HOECHEST PHARMACEUTICALS LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) SUIT for refund of Rs. 20, 544.83 being the excess amount of the duty illegally collected by the defendant from the plaintiff company in respect of five consignments of Tetracycline Hydrochloride in injections imported under the brand name 'Hostacycline' manufactured by Messrs. Farbwerke Hoechst A.G. The plaintiff company filed bills of entry and asked for clearance of the consignments. The Assistant Collector of Customs assessed the consignments to duty under item 28(A) of the Indian Customs Tariff (hereinafter referred to as the I.C.T.). The plaintiff's case is that the Hostacycline (Tetracycline Hydrochloride) injections imported by them are antibiotics assessable to duty of 20% under item 28(27) of the I.C.T. and not to duty of 50% under item 28(A) of the I.C.T. The plaintiff company claimed refund of the excess duty paid on the said wrong classification, but the claim was rejected by the Assistant Collector of Customs, and the appeals preferred by the plaintiff company to the Collector of Customs were unsuccessful as the Collector of Customs acting on the instructions of the Central Board of Revenue found that the goods were properly classified under item 28(A) of the I.C.T. because the goods imported were not antibiotics pure and simple but contained other therapeutic ingredients. The Collector of Customs who disposed of the appeals held that the ascorbic acid which was present in Hostacycline injections served two roles, viz. as a buffering agent and also as a substance which has its own therapeutic effect.

(2.) THE defendant's case is that Hostacycline injections are not antibiotics pure and simple as they contain other therapeutic ingredients, that in this case the manufacturers have deliberately added ascorbic acid in large quantities with the intention of the said ascorbic acid having its own therapeutic value, that the preparation in question has therefore been correctly classified under item 28(A) of the I.C.T., that it is for the customs authority to classify the goods under specific items for purposes of levy of duty, that the Sea Customs Act is a complete code in itself providing for the redress or grievances by the Tribunals referred to therein and by no others, that this Court has, therefore, no jurisdiction to review, the decisions of the Customs Authorities and the Tribunals constituted thereunder and that the plaintiff company not having exhausted all the remedies provided under the Sea Customs Act, the suit is premature.

(3.) THE Plaintiffs brand of Hostacycline intramuscular injections have the following composition : Hostacycline intravenous injections have the following composition : THE extra Pharmacopoeia by Martindale, Vol. I, 24th Edition, page 1469 shows that in the preparation of injections the proportion of tetracycline hydrochloride and ascorbic acid is 1 : 3 in the case of intravenous injections, and 1 : 2.5 for intramuscular injection. THE Hostacycline intramuscular and intravenous injections contain much less ascorbic acid that what is mentioned above. THE learned Advocate for the plaintiff company referred to the fact that the ascorbic acid contact in Hostacycline injections is much less than that contained in similar preparations of other manufacturers.