BAHOLE PHARMACEUTICALS CO Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) The writ petitioner is the appellant before this Court. It is a propriety firm. It manufactured and cleared Homeopathic injections during the period March 1961 to December 1966, without payment of any Excise duty. In December 1968, the Assistant Collector, came to the conclusion that Homeopathic injections which are administered by parenteral route are not recognised as Homeopathic medicine and hence they are not excluded from the purview of Patent or Proprietary medicines under Tariff Item No. 14E of the Central Excise Tariff. Accordingly, the Homeopathic injections cleared by the appellant during the period 1st March 1961 to 31st December 1966, were assessed to duty under Item No. 14E of the Central Excise Tariff, and two demands for Rs. 345.60 and Rs. 5365.14 were raised by the two notices issued on 6th December 1968. The Appellant resisted the demand contending that Homeopathic injections contain purely minute quantity of Homeopathic medicines classified in the Homeopathic Pharmacopoeia of U.S.A. and they are to be exempted from payment of excise duty under Tariff Item 14E. The Assistant Collector came to the conclusion that it has not been established that parenteral manner of administration of Homeopathic medicine is a Homeopathic practice and the medicinal contents of the items manufactured are the same if not similar to allopathy, though the dosages may be smaller or even minimal. The writ petitioner thereupon filed an appeal to the Collector of Central Excise and he held that parenteral use of Homeopathic medicines in the form of injection is not recognised in the original treatises of Homeopathic system of medicines, and such injections cannot, therefore, be treated as patent or proprietary medicines, so as to get the benefit of item 14E. The writ petitioner filed a revision petition before the Government and it was rejected holding that Homeopathic practice does not include the administration of preparation of Injections and hence they are not entitled to exemption as Homeopathic medicines. The appellant then filed a writ petition before this court and the learned single Judge of this Court held that drawing succour from the amendment to Rule 2(dd) of the Drugs and Cosmetics Rules, 1945, the authorities have come to the correct conclusion that Homeopathic medicine administered by parenteral route is not a patent or proprietary medicine which is exclusively Homeopathic and the exemption provided under Tariff Item 14E is to available and the injections manufactured and cleared have been correctly assessed to excise duty. Against this order of the learned single Judge, the present writ appeal has been filed.

(2.) The learned counsel for the appellant contended that Homeopathic injections administered by parenteral route are nevertheless Homeopathic medicine and by its mere administration in a particular form, it does not cease to be a Homeopathic medicine. The learned counsel further contended that Rule 2(dd) of the Drugs and Cosmetics Rules came to be introduced in the statue book, with effect from 6th December 1969 and the definition is for the purpose of that Act, and it cannot be imported or used as an aid for interpreting Tariff Item 14E and the Rule also is not applicable, as the sales of the injections have taken place long before the promulgation of the rule.

(3.) The learned counsel for the respondents contended that in view of Section 16 and 18 of the Drugs and Cosmetics Act, 1940, only those classes of drugs specified in the Second Schedule can alone be manufactured according to the standard set out in the Schedule and Homeopathic medicine administered by parenteral route is not mentioned in the schedule, and there is thus a total prohibition to manufacture the drug, and what is implicit in the Act has been made explicit by introducing the amendment to rule 2(dd) with effect from 6th December 1969, and when the manufacture of the drug itself is prohibited, the question of grant of exemption under Tariff Item 14E cannot arise for consideration.