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PETITIONER: ESKAYEF LIMITED

       Vs.

RESPONDENT: COLLECTOR OF CENTRAL EXCISE

DATE OF JUDGMENT14/09/1990

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) KASLIWAL, N.M. (J)

CITATION:  1990 SCR  Supl. (1) 442  1990 SCC  (4) 680  JT 1990 (4)    85        1990 SCALE  (2)497

ACT:     Central Excises and Salt Act, 1944: First Schedule  Item 14E-Bifuran  Supplement, Neftin-50  and  Neftin-200--Whether chargeable  to  excise duty as patent or  proprietary  medi- cines.

HEADNOTE:     Item  14-E of the First Schedule to the Central  Excises and Salt Act, 1944 at the relevant time dealt with patent or proprietary medicines not containing alcohol, opium,  Indian hemp  or  other narcotic drugs or narcotics.  Explanation  I thereto  defined ’patent or proprietary medicines’  to  mean any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the preven- tion  of ailments In human beings or animals. Item 68  dealt with all other goods, not elsewhere specified but  excluding alcohol,  opium,  Indian hemp and other narcotic  drugs  and narcotics.     The Central Government by a notification dated  February 28,  1982 exempted certain goods falling under Item 68  from the  levy of central excise duty. Entry at S. No. 10 in  the schedule  annexed thereto read "animal feed  including  com- pound livestock feed". The said notification was  superseded by  notification dated November 1, 1982 which also  provided the  same exemption. This notification was again amended  by notification dated February 15, 1984. Entry at S. No. 10  in the  schedule thereto read "animal feed  including  compound livestock  feed,  animal  feed supplement  and  animal  feed concentrates".     A  question  arose  as to  whether  Bifuran  Supplement, Neftin-50 and Neftin-200 manufactured by the appellant  were chargeable to excise duty as patent or proprietary medicines under  Item  14-E  or could be classified  as  "animal  feed supplement"  under  Item  68 and exempted  from  payment  of excise duty. The Assistant Collector of Central Excise  held that  the said formulations were classifiable  under  Tariff Item 14-E. His order was, however, set aside by the  Collec- tor  of  Central  Excise (Appeals) who held  that  the  said products were animal feed supplements which merited  classi- fication  only  under the erstwhile Tariff Item 68  and  not under  Tariff  Item 14-E. On appeal by the  Department,  the Tribunal held that the aforesaid three products manufactured

