the ld. Vice President." 15. The ld. Member (Judicial), after hearing the submissions of b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n but for the fact that the label also indicates a box showing the heads of four animals just above the words 'Agrivet Farmcare' with an astrik and this astrik leads us to and indicates the 'owner of the trademark' as 'Glaxo India Ltd.' written there and thereafter, the address. This, to my mind, amounts to indication that while animal figures or their heads above the central black line conform to the drug rules, it is admittedly the trademark which has been indicated below the central line. Chapter Note 2(ii) of Chapter 30 which defines Patent or Proprietary medicament refers, inter alia, to a brand name and indicates in this respect that "Patent or proprietary medicaments 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 (namely .....) or which is a brand name, that is, a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958..." 18. In Para 6, the ld. Vice President observed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ame or a registered trade mark under the Trade and Merchandise Marks Act, 1958 or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between the medicine and some person, having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person.' The ld. Senior Counsel pointed out that in this definition, it is essential that the mark, monogram, label, signature etc. should be used in relation to that medicine. He submits that the mark, symbol in their case have not been indicated in relation to the medicine, but have been indicated only to show the house mark of the manufacturer. He submits that Drugs and Cosmetics Rules, 1986 describes the manner of labeling which requires the furnishing of the name of the product to be written in conspicuous manner, name of the product and the address of the premises of the manufacturer. He submitted further that Rule 97 sets out the manner of labelling of medicines which required the container of a medicine made u....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... medicines which bear either on itself or on its container or both a name which is not specified in a monograph in a Pharmacopoeia. This obviously is not applicable to the appellant as the injections manufactured by the appellant are specified in a Pharmacopoeia. The other class of medicines to which this explanation applies are those which have a brand name that is a name or a registered trade mark under a Trade & Merchandise Marks Act. The medicine manufactured by the appellant is not registered under the Trade and Merchandise Marks Act. Therefore, it would attract levy only if its container or packing carried any distinctive marks so as to establish the relation between the medicine and the manufacturer. But the identification of a medicine should not be equated with the produce mark. Identification is compulsory under the Drug Rules. Technically, it is known as 'house mark'. In Narayan's Book on Trade Marks and Passing Off, the distinction between 'house mark' and 'product mark' (brand name) is brought out thus, "677A. House mark and product mark (or brand name). In the Pharmaceutical business a distinction is made between a house mark and a product mark. The former is us....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne as well. What has been extracted in the judgment is that the medicine has been manufactured by M/s. Ramsey Pharma Pvt. Ltd. As stated earlier if the container of the appellant would have stated that these were Astra Dextrose injections then it could be said that a relationship between the medicine and the manufacturer was established. The ratio laid down by the Madras High Court is approved as correctly enunciating the scope of Explanation I. Since the appeal is being allowed on merits the question whether the Revenue was justified in reopening the case under proviso to Section 11A of the Act is rendered academic and is not necessary to be decided." 22. The ld. Counsel submitted that the words 'Agrivet Farmcare', the heads of 4 animals and other inscriptions on the label were not in relation to Piperazine Hydrate Liquid and, therefore, these things can not be termed as Product Marks. He submits that so many people manufacture Piperazine Hydrate Liquid and if somebody ask for Agrivet Farmcare, nobody will give Piperazine Hydrate Liquid as Agrivet Farmcare, a division of Glaxo India Limited does not manufacture only this medicine, but also manufactures a number of other me....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eld. 24. Shri A.K. Madan, the ld. SDR appearing for the Respondent Commissioner, submits that the ld. Vice President has very rightly analysed the position in Para 5, 6 and 7 of his order. He submits that the ld. Vice President has observed - 'where the Appellants' label itself declares any particular mark such as symbol, monogram etc. as a brand name (or trade mark), it naturally speaks for itself and here, the appellants' label itself claims it to be owner's trade mark.' He submits that since the trade mark was indicated on the label, therefore, the medicine is a P & P medicine as rightly held by the Commissioner Appeals and upheld by the ld. Vice President. 25. On careful consideration of the submissions made before me as also the two orders proposed by the two ld. Member of the Bench, I have examined the definition of P & P Medicines given under Chapter 2(ii) (sic) of Chapter 30 as also the Rules 96 and 97 of the Drugs and Cosmetics Rules, reproduced in the Order of the ld. Vice President. I have also perused the case law referred by the Appellants in regard to House Mark and Product Mark. I note that the admitted position is that Piperazine Hydrate liquid is me....