JUDGMENT S.S. KANG, VICE-PRESIDENT- Heard both sides.
2. The appellants filed these appeals against the common Order-in-Appeal. in this case, duty was confirmed against M/s. Chetna Polytex Pvt. Ltd. On the ground that they were clearing branded surgical adhesive tapes, which are classifiable under Heading 3004.90 of the CETA. A demand was also confirmed against M/s. Chetna Medicare Pvt. Ltd. On the ground that goods manufactured by M/s. Chetna Polytex Pvt. Ltd. Were cleared on the invoices of M/s. Chetna Medicare Pvt. Ltd. The contention of the appellants is that M/s. Chetna Polytex is manufacturing various products including surgical adhesive tapes and on the inner role of which the 'Chetna Medicare' or 'CM' was written. The contention of the appellants is that these are surgical tapes and they are manufacturing after following the Drug Rules and as per the provisions of Drug Rules, it was mandatory on the manufacturer to mention the name of the manufacturer. The contention that mere mentioning 'CM' is not mention of any brand name but only a house mark, which is to be affixed on the products as per the Drug Rules. The appellants relied upon the decision of the Supreme Court in the case of Astra Pharmaceuticals (P) Ltd. v. CCE, Chandigarh [1995 (75) ELT 214
(SC) = 1995 (56) ECR 638 (SC)]. The appellants also relied upon the order passed by the Commissioner of Central Excise (Appeals) regarding their competition where USP was written on the spool as well as on the packing of the branded surgical tapes, in respect of demand, from Chetna Medicare Pvt. Ltd., the contention is that they were clearing the goods by paying appropriate duty. The case of the Revenue is in fact that M/s. Chetna Polytex were manufacturing the goods and clearing them under the name of Chetna Medicare Pvt. Ltd. The contention in such a situation is that, demand should be made from M/s. Chetna Polytex.
3. The contention of the Revenue is that the appellants are clearing the surgical adhesive tapes under the brand name mentioning 'CM'. Therefore, ,these are branded tapes and are not to be classifiable under Sub-Heading No. 3004.10 but are to be classifiable under Sub-Heading 3004.90 of the CET. in respect of demand of duty from Chetna Medicare, the Revenue relied upon the findings of the lower authority.
4. in this case, the first issue is whether the surgical adhesives tapes are being cleared with the brand name or not. If these are cleared with the brand name, then these are to be classifiable under Sub-Heading No. 3004.90 of the Tariff and in case they are not cleared with the brand name then these are to be classifiable under Sub-Heading No. 3004.10 of the Central Excise Tariff Act. We find that the appellants are only mentioning the logo as 'CM1. The Hon'ble Supreme Court in the case Astra Pharmaceuticals (supra) after taking into consideration the provisions of Drug Rules, has held under these rules that the brand name regarding the manufacture of the goods is compulsory and held that writing of the 'AP' or 'Astra' on the container or packing is the house mark and not the brand name of the manufacturer. The appellants, in the present case, are also working under the provisions of Drug Rules and they have got necessary licence from the Drug Controller for manufacture of surgical adhesive tapes. Therefore, the ratio of the above-mentioned decision of the Hon'ble Supreme Court is applicable on the facts of the present case. Therefore, the demand on this ground is not sustainable and is set aside, in respect of the other demand, which is from M/s. Chetna Medicare Pvt. Ltd., we find that the allegation is that M/s. Chetna, Polytex Pvt. Ltd.
Manufactured the goods and cleared them in the name of Chetna Medicare Pvt. Ltd. If the goods are manufactured by Chetna Polytex Pvt. Ltd., then the demand should be from M/s. Chetna Polytex Pvt. Ltd. And not from Chetna Medicare. Therefore, the demand in this respect is also not sustainable.
5.In view of the above discussion, the impugned order is set aside and the appeals are allowed with consequential relief in accordance with law, if any. - Order dictated and pronounced in open Court on 10.2.2005.