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by the 443 appellant were patent and ’proprietary medicines as  defined in  Tariff Item 14-E inasmuch as they have  therapeutic  and preventive  use in respect of the specific ailments in  ani- mals,  that  if the products satisfied the  requirements  of Tariff Item 14-E there was no question of considering  their classification  under Tariff Item 68 which was  a  residuary item.     In this appeal under s. 35-L of the Act it was stated on behalf  of the appellant that since the use of Bifuran  Sup- plement  was to promote growth rate, weight-gains  and  feed conversion  efficiency  in growers and broilers  by  keeping coccidiosis away during growing period, it could be regarded as  a  preventive medicine falling under Tariff  Item  14-E. However, in respect of Neftin-50 and Neftin-200 it was urged that these were manufactured for use as animal feed  supple- ment  and  not  for use as medicines  and,  therefore,  they should have been classified as animal feed supplement  under Tariff  Item  68 and exempted from payment  of  excise  duty under  notification dated February 15, 1984. It was  further contended that the appellant had been subjected to arbitrary and  hostile  discrimination as similar  products  of  other manufacturers  were  being exempted from payment  of  excise duty under the said notification. For the respondent it  was contended  that Neftin-50 contains Furazolidone 5%  w/w  and Neftin-200 contains Furazolidone 20% w/w, that  Furazolidone is  used as an aid in the prevention of coccidiosis as  well as  for  treatment of coccidiosis, that  Furazolidone  is  a patent  drug and in England it is sold to the public on  the prescription  of  a registered practitioner  only  that  the finding that these two products were patent and  proprietary medicines  failing under Tariff Item 14-E was essentially  a finding  of  fact based on the materials placed  before  the excise  authorities  and the said finding was  not  normally open  to challenge in appeal, that the  other  manufacturers whose  products  were  exempted were  located  at  different places  and  were  assessable to excise  duty  by  different authorities,  and that the relevant notifications have  been wrongly  applied  to those manufacturers  by  the  concerned authorities. Dismissing the appeal, the Court,     HELD:  1. Item 68 of the Excise Tariff was  a  residuary entry which dealt with all other goods not elsewhere  speci- fied.  A product which is found to be covered by  the  other items of the Schedule of the Excise Tariff would be  outside the ambit of Item 68. [260F]     Dunlop  India  Ltd. v. Union of India & Ors.,  [1976]  2 S.C.R. 98 and Collector of Central Excise, Kanpur v. Krishna Carbon Paper Co., [1989] 1 S.C.C. 150, referred to. 444     2.  What is required for purposes of Item 14-E  is  that the  product must be a preparation for use in the  treatment or prevention of ailments in human beings or animals. Furaz- olidone  is an antibacterial, antifungal  and  antiprotozoal compound. It is used for prevention and treatment of coccid- iosis as well as histomoniasis in poultry. In England  it.is a  veterinary  drug and it can be sold or  supplied  to  the public  on a practitioner’s prescription only.  Furazolidone is  thus a drug or medicinal preparation used for  treatment and  prevention of ailments in poultry. Since Neftin-50  and Neftin-200 contain only Furazolidone, the said products  are also  drugs or medicinal preparations for use in the  treat- ment  and  prevention  of ailments in  poultry.  They  have, therefore,  to be regarded as patent and  proprietary  medi-

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cines chargeable to excise duty under Item No. 14-E.  [262E- G]     Annapurna Carbon Industries Co. v. State of A.P [1976] 3 SCR 561, referred to.     3.  The exemption under notification dated  November  1, 1982, as amended by notification dated February 15, 1984 was confined  in its application to specified goods  which  fell under Item 68. The said notification did not grant exemption in  respect of a product failing in any other entry ’of  the excise  tariff. It could not be construed as transferring  a product  from  an entry other than Item 68 to Item  68.  The insertion of ’animal feed supplement’ in Entry No. 10 in the schedule  to the notification dated November 1, 1982 by  the notification dated February 15, 1984, would not mean that  a product  which  was liable to payment of excise  duty  under Item  14-E  prior  to such insertion would cease  to  be  so liable and would become exempt from such payment of duty  by virtue of that notification. Prior to the notification dated February  15, 1984, the appellant was paying excise duty  on Neftin-50 and Neftin-200 as patent and proprietary medicines failing under Item 14-E. In the absence of any  notification granting exemption in respect of products falling under Item 14-E,  Neftin-50 and Neftin-200 could not be claimed  to  be exempt  from Central Excise duty as animal feed  supplement. [263F-H; 264A-B]     4.  It was not the case of the appellant that  the  same authority  had  passed  orders  discriminating  between  the appellant and other producers of similar products. Nor it is said that there has been intentional and systematic discrim- ination in favour of the producers other than the appellant. The discrimination complained of arose on account of  orders passed  by different excise authorities  acting  quasi-judi- cially.  Merely  because  on account of  difference  in  the interpretation  of the relevant notifications by the  excise authorities in other regions other manufac- 445 turers  of similar products in those regions  were  enjoying exemption from payment of such duty the same exemption could not  be extended to it. The appellant could not obtain  such an  exemption in disregard of the law by invoking the  right to equality before the law and equal protection of the  laws guaranteed  under Article 14 of the  Constitution.  [264G-H; 265A-B]      Narain Dass v. The Improvement Dust, Amritsar, &  Anr., AIR 1972 S.C. 865, referred to.     Cumberland  Coal Co. v. Board of Revision, 76  Law  Edn. 147;  Iowa-Des Moines National Bank v. E.R. Bennett, 76  Law Edn.  265; Vishnudas Hindumal v. State of Madhya  Pradesh  & Ors.,  [1981]  3 S.C.R. 234 and Ramnath Verma  v.  State  of Rajasthan, [1963] 2 S.C.R. 152, distinguished.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4457  of 1989.     Appeal  under Section 35-L(b) of the Central Excise  and Salt  Act, 1944 from the Order No. 285/89-C dated  the  29th June, 1989 of the Customs, Excise and Gold (Control), Appel- late Tribunal, New Delhi in Appeal No. E/2489/87-C.     K.K.  Venugopal, D. Shroff, Ravinder Narain, Raj  Darak, P.K. Ram and D.N. Mishra for the Appellant.     Kapil Sibal, Additional Solicitor General, P. Parmeshwa- ran and Ms, Indu Malhotra for the Respondent. The Judgment of the Court was delivered by

