Judgment

B. P. JEEVAN REDDY, J.:- The question in this appeal preferred by the Union of India against the decision of the Bombay High Court is whether the respondents product. "Handyplast", is a patent or proprietary medicine within the meaning of Tariff Item 14-E of the First Schedule to the Central Excise Act as it obtained at the relevant time. Tariff Item 14-E read as follows:

Item No.13E - PATENT OR PROPRIETARY MEDICINES

Tariff Item No. Description of Goods Rate of Duty

14E PATENT OR PROPRIETARY MEDICINES not containing alcohol, opium, Indian hemp or other narcotic drugs or other narcotics other than those medicines which are exclusively Ayurvedic, Unani, Sidha or Homeopathic. 12.5 percent ad valorem

Explanation 1- "Patent or Proprietary Medicines means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals, which bears either on itself or on its container or both, a name which is not specified in a monograph in a Pharmacopoeia. Formulary or other publications notified in this behalf by the Central Government in the Official Gazette, or which is a brand name, that is a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between medicine and some person, having the right either as a proprietor or otherwise to use the name or mark with or without any indication of the identity of that person."

Explanation II- (omitted as unnecessary.)

2. The respondent is a company engaged in the manufacture of strips of surgical dressings containing a pad medicated with nitrofurozone (0. 125%) sold under the trade-name Handyplast. A sample of the said product is placed before the court as Exhibit-B. The following is the general description of such products, as set out by the High Court (1984 (86) Bom LR 450 at p. 456):

"Such elastic adhesive wound dressing consists of a fabric pad, comprising a piece of lint wrapped in muslin bandage, fixed to a rectangular piece of extension plaster so as to leave a margin of adhesive surface surrounding the pad. The elasticity of the plaster is unidirectional across the narrow width of the pad. The pad and adhesive margin are covered with a protector, which is removed before application. The pad is medicated with an antiseptic and dyed yellow, if necessary, with a non-toxic dye; the antiseptic and dye may be omitted if the dressing is supplied sterile."

3. Both parties agree that the product in question accords with the above description. The question is whether it is a patent or proprietary medicine within the meaning of Tariff Item 14-E. The Explanation defines the expression "patent or proprietary medicines" to mean inter alia medicinal preparation, in whatever form, for use in the external treatment of, or for the prevention or ailments in human beings which bears either on itself or on its container or both, a name which is not specified in a monograph in a Pharmacopoeia." The respondents case is that the said product is used merely for protecting a cut or a wound from getting infected by dust and other substances, thus enabling the body system to cure itself. According to the respondent, its product does not cure nor does it have any curative properties. On the other hand the case of Revenue is that had the product been supplied in a mere sterile form, the respondents case could have been accepted but in this case the respondent adds a medicine namely Nitrofurozone after rendering the dressing sterile. The Revenues case is that the Nitrofurozone is meant for curing/ treating the cut or wound, as the case may be. In support of its case the Revenue relies upon the very advertisements issued by the respondent saying that it is a medicina