G. Sankaran, Senior Vice-President

1. This is an appeal against the Collector (Appeal)'s Order No. 353-CE/KNP/85 dated nil setting aside the order dated 9-1-1981 passed by the Assistant Collector of Central Excise, Kanpur, confirming a demand for Rs. 1,09,759.06 against the respondents.

2. Briefly stated, the facts of the case are that the respondents manufacture medicines. During the period from 1-3-1978 to 30-6-1979, they effected clearance of certain medicines at nil rate of duty. The pilfer proof caps ("P.P. Caps", for short) fixed to the containers had on them the legend "Bengal Chemicals" which the Department, construed, rejecting the respondents' contention to the contrary, was a brand name rendering the medicines liable to classification and assessment to duty as "Patent or Proprietary Medicines" under Item No. 14E of the First Schedule ("the CET", for short) to the Central Excises and Salt Act, 1944. According to the Assistant Collector, the respondents had suppressed the fact of registration of the words "Bengal Chemical" under the Trade & Merchandise Marks Act, 1958, and therefore, no part of the demand for duty, though issued on 19-11-1979, was barred by limitation. In appeal, the Collector (Appeals) held that the said legend was not such as to attract the mischief of Item 14E, CET. It is this order that has been challenged in the present appeal.

3. We have heard Shri S. Chakravorty, DR, for the Appellant Collector and Shri O.P. Gupta, Senior Production Officer of the respondent company and have perused the record.

4. It was contended for the appellant that the existence of the above-noted legend (a registered trade mark) on the P.P. Caps established the connection between the medicines and the owner of the trade mark. Therefore, Item 14E was specially attracted. Shri Chakravorty relied on the Allahabad High Court judgment in the case of Ramsey Pharma Private Ltd. - MANU/UP/0182/1976 : 1983 (12) E.L.T. 78 (All.) and Government of India's Order-in-Revision No. 975 of 1979, dated 21-11-1979 in the case of Dabur(Dr. S.K. Bur-man) Pvt. Ltd., Calcutta -1980 (6) E.L.T. 117 (G.O.I.).

5. The contention for the respondents, on the other hand, is that the said legend was always printed on all medicines, pharmaceutical or otherwise, manufactured by the respondents. It did not constitute a logo but was only the name of the manufacturer. Shri Gupta cited the Tribunal's order in Agam & Gem Laboratories v. Collector of Central Excise- MANU/CE/0274/1988 : 1988 (38) E.L.T. 479 (Tribunal) and the Madras High Court judgment in Indo French Pharmaceutical Co., Madras v. Union of India and Ors. - 1978 (2) E.L.T. (J 478).

6. We have carefully considered the submissions of both sides. The explanation to Item 14E, CET, defines "Patent or Proprietary Medicines" as 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 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. There is no dispute that the legend "Bengal Chemicals" is a registered trade mark under the Trade and Merchandise Marks Act, 1958. But this alone is not decisive. To attract the mischief of the above explanation, the registered trade mark should be one which is used in re