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   S.C.  AGRAWAL,  J.  This appeal  involves  the  question whether  the  products, Bifuran  Supplement,  Neftin-50  and Neftin-200, manufactured by the appellant, are chargeable to excise duty as ’patent or proprietary medicines’ under  Item 14-E  of the First Schedule to the Central Excise  and  Salt Act, 1944, (hereinafter referred to as the ’Excise  Tariff’) or  the  said products are exempted from excise  duty  under notification  No.  6/84 dated February 15, 1984,  as  animal feed  supplement.  At  the relevant time Item  14-E  of  the Excise Tariff was as under. "14-E  Patent or proprietary medicines not containing  alco- hol, opium, Indian Hemp or other narcotic drugs or 446 other narcotics other than those medicines which are  exclu- sively Ayurvedic, Unani, Sidha or Homeopathic. 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 or itself  or  on its container or both, a name  which  is  not specified  in a monograph in a pharmacopoeia,  formulacy  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  a proprietor  or  otherwise to use the name or  mark  with  or without any indication of the identity of that person. Explanation    II--’Alcohol’,   ’Opium’,   ’Indian    Hemp’, ’Narcotic  Drugs’ and ’Narcotics’ have the meanings  respec- tively  assigned to them in Section 2 of the  Medicinal  and Toilet Preparations (Excise Duties) Act, 1955."     Item  68  of the Excise Tariff was in the  nature  of  a residuary provision and it read as under: "All other goods, not elsewhere specified but excluding: (a)  alcohol,  all sorts, including  alcoholic  liquors  for human consumption; (b) opium, Indian Hemp and other narcotic drugs and  narcot- ics; and (c) dutiable goods as defined in Section 2(c) of the Medici- nal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955). Explanation--For the purpose of this Item, goods which 447 are  referred to in any preceding Item in this Schedule  for the purpose of excluding such goods from the description  of goods in that Item (whether such exclusion is by means of an Explanation  to  such Item or by words of exclusion  in  the description  itself or in any other manner) shall be  deemed to be goods not specified in that Item."     In  exercise of the powers conferred by sub-rule (1)  of rule  8 of the Central Excise Rules, 1944, the Central  Gov- ernment issued notification dated February 28, 1982  whereby the  goods  of the descriptions specified  in  the  Schedule annexed  to the said notification and falling under Item  68 of the Excise Tariff were exempted from the levy of  central excise  duty. Entry at S. No. 10 in the Schedule annexed  to the said notification was: "Animal feed including compound live stock feed."     The said notification dated February 28, 1982 was super- seded  by  notification dated November 1, 1982,  which  also

