UNION OF INDIA Vs. INDO FRENCH PHARMACEUTICAL COMPANY

JUDGEMENT

(1.) This writ appeal has been filed by the Union of India against the order of a learned single Judge of this court in W.P. No. 2967 of 1973.

(2.) The question to be decided in the writ appeal centres round the fact whether the respondent Messrs Indo-French Pharmaceutical Company can be said to have used a mark, symbol, monogram or label in marketing its medicinal preparations. The respondent is a manufacturer of pharmaceutical products, some of which are liable to excise duty, and others not. The respondent has admittedly taken out a licence for the manufacture of those pharmaceutical products in respect of which they are bound to pay excise duty. They manufactured three Indian Pharmacopoeia products, viz. (1) Sulphagunidire tablets, (2) Sulpha Dimidine tablets and (3) Calcium Gluconets tablets. These items had been classified as non-excisable, and the respondent has been clearing the items without payment of excise duty with the approval of the Central Excise authorities. While so, on 2nd February 1971, the third appellant called upon the respondent to show cause why duty should not be levied on the said three preparations from 19th September 1966 to 9th April 1970 and why a penalty should not be levied. The respondent contended that these items were not excisable, and consequently no duty was liable to be paid. However the third appellant ultimately levied a sum of Rs. 11,319.90 by way excise duty. The respondent having exhausted all the statutory remedies, filed a writ petition which was allowed by a learned single Judge.

(3.) The label used by the respondent contains the name of the products as per the Indian Pharmacopoeia, and it also contains the name of the respondent as manufacturers. The label shows in bold letters that it is poison. It also contains the Schedule H drug warning. Above all this, the label contains a symbol with the words superscribed 'Indo-French'. The symbol is a very small one and appears to be very insignificant when compared to the over all size of the label.