P.C. Jain, Member (T)

1. Questions involved in this appeal filed by the Collector, Central Excise are as follows :-

(1) Whether the products Bifuran Supplement Neftin-50 and Neftin-200 are patent or proprietary medicines as defined in Tariff Item 14E or under 68 of the C.E.T. as it then stood.

(2) If the aforesaid products are classifiable under Tariff Item 68 whether they are entitled to the benefit of Notification No. 6/84 dated 15-2-1984 as it amended Notification 234/82-C.E., dated 1-11-1982. The exemption given by the aforesaid notification is applicable to animal feed including livestock feed, animal feed supplement and animal feed concentrates. In other words whether the products are animal feed supplement as claimed by the respondent-company.

2. In order to appreciate the above questions, the exact composition of products manufactured by the respondent company are as follows :

3. It is appropriate at this stage to set out the definition of patent or proprietary medicines as given in Tariff Item 14E and of the animal feed supplement as given in Notification No. 6/84-C.E. (mentioned supra) -

Definition of patent or proprietary medicine in T.I. 14E.

Explanation I. - '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 other mark such as a 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 the medicine and some person, having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person."

(emphasis supplied)

Definition of animal feed supplement in Notification 6/84. "Explanation II. - For the purpose of this notification, the expression, -

(i) "animal feed supplements" means an ingredient or combination of ingredients, added to the basic feed mix or parts thereof to fulfil a specific need, usually used in micro quantities and requiring careful handling and mixing."

4. It may also be mentioned at this stage that the respondent company after issue of the Notification 6/84 dated 15-2-1984 filed a revised classification for the aforesaid products under Tariff Item 68 claiming the benefit of the said notification w.e.f . 1-3-1984. Prior to the issue of this notification the admitted position on both sides is that the respondent company was paying duty on the said products under Tariff Item 14E. In the first instance the classification lists had been approved on 4-6-1984 as claimed by the respondent company. Later on, however, a show cause notice dated 31-1-1985 was issued to the respondent company as to why the said products be not classified under Tariff Item 14E and exempt on granted to them w.e.f. 1-3-1984 be not withdrawn and why the duty involved on the clearances of the said products be not demanded under Section 11A of the Central Excises and Salt Act, 1944.

5.1. Issue No. (1). - The Asstt. Collector in de novo proceedings, on remand from the Collector (Appeals), has held these products to be liable to duty under Tariff Item 14E. Accordingly, he has denied the benefit of Notification 6/84 dated 15-2-1984. In a very detailed order the Asstt. Collector, after taking into account the definition of the patent or proprietary medicine under Item 14 E, the available literature on the products or ingredients thereof in standard books such as British Pharmacopoeia and British Pharmacopeia