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exempted  from  levy  of central excise duty  goods  of  the description  specified in the Schedule annexed to  the  said notification  falling  under Item 68 of the  Excise  Tariff. Entry  at  S.  No. 10 in the Schedule annexed  to  the  said notification was in the same terms as in the previous  noti- fication  dated  February 28, 1982. The  notification  dated November 1, 1982 was amended by notification dated  February 15, 1984 whereby entry at S. No. 10 in the Schedule  annexed to  the notification dated November 1982 was substituted  by the following entry: "Animal feed including compound live stock feed, animal feed supplements and animal feed concentrates." By  the aforesaid notification dated February 15, 1984,  the following explanation was also inserted: "Explanation II--For the purposes of this notification.  the expression-- (i) "animal feed supplements" means an ingredient or  combi- nation 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; (ii) "animal feed concentrates" means a feed intended to 448 be  diluted with other feed ingredients to produce  complete food of optimum nutrient balance."     The  appellant  carries on business as  manufacturer  of pharmaceuticals.  Among the products manufactured by it  are Bifuran  Supplement, Neftin-50 and Neftin-200. Prior to  the notification  dated  February  15, 1984  the  appellant  was classifying the products mentioned above under Item 14E  and was  paying  central excise duty on that  basis.  After  the notification  dated February 15, 1984 the appellant filed  a classification list effective from March 1, 1984 whereby the above  mentioned  products were classified as  ’animal  feed supplements’  under Item 68 and exemption was claimed  under notification  dated February 15, 1984. The said  classifica- tion  list  submitted by the appellant was approved  by  the Assistant  Collector  of  Central Excise on  June  4,  1984. Subsequently the Assistant Collector realised that the  said classification had been wrongly approved and he gave a  show cause notice dated January 31, 1985 to the appellant wherein it  was stated that the above mentioned products  classified by  the  appellant  to be "animal feed  supplement"  do  not appear to fulfil the conditions enumerated in the  notifica- tion dated February 15, 1984 and the appellant was  required to show cause why the exemption granted to the said products should  not  be withdrawn. The appellant submitted  a  reply dated  March 29, 1985 to the said show cause  notice.  After considering  the  said reply Assistant Collector  passed  an order  dated  August 21, 1985 whereby it was held  that  the exemption  granted  to the above mentioned products  of  the appellant has to be withdrawn with effect from March 1, 1984 as  the  conditions  set out in the  Notification  No.  6/84 dated February 15, 1984 had not been fulfilled and the  duty involved on the clearance of the said formulations had to be paid  and  further  clearance could be  effected  under  the revised  classification  list by including  these  items  in Tariff  Item 14E. The’ said order was set aside, on  appeal, by  the Collector of Central Excise (Appeals) by  his  order dated  December 12, 1985 and the matter was remanded to  the Assistant Collector to decide the classification in  de-novo proceedings  after recording evidence to establish that  the product  has  definite therapeutic or preventive  value  for disease  in  animals.  Thereafter  the  Assistant  Collector initiated  de-novo  proceedings.  The  appellant   submitted written  submissions  and filed documents.  After  giving  a

