TaxTMI 
TaxTMI 
1990 (9) TMI 72
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....ry 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 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 as a proprietor or otherwise to use the name or mark with or without any indication of the identity of that person. Explanation II - 'Alcohol', 'Opium' 'Indian Hemp', 'Narcotic Drugs' and Narcotics' have the meanings respectively assigned to them in Section 2 of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955." 2. Item 68 of the Excise Tariff ....
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....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 was classifying the products mentioned above under Item 14E and was paying central excise duty on that basis. After the notification dated February 15,1984 the appellant filed a classification list effective from March 1,1984 whereby the abovementioned products were classified as 'animal feed supplements' under Item 68 and exemption was claimed under notification dated February 15,1984. The said classification list submitted by the appellant was approved by the Assistant Collector of Central Excise on June 4,1984. Subsequently the Assistant Collector realised that the said classification had been wrongly approved and he gave a show cause notice dated January 31,1985 to the appellant wherein it was stated that the abovementioned products classified b....
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....erapeutic 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 Shri K.K. Venugopal, the learned counsel for the appellant fairly stated that according to the printed pamphlet issued by the appellant the use of Bifuran Supplement is to promote growth rate, weight-gains and feed conversion efficiency in growers and broilers by keeping coccidiosis away during growing period, and that the said product can be regarded as preventive medicine falling under Tariff Item 14E and he has confined his submissions in respect of the other two products, namely, Neftin-50 and Neftin-200. 6. Shri Venugopal has urged that Neftin-50 and Neftin-200 are manufactured by the appellant for use as animal feed supplement and not for use as medicine and therefore they should have been classified as animal feed supplement under Tariff It....
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....her 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 manufactured by the appellant in that case was raw rubber and classifiable under Item 39 or it was classifiable under the residuary entry contained in Item 87. It was found that V.P. Latex fell within Item 39 and in view of the said finding it was held that it could not fall within the residuary entry of Item 87. It was observed : "When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause. The question of competition between two rival classification will, however, stand on a different footing." (P. 113). 10. Similarly in Collector of Centra....
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....eutical 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 material it also appears that in England Furazolidone is a prescription only veterinary drug and it can be sold or supplied to the public on a practitioner's prescription only. Furazolidone is thus a drug or medicinal preparation used for treatment and prevention of ailments in poultry and since Neftin-50 and Neftin-200 contain only Furazolidone, the said products are also drugs or medicinal preparations for use in the treatment and prevention of ailments in poultry. In this context it would be relevant to mention that apart from Neftin-50 and Neftin-200 the appellant also manufactures Neftin Tablets. The appellant has not disputed that Neftin Tablets manufactured by it are drugs or medicines falling within the ambit of Item 14....
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....ariff. 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 notification. It is not disputed that prior to the notification dated February 15,1984, the appellant was paying central excise duty on Neftin-50 and Neftin-200 as patent and proprietary medicines falling under Item 14E. In the absence of any notification granting exemption in respect of products falling under Item 14E, Neftin-50 and Neftin-200, which are patent and proprietary medicines falling under Tariff Item 14E and which do not fall under the residuary entry at Item 68, cannot be claimed to be exempt from central excise duty as animal feed supplement under notification dated November 1, 1982, as amended by notification dated February 15,1984. 15. Shri Venugopal has contended that the appellant has been subjected to arbitr....
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....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 appellants because lands under orchards belonging to persons similarly placed had been exempted whereas the appellants had been refused exemption. Rejecting this contention this Court has observed : "In any event if the appellants had failed to bring their case within Section 56 of the Act, then merely because some other party had erroneously succeeded in getting his lands exempted ostensibly under that Section that by itself would not clothe the present appellants with a right to secure exemption for their lands. The rule of equality before the law or of the equal protection of the laws under Article 14 could not be invoked in such a case." 17. In Cumberland Coal Co. (Supra) and Iowa-Des Moines National Bank (Supra) it was f....