D.M.CHANDRASHEKHAR, J. - (1.) THE petitioner is a company engaged in manufacturing pharmaceuticals. In this petition under Article 226 of the Constitution, it has prayed for quashing the order of the Assistant Collector, Central Excise, levying excise duty on certain medicinal preparations, the appellate order of the Appellate Collector Excise, affirming the order of the Asstt. Collector and the order of the Central Government dismissing the revision petition.
(2.) THE petitioner cleared certain medicinal preparations without payment of excise duty. Subsequently the Superintendent, Central Excise, issued to it a notice dated 9 -6 -1972 asking it to show cause why it should not be required to pay excise duty of Rs. 6,508.19 on certain medicinal preparations as set out in appendices 'A' and 'B' to that notice. The petitioner sent a reply to that notice contending that those medicinal preparations were not liable to excise duty and that the demand of excise duty under that notice was time barred under Rule 10 of the Central Excise Rules, 1944 (shortly called the Rules). After considering the aforesaid reply, the Assistant Collector, Central Excise, Allahabad held that the medicinal preparations in question were liable to excise duty since they had 'their Brand Name, Trade Mark, Symbol, Monogram and also their firm's Name'. In the appeal preferred by the petitioner, the Appellate Collector, while upholding the order of the Assistant Collector, observed inter alia, as follows: 'Examination of the labels borne on the containers in which the medicines were packed clearly showed that they bore a symbol or a monogram label which establishes a connection in course of trade between the medicines and the manufacturer having the right either as proprietor or otherwise to use the symbol or monogram with or without any indication of the identity of its manufacturer. Also the name of the manufacturer was given prominently under a colour scheme to establish the proprietary nature of the medicines. Under the circumstances, the medicines manufactured by the appellants fall within the definition of P. and P. medicines falling under Item 14E of the Central Excise Tariff.' Regarding the question to limitation, the Appellate Collector held that as the petitioner had not paid the duty the demand made came within Rule 10 -A of the Rules and hence was not time barred.
(3.) IN the revision petition filed by the petitioner, the Central Government observed as follows : - 'From the labels available on case records, it is seen that those have got colour symbol/monogram, name of the manufacturer etc. According to the explanation given below Tariff Item 14 -E the medicines having any other mark such as 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 and mark with or without any indication of the identity of that person or medicine. In view of that, medicines in question have correctly been classified as P or P medicines assessable under Tariff Item 14 -E.' Regarding limitation the Central Government held that as the goods were cleared without payment of duty, it was a case of nonlevy and, therefore, the demand was not time barred under Rule 10 of the Rules. ;