Delhi High Court - Orders
Asahi Intecc Co. Ltd vs Union Of India & Anr on 9 May, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~76
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5966/2023 & CM APPLs. 23456-57/2023
ASAHI INTECC CO. LTD. ..... Petitioner
Through: Mr. Jawahar Lal & Mr. Mohit
Sharma, Avds. (M: 7976355023)
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr.Ravi Prakash (CGSC) with
Mr.Farman Ali, Ms.Astu & Mr.Aman
Rewaria, Advs. (M: 9015697073)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 09.05.2023
1. This hearing has been done through hybrid mode. CM APPL.23456/2023 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of. W.P.(C) 5966/2023 & CM APPL.23457/2023 (stay of impugned order)
3. The present application prays for the stay of the impugned order bearing No. F. No. 20(8)/76114/0C/2021/DIV.VI/NPPA dated 21st April 2023 issued by the Respondent No.2- National Pharmaceuticals Pricing Authority ('NPPA').
4. The issue raised is in respect of a demand raised by the NPPA to the tune of Rs.6,82,42,267/-. The case of the Petitioner-M/s. Asahi Intecc Co. is that it sells medical devices including Catheters. The price of the Catheters charged by the Petitioner between 2019- till date is extracted herein under:
MRP for Sion Blue (Price in Rs.)
S. No. Product MRP by third- MRP of Petitioner
Name party importer
(Till July 2019)
07.08.2019 to 20.09.2020 to
19.09.2020 present day
1. Sion Blue & 9,500/- (From 8,000/- 9,500/-
Sion Blue J 2017)
MRP for Fubuki (Price in Rs.)
S. No. Product MRP by MRP of Petitioner
Name third-party
importer (Till
January
2020)
20.02.2020 to 20.09.2020 to
19.09.2020 present day
1. Fubuki 19,000/- 17,000/- 19,000/-
(Neurovascul (From 2018)
ar Guide
Catheter)
2. Fubuki 19,000/- 17,000/- 19,000/-
Dilator Kit (From 2018)
(Neurovascul
ar Guide
Catheter)
3. Fubuki 043 19,000/- 17,000/- 19,000/-
(Digital (From 2018)
Support
system)
5. The Petitioner submits, on the strength of the above tabulated prices, that for a short period of about a year, the Petitioner had given a discount for some of their products such as Catheters.
6. However, the NPPA vide notice dated 21st April 2023 has now invoked paragraph 20 of the Drug Price Control Order, 2013 (hereinafter, 'DPCO') to argue that the increase in the prices of the medical devices i.e., Catheters can now only be 10% over and above the discounted price, and not on the previous price. Further, it is argued that since the increase was above the 10%, the remaining amount constitutes an overcharge. Thus, demand to the tune of Rs. 6.8 crs has been raised by the NPPA.
7. On behalf of the Respondent, Mr. Ravi Prakash, ld. CGSC submits that he would like to file a counter affidavit to the present application as well as the petition, inasmuch as paragraph 20 of the DPCO does not permit the increase beyond 10%, irrespective of whether the price was original price or the discounted price.
8. Paragraph 20 of the DPCO is as follows:
"20. Monitoring the prices of non-scheduled formulations.-
(1) The Government shall monitor the maximum retail prices (MRP) of all the drugs, including the non-scheduled formulations and ensure that no manufacturer increases the maximum retail price of a drug more than ten percent of maximum retail price during preceding twelve months and where the increase is beyond ten percent of maximum retail price, it shall reduce the same to the level of ten percent of maximum retail price for next twelve months.
(2) The manufacturer shall be liable to deposit the overcharged amount along with interest thereon from the date of increase in price in addition to the penalty."
9. Issue notice. Notice is accepted by Mr. Ravi Prakash, ld. CGSC.
10. Let the counter affidavit be filed within 6 weeks. Rejoinder thereto be filed within 4 weeks thereafter.
11. Ld. counsel for the Respondent submits that no interim order can be passed without directing the Petitioner to deposit a substantial amount of the demand deposit in this matter.
12. The Court has considered the matter.
13. A perusal of the present petition would show that the NPPA does not dispute the fact that previously i.e., prior to the discounted price being offered, the prices were much higher. Thus, if this issue is not in dispute, a perusal of the above table would show that there is, in fact, no rise in the prices at all over last almost 4 to 5 years. Thus, prima facie, the matter requires consideration, inasmuch as if the prices are not being changed since July, 2019, it would mean that the Petitioner has not even availed of minimum 10% increase as per the provisions of DPCO, which it could have availed of for the last 4 years.
14. Even going by the discounted price, which has been offered as per the above chart, if the 10% price increase is taken into consideration, prima facie, it is for a maximum one year that the 10% limit that would be breached and not beyond.
15. Therefore, subject to deposit of Rs.2 crores with the NPPA within eight weeks, no coercive measures shall be taken against the Petitioner. CM APPL.23457/2023 for stay is disposed of accordingly.
16. List before the Registrar on 20th July, 2023
17. List before the Court on 9th November, 2023.
PRATHIBA M. SINGH, J.
MAY 9, 2023/dk/dn