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The Central Excise Tariff Act, 1985 (hereinafter referred to as ‘CETA’) under Chapter 30 of the Schedule (2) deals with pharmaceutical products for the purposes of tariff. At the relevant time, if a product is held to be medicament, then, the rate of duty was 15% and, if not, 70%. Heading 30.03 deals with the medicaments including veterinary medicaments. – ‘Care or cure’, is the clue for the resolution of the lis arising in these cases. If the product by name ‘Moisturex’ is held to be a medicament for cure, the decision goes in favour of the assessee and if the product is held to be one for care of the skin, the decision benefits the Central Excise. The Tribunal has held in favour of the assessee and, thus, the Central Excise is in appeals.= In the case of ‘Moisturex’, there is no dispute that the said cream is prescribed by the dermatologist for treating the dry skin conditions and that the same is also available in chemist or pharmaceutical shops in the market. The cream is not primarily intended for protection of skin. The ingredients in the cream, the pharmaceutical substances do show that it is used for prophylactic and therapeutic purposes. The Central Excise Tariff Act has unambiguously clarified as to what is a medicament for curing an ailment relating to skin. Heading 33.04 dealing with beauty or make-up preparations and preparations for the care of the skin has specifically excluded medicaments. There is also an indication under the same entry that medicinal preparations used to treat certain complaints are to be provided under the Heading 30.03 (medicaments) or 30.04 (products containing pharmaceutical substances used for medical, surgical, dental or veterinary purpose). 21. Tribunals, the Customs, Excise and Gold (Control) Appellate Tribunal,West Zonal Bench at Mumbai in the first case and Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai in the other, having regard to the pharmaceutical constituents present in the cream ‘Moisturex’ and its use for the cure of certain skin diseases, have rightly held that the same is a medicament liable to be classified under the Heading 30.03 (medicament). Thus, there is no merit in these appeals. They are accordingly dismissed. No costs.

  published in http://judis.nic.in/supremecourt/filename=40649 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6988 OF 2003 Commissioner of Central Excise, Mumbai IV … Appellant (s) Versus M/s. Ciens Laboratories, Mumbai … Respondent (s) WITH CIVIL APPEAL NO. 4434 OF 2004 Commissioner of Central Excise, Thane-II … Appellant (s) Versus M/s. Time Pharma, Mumbai … … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD This petition is for condonation of delay in filing the appeal. The impugned order refusing the grant of product patent was passed on 22.03.20008. Aggrieved by that order, review was filed on 22.05.2008. This was dismissed on 20.06.2008 and another order was passed on 01.07.2008 by which both the process and product patents were refused and aggrieved by this the petitioner filed Writ Petition in November, 2008, after four months. =“27. In view of the decision of this Court as detailed hereinbefore, this Court declines to exercise its jurisdiction under Article 226 to entertain this petition, not because it does not have the power to do so, but because in the considered view of this Court, the Petitioner has an efficacious remedy by way of an appeal under Section 117 A of the Patents Act before the IPAB. The order refusing the grant of patent is in fact an order under Section 15 of the Patents Act which in terms of Section 117 A is an appealable order. If the appeal before the IPAB is filled by the Eli Lilly & Co within a period of two weeks from today, accompanied by an application for condonation of delay in filing the appeal, the IPAB will consider and decide such an application, after hearing RLL. The IPAB will take into account the period during which Eli Lilly & Co.’s review application against the order dated 22nd March 2007 and thereafter the present writ petition were pending. All contentions of both Eli Lilly & Co. and RLL are left open to be urged before the IPAB which will be dealt with such contentions in accordance law. The petition is disposed of in the above terms.” 4. Therefore, since the appeal has been filed within time stipulated the delay is condoned. The maintainability of the appeal against the refusal of grant of product patent can always be objected when the matter is taken up for hearing. The Registry is directed to number the appeal, if otherwise found in order. M.P.No.52/2011 stands disposed of. No order as to costs.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443 Anna Salai, Teynampet, Chennai-600018 (Circuit Bench Sitting at Delhi) M.P.No.52/2011 AND COD NO.20/2010 IN SR.NO.77/2010/PT/IPAB FRIDAY, THIS THE 21ST DAY OF OCTOBER, 2011     HON’BLE SMT. JUSTICE PRABHA SRIDEVAN            … CHAIRMAN HON’BLE SHRI D.P.S.PARMAR                                       … TECHNICAL MEMBER (PATENTS)   Eli Lilly & Co., A … Continue reading

Coming to the credibility of the defence witnesses, we have already noticed that Ex.D1 is a document created by the defence just to escape the punishment under law. If that is what the deceased wanted to say, she had a number of opportunities to say so, freely and voluntarily. However, in presence of the Tehsildar and twice in presence of the Police, she made the same statement implicating her husband Bhajju of pouring kerosene oil on her and putting her on fire. Where was the necessity of typing an affidavit and getting the same thumb-marked by the deceased when she was suffering 60% burn injuries. If the version given in 23 this affidavit was true, we see no reason why the deceased should have stated before the police and the Tehsildar what she did. The two defence witnesses, namely Prabhat Kumar Sharma, DW1 and Laxmi Prasad Yadav, DW2, were examined by the defence to prove its innocence. DW1, the Notary Public, does not state as to where, when and at whose instance the affidavit was typed. This witness has completely failed to explain as to why the photograph of the deceased was fixed on the affidavit. If it was the requirement of law, then why the photograph of a date prior to the date on which the affidavit was sworn and attested, was affixed on the affidavit. This witness also admitted in his cross-examination that he knew that the affidavit was being sworn for belying a statement made earlier, but he made no enquiries from the deceased or from any other proper quarters to find out what was the previous statement of the deceased. It will not be safe for the Court to rely on the statement of this witness. DW2, is the person who had typed the affidavit, Ex.D1. He knew Medabai. According to this witness, the contents were typed on the basis of what Medabai had stated. There are contradictions between the statements of DW1 and DW2. We do not think that these witnesses are reliable and their statements are trustworthy. We would expect a Notary Public to maintain better professional standards rather than act at the 24 behest of a particular party. 24. For these reasons, we find no ground to interfere in the concurrent judgments of conviction and order of sentence. The appeal is without merit and is dismissed accordingly.

1   REPORTABLE   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.301 OF 2008     Bhajju @ Karan Singh … Appellant Versus State of M.P. … Respondent     J U D G M E N T   Swatanter Kumar, J.   1. The present appeal is directed against the … Continue reading

AUSTRALIAN TRADE MARK OFFICE= SIMILAR GOODS – TRADE MARKS DECEPTIVELY SIMILAR

TRADE MARKS ACT 1995 DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS   Re: Trade mark application number 1362576(5) – LIV.52– in the name of Himalaya Global Holdings Ltd.   DELEGATE: Iain Thompson REPRESENTATION: Applicant: Cathryn Warburton of Acacia Law DECISION: 2012 ATMO 9 s33 proceedings – s44 ground for rejection – similar goods – … Continue reading

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