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personal hearing to the representation of the appellant  the Assistant  Collector passed an order dated  November  17/21, 1986 holding that products Neftin-50, Neftin-200 and Bifuran Supplement  manufactured  by  the  appellant  are  correctly classifiable under erstwhile Tariff Item 14E and that effec- tive from February 8, 1986 the said products are 449 classifiable  under sub-heading 3003.9. The said  order  was set  aside by the Collector of Central Excise  (Appeals)  by his  order  dated  May  28. 1987. who  held  that  the  said products  are  animal feed supplements  and  these  products merit classification only under the erstwhile Tariff Item 68 and  not under Tariff Item 14E. Aggrieved by the said  order of  the Collector (Appeals) the Department filed  an  appeal before  the Customs, Excise & Gold Control Appellate  Tribu- nal,  which  was allowed by order dated June 29,  1989.  The tribunal held that the aforesaid three products manufactured by  the  appellant are patent and proprietary  medicines  as defined in Tariff Item 14E inasmuch as they have therapeutic and  preventive use in respect of the specific  ailments  in animals.  The  tribunal  was also of the view  that  if  the products  satisfy the requirements of Tariff Item 14E  there was  no question of considering their  classification  under Tariff Item 68, which is a residuary item. Aggrieved by  the said  order  of the tribunal the appellant  has  filed  this appeal under Section 35L of the Central Excise and SaIL Act, 1944.     During the course of arguments Shri K.K. Venugopal,  the learned counsel for the appellant fairly stated that accord- ing to the printed pamphlet issued by the appellant the  use of  Bifuran  Supplement is to promote growth  rate,  weight- gains and feed conversion efficiency in growers and broilers by keeping coccidiosis away during growing period, and  that the  said  product can be regarded  as  preventive  medicine failing  under Tariff Item 14E and he has confined his  sub- missions  in  respect  of the other  two  products,  namely, Neftin-50 and Neftin-200.     Shri  Venugopal has urged that Neftin-50 and  Neftin-200 are  manufactured  by the appellant for use as  animal  feed supplement  and not for use as medicine and  therefore  they should have been classified as animal feed supplement  under Tariff  Item  68 and were exempted from payment  of  central excise duty under notification dated February 15. 1984. Shri Venugopal  has invited our attention to the printed  litera- ture issued by the appellant for the sale of these  products as well as certain certificate issued with regard to the use of  these  products as additive to poultry  feed  and  their usefulness for that purpose. Shri Venugopal has pointed  out that  in  the printed literature it  has  been  specifically mentioned: "For use in poultry feed only. Not for medicinal use."     Shri Venugopal also pointed out that as regards uses  of Neftin-50  and Neftin-200 it is stated in the  said  printed literature: 450 "To improve egg production, feed/egg ratio and  hatchability in  layers;  to  increase weight-gains and  growth  rate  in broilers and growers."     The  learned Additional Solicitor General, on the  other hand,  has  urged that both these products  are  patent  and proprietary  medicines  chargeable to  central  excise  duty under Tariff Item 14E. In this connection the learned  Addi- tional  Solicitor  General has pointed  out  that  Neftin-50 contains Furazolidone 5% W/W and Neftin-200 contains Furazo- lidone  20%  W/W. The submission of the  learned  Additional

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Solicitor General is that Furazolidone is used as an aid  in the  prevention of coccidiosis as well as for  treatment  of coccidiosis  and that Furazolidone is a patent drug  and  in England  it is sold to the public on the prescription  of  a registered practitioner only. The learned Additional Solici- tor  General also urged that the finding that aforesaid  two products are patent and proprietary medicines falling  under Tariff  Item 14E is essentially a finding of fact  based  on the  materials placed before the excise authorities and  the said  finding  is not normally open to challenge  in  appeal before this Court. The submission of the learned  Additional Solicitor  General  is further that in the present  case  it cannot  be said that the aforesaid products manufactured  by the appellants can be regarded as animal feed supplement  as defined  in Explanation II, inserted by  notification  dated February 15,1984 in the notification dated November 1, 1982.     In the instant case we are not required to consider  the scope of two competing entries of the Excise Tariff  because Item  68  was a residuary entry which dealt with  all  other goods  not elsewhere specified. A product which is found  to be covered by the other items of the Schedule of the  Excise Tariff would be outside the ambit of Item 68. Therefore, the primary question to be considered is whether the products in question,  namely, Neftin˜50 and Neftin-200, are patent  and proprietary medicines falling within Item 14E.     In  this  context we may refer to the decision  of  this Court  in  Dunlop India Ltd. v. Union of India  and  Others, [1976]  2 SCR 98 where the question was whether  V.P.  Latex manufactured  by the appellant in that case was  raw  rubber and classifiable under Item 39 or it was classifiable  under the residuary entry contained in Item 87. It was found  that V.P.  Latex  fell  within Item 39 and in view  of  the  said finding it was held that it could not fall within the resid- uary entry of Item 87. It was observed: 451 "When  an article has, by all standards, a reasonable  claim to  be  classified under an enumerated item  in  the  Tariff Schedule, it will be against the very principle of classifi- cation to deny it the parentage and consign it to an orphan- age  of  the residuary clause. The question  of  competition between  two rival classification will, however, stand on  a different footing." (P. 113).     Similarly  in  Collector of Central  Excise,  Kanpur  v. Krishna  Carbon Paper Co., [1989] 1 S.C.C. 150 the  question was whether carbon paper was taxable under Item 17 or  under the  residuary  entry at Item 68. It was found  that  carbon paper was taxable as paper under Item 17(2) and,  therefore, it would not fall in the residuary entry at Item 68.     As  noticed earlier, Item 14E refers to patent  or  pro- prietary  medicines. The expression ’patent  or  proprietary medicines’ has been defined in Explanation I in Item 14E  to mean  any drug or medicinal preparation, in  whatever  form, for use in the internal or external treatment of, or for the prevention  of ailment in human beings or animals. What  is, therefore,  required is that the product must be a  prepara- tion  for use in the treatment or prevention of ailments  in human beings or animals. Neftin-50 contains Furazolidone  5% W/W and Neftin-200 contains Furazolidone 20% W. The  Assist- ant  Collector in his order dated 17/21 November,  1986  has referred to the following authorities on the subject. (a) British Pharmacopoeia 1980, Vol. I, wherein with  refer- ence to Furazolidone it has been stated: "A  yellow  crystalline powder, odourless, to  be  protected from light. An antibacterial, antifungal and  antiprotozol." (P. 205)

