DINESH CHANDRA SOMANI,J. - (1.) By way of this petition, the petitioner has prayed for following relief:- "It is therefore, in these circumstances most humbly prayed that the Hon'ble Court may be pleased to call for the record relating to the impugned notification S.O. No.1355(E) dt. 5.6.2008 and impugned demand orders dt. 18.4.2013 and 7.3.2017 and examine the same. Hon'ble Court may further be pleased to issue a writ, order or direction to quash and set aside the impugned Notification dt. 5.6.2008 in its applicability to the petitioners and the subsequent demand order dt. 18.4.2013 and 7.3.2017 being illegal and contrary to the provisions of law."
(2.) The preliminary contentions raised by Mr. Rastogi, ASG reads as under:- 9. Power to fix ceiling price of Scheduled formulation: (1) Notwithstanding anything contained in this Order, the Government may, from time to time, by notification in the Official Gazette, fix the ceiling price of a Scheduled formulation in accordance with the formula laid down in paragraph 7, keeping in view the cost or efficiency, or both of major manufacturers of such formulations and such price shall operate as the ceiling sale price for all such packs including those sold under generic name and for every manufacturer of such formulations. (2) The Government may, either on its own motion or an application made to it in this behalf by a manufacturer in Form III or Form IV, as the case may be, after calling for such information as it may consider necessary, by notification in the Official Gazette, fix a revised ceiling price for a Scheduled formulation. (3) With a view to enabling the manufacturers of similar formulations to sell those formulations in pack size different to the pack size for which ceiling price has been notified under the sub-paragraphs (1) and (2), manufacturers shall work out the price for their respective formulation packs in accordance with such norms, as may be notified by the Government, from time to time, and he shall intimate the price of formulation pack, so worked out, to the Government and such formulation packs shall be released for sale only after the expiry of sixty days after such intimation: Provided that the Government may, if it considers necessary, by order revise the price so intimated by the manufacturer and upon such revision, the manufacturer shall not sell such formulation at a price exceeding the price so revised. Explanation : For the purpose of this paragraph the "Scheduled formulation" includes single ingredient formulation based on bulk drugs specified in the First Schedule and sold under the generic name. 11. Fixation of price under certain circumstances: Where any manufacturer, importer of a bulk drug or formulation fails to submit the application for price fixation or revision , as the case may be, or to furnish information as required under this Order, within the time specified therein, the Government may, on the basis of such information as may be available with it, by order fix a price in respect of such bulk drug or formulation as the case may be. 22. Power to review: Any person aggrieved by any notification issued or order made under paragraphs 3,5,8,9 or 10 may apply to the Government for a review of the notification or order within fifteen days of the date of publication of the notification in the Official gazette or the receipt of the order by him, as the case may be, and the Government may make such order on the application as it may deem proper: Provided that pending a decision by the Government on the application submitted under the above paragraph, no manufacturer, importer or distributor, as the case may be, shall sell a bulk drug or formulation, as the case may be, at a price exceeding the price fixed by the Government of which a review has been applied for. (23) Power to issue guidelines and directions: (1) The Government may for the purpose of implementing the provisions of this Order, authorize any Officer, by a general or special Order, to inspect the premises of any manufacturer, importer, distributor or dealer and such manufacturer, importer distributor or dealer shall allow such authorized officer and make available all relevant information required for the purpose. (2) The Government may, from time to time, issue such guidelines and directions, consistent with the provisions of this Order to any manufacturer or importer as may be necessary to carry out the provisions of this Order and such manufacturer or importer shall comply with such guidelines and directions."
(3.) Counsel for the respondent has also relied upon the decision of Supreme Court in Union of India (UOI) and Ors. vs. Cipla Ltd. and ors. 2016 (10) Scale 255 wherein Supreme Court held as under:- "139. It has also been argued before us by learned counsel representing a small scale industry that the ceiling price of formulations fixed under Paragraph 9 of the DPCO 1995 denied the benefit of an exemption notification dated 2nd March, 1995 available to small scale industries. We are not inclined to take this argument with any degree of seriousness particularly since it seems to suggest that the Central Government acted with a mala fide intent. There is no warrant for such an assumption and no such allegation or averment has been made in the pleadings. The issuance of a notification under Paragraph 9 of the DPCO 1995 is a legislative exercise of power and to say that it was resorted to for denying the benefit of an exemption to small scale industries can hardly be given any credence. However, if the submission was intended to convey the difficulty faced by small scale industries, it can hardly be helped. There is nothing in the DPCO 1995 to suggest that a small scale industry is kept out of the rigour of the DPCO 1995. It is equally bound by any retail price or ceiling price fixation by the Central Government. 146. The efficacy of the alternative remedy provided in the DPCO was the subject matter of consideration in Cynamide India Ltd. The contention urged therein was that for the purposes of price fixing, facts and figures were arbitrarily assumed by the Central Government. Rejecting this, it was held by this Court in paragraph 31 of the Report as follows: ".........We do not propose to delve into the question whether there has been any such arbitrary assumption of facts and figures. We think that if there is any grievance on that score, the proper thing for the manufacturers to do is bring it to the notice of the Government in their applications for review. The learned counsel argued that they were unable to bring these facts to the notice of the Government as they were not furnished the basis on which the prices were fixed. On the other hand, it has been pointed out in the counter- affidavits filed on behalf of the Government that all necessary and required information was furnished in the course of the hearing of the review applications and there was no justification for the grievance that particulars were not furnished. We are satisfied that the procedure followed by the Government in furnishing the requisite particulars at the time of the hearing of the review applications is sufficient compliance with the demands of fair play in the case of the class of persons claiming to be affected by the fixation of maximum price under the Drugs (Prices Control) Order." [Emphasis supplied by us]." We have no doubt that if any manufacturer or formulator had taken the trouble of preferring a revision or review application, all necessary material would have been made available to the complainant for an effective representation. We are satisfied that none of the parties before us was precluded by circumstances from preferring a revision or review for corrective measures in relation to the retail price or ceiling price of any particular formulation - in fact, we are told by the learned Solicitor General that some of them did. 173. Our answer to the questions identified are as follows: a........ b....... c. Whether various notifications issued by the Central Government fixing the retail price or ceiling price of formulations under Paragraphs 8 and 9 (as the case may be) of the Drugs (Prices Control) Order, 1995 without determining the norm for cost of packing material as required by Paragraph 7 of the Drugs (Prices Control) Order, 1995 are valid in law? Our answer is in the affirmative." 3. In view of the above, we relegate the petitioner to file review petition under para 22 of Drugs (Price Control) Order 1995. ;