1. We are concerned in these appeals the classification for the purpose of assessment of the product manufactured by Montage Chemical Ltd. (appeal 1950/96) and Bhushal Labs (1951/96) on job work for Merind Ltd. (1953/96). In the common order impugned in these appeals, the Commissioner, after determining the classification of these goods contrary to those claimed by the manufacturer, has imposed penalties not only on the manufacturer but also on Merind Ltd. under Rule 209A.2. Montage Chemical Ltd. and Bushal Labs, whom we refer to as assessees, were engaged in the manufacture of two categories of substance. The first were goods claimed as medicament in heading 3003 of the tariff. These are amprolium soluble powder USP and piperazine hexahydrate solution. The Commissioner has determined the classification of these products in sub heading 10 of heading 30003 as patent or proprietary medicament. The reason that he advances is that the labels, monogram or logo consisting of a letter 'M' in capital with it head of a cow, sheep and hen in it. The Commissioner has found that this is part of the registered trade mark of Merind Ltd. and sufficient to comply with the requirement contained in note 2 to chapter 30. Note 2 chapter 30 includes in the definition the patent or proprietary medicament included drug which bears either or itself or on its container, a name which is not specified in a monograph or pharmocopoeia, formulatory or other publications specified in it ow which is a brand name i.e. a name or a registered trade mark under the Trade Merchandise Marks Act, 1958 or any other mark such as symbol, monogram, label, signature or invented name.
3. The contention of the appellant before the Commissioner was, and continues now before us is that the logo 'M' with the three heads of animals and bird did not use in relation to a particular product. It was the house mark of Merind Ltd. and displayed on every product that it manufactured and used elsewhere also. The Commissioner has not dealt with this submission and merely observes that it amounted to use of a brand name.
4. The departmental representative emphasises this reasoning and adds further that the decision of the Tribunal in Wyeth Laboratories Ltd. v.CCE 2002 (143) ELT 313 relied upon by the appellant has to be distinguished on facts. In that matter, the device in question was found on the tablet of the product and not on the label.Wyeth Laboratories Ltd. v. CCE has relied upon the judgment of the Supreme Court in Astra Pharmaceuticals Pvt. Ltd. v. CCE 1995 (75) ELT 214. In this judgment, the view taken by the Madras High Court in Indo-French Pharmaceutical Co. v. UOI and Ors. 1978 (2) ELT (J.478) that the device which is referred to as house mark served an emblem of a manufactured product the image of the manufacturer generally, could not be considered to be an invented word or writing so as to bring it into the ambit of item 14E of the tariff (relating to patent or proprietary medicament) a product upon which or upon the label in which it was used. In the case before us, we do not find use of the particular device limited to this product alone or limited to a particular group of products. If it bore it only on a particular product or group of products, it could be considered to be an invented name etc. and the medicament therefore a patent or proprietary medicament. However, the evidence before us shows that it was found on the visiting card of employees, upon various number of products marketed by it on the letterhead of the inter office memo of the appellant at the time carried this logo. Copies of such interoffice documents and correspondence of the year 1992 onwards have been produced before us which show the existence of this. The bind card of the factory also contains this name and does the goods receipt report.
It is thus clear that the use of the logo or device is not limited to a particular product, and its use was so broad that it could legitimately be considered to be a house mark or an emblem of the company. The products in question are merely described by a generic name i.e.
piperazine hexahydrate USP and IP and amprolium solution powder USP. We are therefore of the view that the identity of the manufacturer contained in the logo is not sufficient to consider the medicament in question patent or proprietary for classification in sub-heading 20 of heading 3003 of the tariff by the appellant will have to be accepted.
6. The other product that we are concerned with is amprolium premix.
Its composition as revealed by the report of the test of the substance by the Deputy Chief Chemist of the department dated 12.9.1999 were to contain amprolium hydrochloride and calcium phosphate. The Deputy Chief Chemist does not indicate the proportion of each of the product. The label indicates each kilogram to contain 250 grams amprolium hydrochloride B.P.(Vet), and 16 g carriers Q.S. The assessees had claimed classification of this product in heading 23.02 as being substance of a kind used for animal feeding. The label of the product recommends mixing of 250 and 500 gram of the premix in a ton of wheat, stating that amprolium premix is used for the prevention of coccidiosis in chickens and turkeys. Coccidiosis is explained as a protozoal infestation of poultry. In his order, the Commissioner has held that the product is classifiable as medicament. The label, he said, indicated its use coccidiosis for prevention of proxidozi in poultry and its use is clearly as medicinal. Because of the presence of the device that we have referred to earlier, he classified it in sub heading 10 of heading 3003 as patent or proprietary medicament.
7. The contention of the counsel for the appellant is that in the quantities that it is present in the feed, it will have, some effect as a prophylactic. He relies upon the decision of the Tribunal in Litaka Pharmaceuticals v. CCETetragon Chemie (P) Ltd. and Ors. v. CCE 8. The departmental representative emphasises the reasoning in the Commissioner's order.
9. The two decisions of the Tribunal that have been referred to, the Tribunal was concerned with classification of the goods as a pre mix in heading 23.02 of the tariff. After considering the provisions of the Explanatory Notes in the Harmonised System of Nomenclature, at page 181 of 2000 edition, it concluded that pre mix which contains more quantity of antibiotic or similar substances or vitamin along with its carrier will be classified as animal feed preparation in heading 2302. It held in Litaka Pharmaceuticals v. CCE 2000 (121) ELT 203 that the combination of a mixture coccidiostat and a carrier to be premix in heading 23.02 Both these judgments have been upheld by the Supreme Court on merits.
10. Apart from the literature of the product, the manner in which amprolium is presented therefore, it has to be considered as a premix and not as an antibiotic. The classification claimed by the appellants are to be upheld.