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(b)  British  Pharmacopoeia Codex 1979 wherein it  has  been stated: "A  bacteriacide  which is observed only slightly  from  the intestinal mucosa and has therefore been used in the  treat- ment of bacterial diarrhoea and gestro enteritis. It is also active against, "Giardia lamblia." "Furazolidone is used in animals as an antibacterial agent 452 and for the promotion and treatment of histomoniasis." "For histomoniasis in poultry, the usual prophylectic dosage is  100 ppm in the feed and the usual therapeutic dosage  is 400 ppm in the feed for 10 days." (P. 376) (c)  Scientific  Foundations of  Veterinary  Medicine,  1980 Edn.: "Bloody or cecal coccidiosis is an acute hemorrhagic disease and is the most severe form of coccidiosis in chickens." "Furazolidone is fed continuously at 0.0055% in the feed  as an aid in the prevention of coccidiosis caused by E.  tenel- la, E. necatrix, and E. acervulina. Furazolidone can also be used  for the treatment of these same coccidia species  when fed at 0.011% for 5 to 7 days." (P. 193) (d) Medicines and Poisons Guide, 2nd Edn. 1980, prepared  by the Law Department of Pharmaceutical Society of Great  Brit- ain: "Furazolidone is a prescription only veterinary drug and  by virtue  of  an entry in the  medicines  order  (prescription only) may be sold or supplied to the public only on a  prac- titioner’s prescription." (P. 59)     These  observations  indicate that  Furazolidone  is  an antibacterial,  antifungal and antiprotozol compound and  it is used for prevention and treatment of coccidiosis as  well as  histomoniasis  in poultry. From this  material  it  also appears that in England Furazolidone is a prescription  only veterinary drug and it can be sold or supplied to the public on a practitioner’s prescription only. Furazolidone is  thus a  drug  or  medicinal preparation used  for  treatment  and prevention  of ailments in poultry and since  Neftin-50  and Neftin-200 contain only Furazolidone, the said products  are also  drugs or medicinal preparations for use in the  treat- ment and prevention of ailments in poultry. In this  context it  would be relevant to mention that apart  from  Neftin-50 and  Neftin-200 the appellant also manufactures Neftin  Tab- lets.  The  appellant has not disputed that  Neftin  Tablets manufactured by it are drugs or medicines falling within the ambit  of  Item 14E and it pays central excise duty  on  the same.     Shri  Venugopal  has laid stress on the word  "used"  in Explanation  I  in Item 14 ,red has  submitted  that  Neftin Tablets are manufactured 453 for  use  as medicine whereas Neftin-50 and  Neftin-200  are manufactured  for use as animal feed supplement and are  not manufactured for use as medicine. Shri Venugopal has invited our  attention  to the decision of this Court  in  Annapurna Carbon  Industries Co. v. State of Andhra Pradesh, [1976]  3 S.C.R. 561. In that case the question for consideration  was whether  Cinema Arc Carbons were taxable to sales tax  under the  entry relating to cinematographic equipment  and  parts and  accessories  ’required for use therewith’.  This  Court held  that the main use of the arc carbon was proved  to  be that  of production of powerful light used in projectors  in cinemas  and the fact that they can also be used for  search lights, signalling, stage lighting or where powerful  light- ing for photography or other purposes may be required, could not detract from the classification to which the carbon  arc

