- (1.) These two appeals are against the orders of the Customs, Excise and Gold (Control) Appellate Tribunal (for short "CEGAT") dated 14.03.2000 and 9.10.2001. The point involved in both these appeals is whether the appellants are entitled to the benefit of Notification No. 75 of 1994 dated 29.03.1994. This notification exempts from payment of duty medicaments used in, amongst others, Ayurvedic preparation manufactured in accordance with the formula prescribed in Ayurvedic books specified in the First Schedule to the Drugs and Cosmetics Act, 1940 or homoeopathic pharmacopoeias and sold under the name specified in such books or pharmacopoeia. The Tribunal has held, in both the orders, that the appellants are not entitled to the benefit of this notification.
(2.) The admitted facts are that the appellants are manufacturing Maha Bhringaraj Oil which is an Ayurvedic preparation. It is not disputed that this manufacture is in accordance with the formula prescribed in the authoritative books. The appellants have, however, been denied the benefit of notification on the ground that they are selling the product as "Maha Bhringol" which is not the name specified for this product in the books or pharmacopoeia.
(3.) It is submitted that the notification does not prevent a party from using any other mark or symbol or monogram or invented words. It is submitted that mere use of additional words would not deprive a party of the benefit of the notification. It is submitted that the word "Maha Bhringol" is not a trade or brand name and that the appellants do not have any proprietary right to these words. It is pointed out that the appellants have filed an affidavit to this effect. Reliance is also placed upon a trade notice wherein it has been clarified as to which product is covered by the notification. The trade notice states by way of example: "The following four situations will make it more clear: (a) Chavanprash is prepared as per Ayurvedic textbooks and sold also as 'Chavanprash' without any indication as to who the manufacturer is. (b) Chavanprash is prepared as per Ayurvedic textbooks. It is sold as Chavanprash but the manufacturer's name or mark, logo, symbol, etc. is also prominently displayed. (c) 'Chavanprash' is prepared as per the Ayurvedic textbooks. It is, however, sold under a brand name but not sold as 'Chavanprash'. For example, it is sold, say as 'Kesri Jivan'. (d) 'Chavanprash' is not prepared as per the Ayurvedic textbooks but using some other formulas.";