Page 113 - ELT_1st August 2020_Vol 373_Part 3

2020 ] MACLEODS PHARMACEUTICALS LTD. v. UNION OF INDIA 295

ing more than 135 mgs. of Dextropropoxyphene per dosage unit - Since, item
containing less than 135 mgs. i.e. 65 mgs. of Dextropropoxyphene, subject for-
mulations excluded from being classified as Narcotic Drug - Petitioner not lia-
ble to State Excise Duty - Impugned demand notice quashed. [paras 13, 14, 15,
16]
Petition disposed of
CASES CITED
Baidyanath Ayurved Bhawan (P) Ltd. v. Excise Commissioner
— 1999 (110) E.L.T. 363 (S.C.) — Referred ................................................................................... [Para 8]
USV Limited v. State of Maharashtra — 2009 (234) E.L.T. 587 (Bom.) — Followed ................. [Paras 9, 13]
REPRESENTED BY : S/Shri Hormaz Daruwalla with Ravi Gandhi, i/b
M/s. Kanga & Co., for the Petitioner.
S/Shri A.I. Patel, AGP and Jitendra B. Mishra, for
the Respondent.
[Judgment per : Riyaz I. Chagla J. (Oral)]. - The issue which arises for
determination in this Petition is whether formulations containing less than 135
mgs. i.e. 65 mgs. of Dextropropoxyphene can be classified as ‘Narcotic Drug’ or
‘Narcotic’ within the meaning of Section 2(h) of the Medicinal and Toilet Prepa-
rations (Excise Duties) Act, 1955 (“for short M & TP Act”) and liable to State Ex-
cise Duty.
The brief facts that arise in the present case are as under :-
2. The first Petitioner is a company manufacturing Pharmaceutical
formulations viz. Ibruven Forte, Centrivon and Spasmovan (in short subject for-
mulations) under Chapter 30 of the schedule to the Central Excise Tariff Act,
1985. The second Petitioner is the Chief Executive of the first Petitioner. The Peti-
tioners are having a factory, inter alia, at Palghar, Dist. Thane.
3. By a notification dated 12th June, 1986, the first Respondent inter alia,
declared Dextropropoxyphene to be a ‘Narcotic Drug’ for the purpose of the M &
TP Act and Entry No. 86 was inserted, which read thus :-
“(+) - 4 - dimethylamino - 1 - 2 diphenyl - 3 - methyl - 2 - butanol propio-
nate, (the international non-proprietary name of which is Detropropoxy-
phene), and its salts, preparations, admixures, extracts and other substances
containing any of these drugs, except preparations for oral use containing
not more than 125 miligrams of Dextropropoxyphene base per dosage unit
or with a concentration of not more than 2.5 per cent in undivided prepara-
tions, provided that such preparations do not contain, provided that such
preparations do not contain any substance controlled under the Convention
on psychotropic substances, 1971 adopted by the United Nations Confer-
ence at Vienna in February, 1971”.
4. The Petitioners had been advised that the subject formulations were
liable to duty under Chapter 30 of the Central Excise Tariff Act, 1985 and not
covered by the M & TP Act, 1955 since they contained 65 milligram of Dextro-
propoxyphene i.e. less than 135 mgs. per doze under the Notification. The Peti-
tioners had claimed the subject formulations were liable to duty under Chapter
Heading 3003 of Central Excise Tariff Act, 1985 and not under the M & TP Act.
5. Respondent No. 4 issued a show cause notice on 24th October, 1997
calling upon the Petitioners to submit information in a form attached to the no-
tice. The Petitioners submitted the information called for by the show cause no-

EXCISE LAW TIMES  1st August 2020  113