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belong,  which is determined by their ordinary  or  commonly known  purpose or user and hence their sale was  subject  to sales tax under the said entry. Here we find that  Neftin-50 and  Neftin-200 contain Furazolidone which  is  administered for  prevention and treatment of ailments viz.,  Coccidiosis and  Histomoniasis in poultry. Merely because Neftin-50  and Neftin-200 can also be used for improving egg production and increase  in  growth rate of broilers would not in  any  way detract  from the fact that the said products are  medicines for  use  in  the treatment and prevention  of  ailments  in poultry. Once it is found that Neftin-50 and Neftin-200  are medicines  for use for treatment and prevention of  ailments in  poultry they have to be regarded as patent and  proprie- tary medicines chargeable to excise duty under Item No.  14E and  the  question  whether the said products  fail  in  the residuary, entry at Item 68 does not arise.     The exemption from payment of central excise duty  which has  been granted under notification dated November 1,  1982 as  amended  by  notification dated February  15,  1984,  is confined in its application to goods specified in the Sched- ule  annexed to the said notification which fall under  Item 68.  The said notification does not grant exemption  in  re- spect of a product falling in any other entry of the  excise tariff.  It  cannot be construed as transferring  a  product from  an entry other than Item 68 to Item 68. The  insertion of  animal feed supplement in the Schedule to the  Notifica- tion dated November 1, 1982 by the Notification dated Febru- ary 15, 1984, would not mean that a product which was liable to  payment of central excise duly under Item 14E  prior  to such insertion would cease to be so liable and would  become exempt from such payment of duty by virtue of this notifica- tion.  It  is not disputed that prior  to  the  notification dated  February 15, 1984. the appellant was  paying  central excise duty on Neftin-50 and Neftin-200 454     patent and proprietary medicines falling under Item 14E. In  the  absence of any notification granting  exemption  in respect  of products falling under Item 14E,  Neftin-50  and Neftin-200,  which  are  patent  and  proprietary  medicines falling  under Tariff Item 14E and which do not  fall  under the  residuary  entry at Item 68, cannot be  claimed  to  be exempt  from central excise duty as animal  feed  supplement under  notification  dated November 1, 1982, as  amended  by notification dated February 15. 1984.     Shri Venugopal has contended that the appellant has been subjected  to arbitrary and hostile discrimination  inasmuch as similar products of other manufacturers which contain the same percentage of Furazolidone as Neftin-50 and  Neftin-200 are being exempted from payment of central excise duty under notification dated November 1, 1982. as amended by notifica- tion  dated February  15,  1984. In support of this  submis- sion  Shri Venugopal has invited our attention to  the  pam- phlets  issued by other manufacturers about  their  products and  the  contents  of those products.  Shri  Venugopal  has placed  reliance on the decisions of the U.S. Supreme  Court in Cumberland Coal Co. v. Board of Revision, 76 Law Edn. 147 and  Iowa-Des Moines National Bank v. E.R. Bennett,  76  Law Edn. 265 as well as the decision of this Court in  Vishnudas Hindumal Etc. v. State of Madhya Pradesh and Ors., [1981]  3 S.C.R.  234.  The learned Additional Solicitor  General  has submitted  that the other manufacturers referred to by  Shri Venugopal are located at different places and are assessable to  excise  duty by different authorities  and  that  merely because the relevant notifications have been wrongly applied to those manufacturers by the concerned authorities and  the

