1. The Union of India, which was the defendant, appeals from a judgment of Sadasivam, J., for the plaintiff a pharmaceutical company, which claimed a refund of Rupees 20,854-83 being, according to its case, the excess amount of duty illegally collected by the Union in respect of five consignments of Tetracycline Hydrochloride injections imported under the brand name 'Hostacycline' manufactured by M/s. Parbworks Hoschat A. G. The Assistant Collector of Customs assessed the consignments to duty under Item 28-A of the Indian Customs Tariff. He took the view that inasmuch as the imported drug contained Ascorbic acid, which should be regarded as therapeutic ingredient within the meaning of Entry 28(27) it did not fall within the purview of that entry and therefore the charge should be made under Entry 28-A. The matter came before this court in the form of a writ petition filed by the respondent, but one of us sitting on the writ side considered that inasmuch as evidence would be necessary, the proper remedy would be by way of suit. That is how the suit out of which the appeal arises came to be instituted. The learned Judge at the trial took the view that though Tetracycline Hydrochloride of the respondent did contain Ascorbic acid of a certain percentage, it did not, in the light of the evidence of Dr. Sanjivi, have any therapeutic effect, and therefore, the proper classification of the drug would be under Entry 28(27) and not Entry 28-A. On that view, he decreed the suit. We may mention in passing that Sadasivam, J. also found that Ambramycin (Letetit), Achromysin (Lederle) Steclain (Squibb) and Tetradin (Pfizer) had been classified by the Bombay Customs as drugs falling within the purview of Entry 28(27) and that the classification of the respondent's drug Tetracycline Hydrochloride injections as falling within Entry 28-A was discriminatory.
2. Entry 28-A is Patent of proprietary medicines as defined in clause (d) of Section 3 of the Drugs Act, 1940 (XXIII of 1940) not containing spirit and not otherwise specified. 'The nature of duty shown against this item is 'preferential revenue' and the standard rate of duty is 50 per cent ad valorem. Entry 28(27) relates to antibiotics such as streptomycine, gramicidein, tyrocidin and thryothricin and preparations, which contain only one antibiotic, and are free from other therapeutic ingredients, but not including penicillin in bulk and penicillin and its products specified in Item Nos. 28(26) and 28(26-A). Patent and proprietary medicine, as defined in Section 3(d) of the Drugs Act 1940, means 'a drug which is a remedy or prescription prepared for internal or external use of human beings or animals, and which is not for the time being recognised by the permanent Commission on Biological Standardisation of the World Health Organisation or in the latest edition of the British Pharmacopoeia or the British Pharmaceutical Codes or any other Pharmacopeia authorised in this behalf by the Central Government after consultation with the Board.' Tetracycline Hydrochloride injection both intravenous and istramuscular is an antibiotic, and this is not in dispute. As such, it will normally fall within Entry 28(27). The only question therefore is whether inasmuch as the respondent's Tetracycline Hydrochloride contained a percentage of Ascorbic acid, that fact, by itself, will take it out of Entry 28(27). The learned counsel for the appellant insists that Ascorbic acid being a therapeutic ingredient which is part of the respondent's drug, it is necessarily excluded from Entry 28(27). But he is not sure whether even If it were so, it would automatically come within Entry 28-A. No investigation on that matter seems to have been made till now and it is not necessary, on the view we take to go into that.
3. Dr. Sanjivi, who gave evidence for the respondent at the trial, was definitely of the view that Tetracycline Hydrochloride, when administered to a patient, has no therapeutic effect on him of Ascorbic acid. That acid is administered for Vitamin-C deficiency, but surely Tetracycline Hydrochloride cannot be administered for that purpose merely because it contained a percentage of Ascorbic acid. In Entry 28(27) when mention is made of therapeutic ingredients, it has reference to its effect rather than the factum of its user as a component of an antibiotic. Dr. Sanjivi, in answer to a question whether Ascorbic acid was a therapeutic agent or a therapeutic ingredient, stated that in different circumstances it played different roles, and as a pure chemical, it may be an ingredient and under certain conditions it may also be a therapeutic agent. When it is merely an ingredient, it cannot be a therapeutic agent. He illustrated his meaning by stating that no doctor will administer Tetracycline Hydrochloride for Vitamin C deficiency. We are of the view that Sadasivam, J. was right in holding that the respondent's drug did fall within the purview of Entry 28(27). As a matter of fact, as already indicated. Ambramycine, Achromycin. Steclein. Tetracycline do contain more or less a percentage of Ascorbic acid. It has been added as an ingredient of Tetracycline Hydrochloride, as the evidence discloses, for the purposes of giving a buffer effect, that it to say, to stabilise it when administered by injection. It has not been used as an ingredient for the purpose of therapeutic effect. When we find the expression 'therapeutic ingredient' in Entry 28(27), we must have regard to the meaning of each one of those words in the phraseology. It must be an ingredient, at the same time it must have therapeutic effect. In this case, it is clearly demonstrated by the evidence on record that Ascorbic acid used in the respondent's Tetracycline Hydrochloride is not intended to and does not have any therapeutic effect, but has been added for it buffer effect. We, therefore, uphold the decree of Sadasivam, J.
4. It is contended for the appellant that the suit itself would not lie and the proper remedy is only in proceedings under Article 226 of the Constitution. In support, learned counsel relies on Union of India v. A V. Narasimhalu, 1970 2 MLJ 34. But then a different view seems to have been expressed by the Supreme Court in Union of India v. Tarachand Gupta, : 1983(13)ELT1456(SC) , and we are inclined to think that where a levy on a citizen is made, which is illegal, a suit may well lie for recovery of the amount, for no levy of that type can be levied, except by authority of the law. In any case, the respondent by way of abundant caution, has also filed writ petitions. It is, therefore, not necessary to decide the question whether a suit would lie at all. All that is necessary to say is that the respondent is entitled to the refund which it claimed.
5. The appeal is dismissed with costs. Formally the writ petitions are allowed, but with no costs.
6. Appeal dismissed.