Decided on January 11,2013

Windlas Biotech Limited Appellant
UNION OF INDIA Respondents


SUDHANSHU DHULIA, J. - (1.) HEARD Mr. P.R. Mullick, Advocate for the petitioner and Mr. B.D. Kandpal, Deputy Advocate General for the State of Uttarakhand.
(2.) THE petitioner is a public limited company, incorporated under the Companies Act, 1956 and is engaged in the business of manufacturing and marketing of Pharmaceutical products since 2001 under a license issued by the Drug Controlling and Licensing Authority of Uttarakhand. The petitioner also claims to be registered under the Central Excise Act, 1944. The petitioner manufactures cough syrups of different brand names such as Xenocof -D, Instacodin, Codistar Cough Syrup, Wilecod Syrup. In all these cough syrups an essential ingredient is "Codeine Phosphate". Admittedly "Codeine Phosphate" is nothing but a derivative of "Opium" and can also be called "morphine". The petitioner is being charged excise duties on the aforesaid products, as according to the State authorities in Uttarakhand, the products being manufactured by the petitioner contain a narcotic or narcotic drugs in the form of "Codeine Phosphate" chargeable to excise duties Toilet Preparations (Excise hereinafter referred to as petitioner states in the writ and hence that product is under the Medicinal and Duties) Act, 1955 (from the "Act"). Although the petition that he has been paying this excise duty to the State authorities but the same is being paid under protest, the accounts of which he has maintained, and has filed the present writ petition before this Court, inter alia, seeking a writ, order or direction in the nature of Mandamus directing respondent no. 2 i.e. the Commissioner (State Excise), State of Uttarakhand, Secretariat, Dehradun not to collect this excise duty under Section 2(b) of the Act from the petitioner on the products containing "Codeine Phosphate", as the products manufactured by the petitioner and which admittedly contain "Codeine Phosphate" contain the same within the permissible limits and hence cannot be defined as "narcotic" or "narcotic drugs".
(3.) UNDER Section 2 (g) of the Act, "medicinal preparation" is defined as under : "2. Definitions. - In this Act, unless the context otherwise requires, - (a) "¦ (b) "¦ (c) "¦ (d) "¦ (e) "¦ (f) "¦ (g) "medicinal preparation" includes all drugs which are a remedy or prescription prepared for internal or external use of human beings or animals and all substances intended to be used for or in the treatment, mitigation or prevention of disease in human beings or animals; "Narcotic drug" or "narcotic" is defined under Section 2(h) of the Act, which reads as under : "2. Definitions. - In this Act, unless the context otherwise requires, - (a) "¦ (b) "¦ (c) "¦ (d) "¦ (e) "¦ (f) "¦ (g) "¦ (h) "narcotic drug" or "narcotic" means a substance which is coca leaf, or coca derivative, or opium, or derivative of opium, or Indian hemp and shall include any other substance, capable of causing or producing in human beings dependence, tolerance and withdrawal syndromes and which the Central Government may, by notification in the Official Gazette, declare to be a narcotic drug or narcotic;];

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