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said  manufacturers  are  enjoying exemption  from  duty  in respect  of their products would not mean that the  impugned order  passed against the appellant is liable to be  quashed on  the ground on violation of the right to  equality  under Article  14  of  the Constitution.  The  learned  Additional Solicitor General has also stated that proceedings would  be initiated  against those manufacturers in the light  of  the decision of this Court in this case.     It  is not the case of the appellant that the  same  au- thority has passed orders discriminating between the  appel- lant and other producers of similar products. The  grievance of  the  appellant is that on account of difference  in  the interpretation  of  notification dated  February  15,  1984, amending notification dated November 1, 1982, by the  excise authorities  in other regions while the appellant  is  being required  to  pay excise duty on  Neftin-50  and  Neftin-200 manufactured by it, other manufacturers of similar  products in other regions are 455 enjoying exemption from payment of such duty. The appellant, in  substance, wants that because other producers have  been granted exemption, though wrongly, the same exemption should be extended to it. In our opinion this is impermissible. The appellant  cannot obtain such an exemption in  disregard  of the law by invoking the right to equality before the law and equal protection of the laws guaranteed under Article 14  of the Constitution. A similar question arose before this Court in Narain Dass v. The Improvement Trust, Amritsar & Another, AIR 1972 S.C. 865. In that case it was contended that  while administering Section 56 of the Punjab Town Improvement Act, 1922,  there  had been hostile  discrimination  against  the appellants because lands under orchards belonging to persons similarly  placed had been exempted whereas  the  appellants had  been refused exemption. Rejecting this contention  this Court has observed: "In  any event if the appellants had failed to  bring  their case within Section 56 of the Act, then merely because  some other  party had erroneously succeeded in getting his  lands exempted ostensibly under that Section that by itself  would not  clothe  the present appellants with a right  to  secure exemption  for their lands. The rule of equality before  the law or of the equal protection of the laws under Article  14 could not be invoked in such a case."     In  Cumberland  Coal  Co. (Supra)  and  Iowa-Des  Moines National Bank (supra) it was found that there was intention- al  and systematic discrimination in favour of certain  per- sons by the officials administering the law. In the  instant case  it  is not said that there has  been  intentional  and systematic  discrimination in favour of the producers  other than  the appellant. The said decisions have,  therefore  no application to the present case.     Vishnudas  Hindureal v. State of Madhya Pradesh  (Supra) was  in  respect of a scheme for  nationalisation  of  motor transport  whereunder the permits of the  appellants  before this Court had been curtailed and they were prohibited  from operating their stage carriages on that portion of the route for  which they had permits which was overlapping  with  the notified route while others similarly situate were permitted to ply their stage carriages over the routes for which  they had  permits  passing over a portion of the  notified  route without any let or hindrance and their permits were  neither curtailed nor cancelled. This Court found that this was  due to  an error or omission on the part of the Regional  Trans- port Authority in not supplying full information to the 456

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Special  Secretary about all the valid permits in  force  at the  relevant date, After referring to the decision of  this Court  in  Ramnath  Verma v. State of  Rajasthan,  [1963]  2 S.C.R.  152  wherein it was held that  discrimination  under Article  14 is conscious discrimination and  not  accidental discrimination that arises from oversight which the State is ready to rectify, this Court observed:      "  We did not find any willingness on the part  of  the State authorities to rectify the error in the High Court  or before this Court."     In these circumstances. this Court, instead of rejecting the  whole scheme, considered it appropriate to rectify  the same  by removing the discrimination by putting  the  appel- lants  before it in the same class as those who had  enjoyed favourable  treatment  by inadvertance on the  part  of  the Regional  Transport Authority. The present case stands on  a different  footing.  Here the discrimination  complained  of arises  on  account  of orders passed  by  different  excise authorities  acting quasi judicially. Moreover it cannot  be said that there is no willingness on the part of the author- ities  to recover excise duty on similar  products  manufac- tured  by  other producers because  the  learned  Additional Solicitor  General, during the course of his arguments,  has indicated that proceedings would be initiated against  those manufacturers in the light of the decision of this Court  in this  case.  The decision in Vishnudas’s case  (supra)  has, therefore, no application to the present case.     For  the reasons aforesaid we find no substance in  this appeal  and  it is accordingly dismissed.There  will  be  no order as to costs. P.S.S.                               Appeal dismissed. 457