BROWN AND BURK PHARMACEUTICALS Vs. CCE

JUDGEMENT

(1.) THESE appeals are against orders of the Commissioner (Appeals) holding the products in question to be not dutiable. The products are pharmacopoeial medicines. The appellants in Appeal No. 1258/1999 had printed the words 'BROWN and BURK', 'ELBE', LUEX', 'PREMIER HEALTH CARE', 'MORNING SIDE', etc. on the containers of their products. The other appellant similarly printed "MICRO", "ELBE" etc. The original authority considered these marks as trademarks/brandnames and accordingly held the goods to be classified under sub -heading 3003.10 attracting duty @ 15%. But the first appellate authority considered these marks to be house marks and accordingly held the goods to be non -dutiable on account of classification thereof under sub -heading 3003.20. The clearances of the subject goods by the appellants were for export. They were also clearing dutiable goods to the domestic market. Hence the effect of the appellate Commissioner's order was that they are liable to pay 8% of the price of the exempted goods [cleared for export] under Rule 57CC of the Central Excise Rules, 1944. Hence the present appeals.

(2.) THERE is no representation for the appellants despite notice. These appeals had arisen before the Bench in the last week also, but there was no representation for the party. We are not inclined to keep these old appeals of the year 1999 pending any longer. Accordingly, we have examined the records and heard learned SDR. It is submitted by learned SDR that the words 'BROWN and BURK', being a part of the name of the appellant company viz. Brown and Burk Pharmaceuticals Ltd. can only be considered as their house mark, particularly where it has not been shown by the appellants that these marks were registered as a trademark or brandname under the Trade and Merchandise Marks Act. In regard to the other marks viz. 'ELBE', LUEX', 'PREMIER HEALTH CARE', 'MORNING SIDE', etc. it is submitted that these are also not brandnames. Learned SDR relies on the apex Court's judgment in Astra Pharmaceuticals (P) Ltd. v. Collector of Central Excise , wherein the word 'ASTRA' printed on the container of 20% Dextrose Injection manufactured by the party was held to be a house mark. Their Lordships also observed that, had the party named their product as 'Astra Dextrose Injection' it could have been said that the relationship between the medicine and the manufacturer was established. Learned SDR has heavily relied on this observation of the apex Court, in support of the appellate Commissioner's order which inter alia says that the medicines ha not been described as 'ELBE Paracetamol', 'LUEX Mebendazole', 'MORNING SIDE Vitamin B' and the like. After considering the submissions and reading the judgment in Astra Pharmaceuticals (P) Ltd. (supra), we find force in the SDR's argument. Insofar as 'BROWN & BURK' is concerned, this is patently a part of the manufacturer's name and no evidence is available on record to show that this mark was registered under the Trade and Merchandise Marks Act. This mark was used on the container of the product and not as a part of the name of the medicine. As regards the other marks, we find that these have nothing to do with the name of the manufacturer. 'LUEX' is the abbreviation of the buyer's name viz. London United Exports Ltd. Similarly, 'MORNING SIDE' and 'PRIMARY HEALTH CARE' are also parts of the respective buyers names. These were not even house marks of the manufacturer. These marks were also not shown to have been registered under the above Act in respect of the respective medicines. Thus, none of the marks is a trademark or brandname, whether they arc house marks or not. In the result, the orders of the appellate Commissioner holding the subject goods to be exempt from payment of duty, thereby rendering the appellants liable to honour the demand raised by the department under Rule 57CC require to be sustained. Accordingly, these appeals are dismissed.