ivil Appeal No 4457 of 1989
Appeal under Section 35 Lb of the Central Excise and Salt Act 1944 from the Order No 28589 C dated the 29th June 1989 of the Customs Excise and Gold Control Appel late Tribunal New Delhi in Appeal No E248987 C KK Venugopal D Shroff Ravinder Narain Raj Darak PK Ram and DN 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 SC 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 684 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 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 
 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 2c 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 section 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 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 section 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 section 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 684 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 personal hearing to the representation of the appellant the Assistant Collector passed an order dated November 1721 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 30039
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 KK 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 feedegg 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 WW and Neftin 200 contains Furazo lidone 20 WW
The submission of the learned Additional 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 151984 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 Neftin50 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 vs Union of India and Others  where the question was whether VP 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 VP 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 vs Krishna Carbon Paper Co  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 172 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 WW and Neftin 200 contains Furazolidone 20 W The Assist ant Collector in his order dated 1721 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 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 00055 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 0011 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 vs State of Andhra Pradesh  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 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 US Supreme Court in Cumberland Coal Co vs Board of Revision 76 Law Edn 147 and Iowa Des Moines National Bank vs ER Bennett 76 Law Edn 265 as well as the decision of this Court in Vishnudas Hindumal Etc
vs State of Madhya Pradesh and Ors
  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 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 vs The Improvement Trust Amritsar  Another AIR 1972 SC 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 vs 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 Special Secretary about all the valid permits in force at the relevant date After referring to the decision of this Court in Ramnath Verma vs State of Rajasthan  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
PSS Appeal dismissed


Summary:
The appellant was convicted under section 302 IPC for murder ing his wife
The prosecution case was that on the fateful day the deceased had taken meals to the appellant while he was working in the field near his tubewell
Her dead body was recovered two days later in a nearby drain
He made an extra judicial confession the same day at the panchayat in the presence of PWs 3 4 and 5 to the effect that he had killed his wife in the wheat field and threw the dead body in the drain at night after removing her ornaments
The FIR was lodged thereafter in the presence of the appellant and the fact of his statement was recorded therein
The weapon of offence the kassi and the ornaments were recovered from the hut near the tubewell at his instance
PW 3 narrated the events that preceded the occurrence
PWs 4 and 5 fully corroborated the evidence of PW 3 in that the appellant had confessed his guilt in their presence
The evidence was accepted by the trial court
The High Court sustained the conviction on the view that various circumstances conclusively proved the guilt of the appellant beyond reasonable doubt
In the appeal it was contended for the appellant that the extrajudicial confession even if true was not voluntary but induced on the promise that he would he pardoned and the same having been retracted could not form the basis for a conviction in the absence of any material corroboration
Dismissing the appeal HELD 1
The High Court was right in its conclusion and there was no ground for interference
21 An extra judicial confession if voluntary can be relied upon by the court alongwith other evidence in con victing the accused
The 493 value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made
Though the court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invaria ble rule that the court should not accept the evidence if not the actual words but the substance were given
It is for the court having regard to the credibility of the witness to accept the evidence or not
When the court believes the witness before whom the confession is made and it is satis fied that the confession was voluntary conviction can be rounded on such evidence
22 In the instant case the fact that the appellant made the confession is proved by cogent evidence
He and his father were brought before the panchayat held in the presence of PWs 3 4 and 5
He was questioned and was asked to speak the truth
This prompting by the panchayat does not amount to inducement or threat
The testimony of PW 4 a lambardar and PW 5 the Sarpanch being responsible persons could not be doubted in the absence of any material to show that they had been motivated to falsely implicate the appel lant
The circumstances under which the statement was made leaves no room for doubt that the confession was voluntary
23 The discovery of the dead body from the drain through the wheat field presence of blood in the field recovery of gold ornaments from the roof of the hut and blood stained kassi from the hut near the tubewell were material circumstances providing connecting links in the chain of circumstantial evidence
The appellant when exam ined did not offer any explanation except to deny his in volvement
PW 3 had testified to the fact that the deceased had complained about the illtreatment by her husband
In the light of such evidence it is preposterous to maintain that she may have been assaulted by some unidentified assailant somewhere in the fields and the appellant had been falsely implicated in the offence
The circumstances thus proved were conclusive of the guilt of the appellant and incapable of being explained on any other reasonable hypothesis
Conviction has therefore to be maintained