By TIOL News Service

MUMBAI, DEC 09, 2017: ONE of the medicaments manufactured by the appellant is "Acetyl Salicylic Acid Tablets IP 50 MG" (ASA). Prior to April 1998, the appellant was clearing the said medicament in packing which bore a monogram containing the letters GRASA, which were interwoven in stylized form. Accordingly, they had classified the said medicament as a Patent or Proprietary Medicament under CETH No. 3003.10.

The use of said monograph was objected under the Drugs and Cosmetics Act, 1940 since the said medicament Acetyl Salicylic Acid (also known as Aspirin) fell under Schedule W of the Drugs and Cosmetics Rules, 1945 and, therefore, could be marketed only under generic name.

The appellant, therefore, discontinued the use of the said monogram and started marketing the same under the generic name only, namely Acetyl Salicylic Acid with the abbreviation (acronym) thereof "ASA" written in bracket in simple capital letters.

Treating the said medicament as ‘other than patent or proprietary medicament', they filed a classification declaration under CH 3003.20 attracting Nil rate of duty/lower rate of duty as compared to duty rate applicable to P&P medicament falling under CSH No. 3003.10.

The case of the department is that after the word Acetyl Salicylic Acid, the abbreviation (acronym) mentioned i.e. (ASA) is brand name of the appellant, therefore, it falls under the category of P&P medicament and correctly classifiable under Chapter sub-heading 3003.10.

Differential CE duty demand was issued and confirmed by O-in-O dated 26.10.2007 against which the appellant-assessee is before the CESTAT.

It is submitted that the abbreviation "ASA" is universally used for the medicament "Acetyl Salicylic Acid" and is commonly used; that they have no sole right on the word "ASA", therefore, the medicament is not coveredas P & P medicament; that letters "GR" is a house-name and use of a house-name does not amount to affixing brand name so as to be qualified as P&P medicament in view of apex court decision in Astra Pharmaceuticals (P) Ltd. - 2002-TIOL-248-SC-CX ; that the demand is hit by limitation as the first SCN is dated 30.10.2000 and covers the period January to February 2000 whereas the second SCN covering the extended period April 1998 to December 1999 is dated 30.04.2001. [Hyderabad Polymers (P) Ltd. - 2004-TIOL-35-SC-CX relied upon].

The AR supported the order of the original authority.

The Bench considered the submissions made by both sides and observed that "ASA" as an abbreviation to the name "Acetyl Salicylic Acid" is universally used.

Extracting the various literatures, books, dictionaries etc., the CESTAT also observed that "ASA" is used as an abbreviation for "Acetyl Salicylic Acid", and the same is commonly used, in which case, the appellants has no proprietary right on the word "ASA".

Adverting to the definition of P & P medicament provided under Note (i) and (ii) of Chapter 30 of CETA, the Tribunal held -

++ On reading of the above definition of P&P medicament, to qualify medicament as P&P, either name of the medicament should be other than the name specified in a monogram pharmacopoeia such as IP, BP, USP, etc. or the name should be a trade name on which the person using should have the right as proprietor or otherwise to use such name or mark with or without any indication of the identity of that person.

++ The claim of the department can only be accepted when it is the established that the name "ASA" is a brand name and on which the appellant has proprietary right. As discussed above, since the name "ASA" is nothing but an abbreviation of "Acetyl Salicylic Acid" and commonly used by anybody for referring the name "Acetyl Salicylic Acid", the same cannot be considered as a brand name of the appellant.

++ Moreover, as per the labels of various other manufacturers submitted by the appellant, it is observed that abbreviation "ASA" is being used by various other manufacturers for the reason that any individual person has sole right on such name, i.e. "ASA".

++ We are of the clear view that the name of the medicament, i.e. "Acetyl Salicylic Acid Tablets IP 50 MG (ASA)" is not a brand name and it is a generic name, therefore, it does not fall under the definition of P & P medicament.

In fine, the classification claimed by the appellant as medicament other than P & Punder Chapter Heading 3003.20 is held to be correct.

It is also held that the demand is hit by limitation as the appellant before manufacturing and clearance of the goods in question filed the classification declaration along with the label of the product on 02/04/98, therefore, the entire facts were before the department and hence it could not be said that there is a suppression of fact on the part of the appellant.

Concluding that the impugned order is not sustainable on merit as well as on limitation, the same was set aside and the appeals were allowed.

(See 2017-TIOL-4336-CESTAT-MUM)