Page 115 - ELT_1st August 2020_Vol 373_Part 3

2020 ] MACLEODS PHARMACEUTICALS LTD. v. UNION OF INDIA 297

was held to be dutiable under the M & TP Act by the said Government order. An
Affidavit has also been filed in reply to the Petition by the Commissioner of Cen-
tral Excise, Vasai-II, Division Thane-II, dated 7th November, 2003, wherein it is
stated that the Central Board of Excise and Customs vide their communication
dated 3rd April, 2000 had informed the Respondents that the commodity viz.
Dextropropoxyphene was correctly dutiable under the M & TP Act. It was stated
that the Petitioners ought to have claimed refund of the duty paid under the
Central Excise Act and having not claimed the refund, the Petitioners claim had
become time-barred and they were not entitled to make any claim.
9. Mr. Daruwalla, the Learned Counsel appearing for the Petitioners
has submitted that the above issue is no more res integra. This issue has been an-
swered by the Division Bench of this Court in U.S.V. Limited v. State of Maharash-
tra [2007 (3) Bom. C.R. 316 = 2009 (234) E.L.T. 587 (Bom.)] paragraph 13, of which
reads thus :-
13. Plain reading of the Notification dated 12th June, 1986 would disclose
that any medicinal preparations containing Dextropropoxyphene base per
dosage unit not more [than] 135 mg. are excluded from being classified as
narcotic drug or narcotic within the meaning of the said expression under
Section 2(h) of the said Act. Once the product of the petitioners discloses
Dextropropoxyphene-HCL which in terms contains Dextropropoxyphene
base to the extent of 70 mg., which fact has not been disputed by the re-
spondents at any stage of the proceedings, even in the affidavit in reply
filed by them, obviously such a product would stand exempted in terms of
the said notification and would not be classifiable as narcotic drug or nar-
cotic under the said Act.
10. The said judgment of this Court has considered the notification dat-
ed 12th June, 1986 and its applicability and as set out above held that the subject
formulation of Dextropropoxyphene being less than 135 mg. viz. 70 mg. would
stand exempted in terms of the said notification and not classified as a narcotic
drug or narcotic under the said Act. The said judgment has also considered the
Supreme Court judgment relied upon in the Central Government order dated
13th April, 1999, in paragraph 15, which reads thus :
The decision of the Apex Court in (M/s. Baidyanath Ayurved Bhawan Pvt.
Ltd., Jhansi v. The Excise Commissioner, UP and Ors.), reported in AIR 1971
S.C. 378 was on totally different issue where the quantity of Dextropropox-
yphene or any similar such product was not in issue. The issue in that case
was, whether the medicinal preparations contain alcohol or not. The quanti-
ty of alcohol was not subject matter to adjudicate. In the matter in hand, the
quantity of Dextropropoxyphene is most relevant factor to decide, whether
the product can be called as narcotic drug or narcotic under the said Act
and as already seen above, the product of the Petitioners cannot be consid-
ered as containing narcotic drug or narcotic.
11. Mr. Daruwalla has accordingly submitted that the very same issue
having already been answered by the Division Bench of this Court in favour of
the Petitioner the demand of duty payable under the M & TP Act in the present
case is thoroughly untenable. It was held in the said judgment that the State
Government shall reimburse the Central Government regarding the liability of
the Petitioners for Central Central Excise duty during the period for which the
Petitioners have paid duty @ 20%. Mr. Daruwalla has submitted that in the pre-
sent case the Petitioners had stopped manufacturing of the subject formulations
upon the interim order dated 4th May, 1999 having been passed. However, the
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