Bombay High Court
Ipca Laboratories Ltd And Anr vs Union Of India And Anr on 17 June, 2019
Author: Prakash D. Naik
Bench: A.A. Sayed, Prakash D. Naik
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wp-1123-15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1123 OF 2015
...
Ipca Laboratories Ltd And Anr. ...Petitioners
V/S
Union Of India And Anr. ...Respondents
...
Mr Navroz Seervai a/w Ms Gulnar Mistry a/w Mr Rihal Kazi,Mr Aniket
Katre i/b M & M Legal Ventures for the Petitioners.
Dr G R Sharma a/w Mr M S Bhardwaj for Respondents Nos.1 &
2/Union of India.
...
CORAM : A.A. SAYED &
PRAKASH D. NAIK, JJ.
DATED : 17 JUNE 2019
P.C.:
By the present Petition, the Petitioners are interalia
challenging (i) the Show Cause Notice dated 7 July 2014 issued to the Petitioner No.1, and (ii) the Demand Notices dated 9 December 2014, 21 January 2015 and 13 March 2015 requiring the Petitioner No.1 to deposit with the Respondent No.2 an amount of Rs.2,32,53,040/- being the amount of alleged overcharging alongwith interest with respect to the Petitioner No. 1's formulation HCQS-200 for the period December 2012 to April 2013.
2. The Respondent No.2-National Pharmaceutical Pricing Authority, Department of Pharmaceuticals, Ministry of Chemicals & Uday.P.Kambli 1/5 ::: Uploaded on - 03/07/2019 ::: Downloaded on - 14/07/2019 01:20:04 ::: 2/5 wp-1123-15.doc Fertilizers, Government of India by Price Fixation Notification dated 14 June 2013 fixed the ceiling price of HCQS Tablets 200 mg at Rs.5.64 per tablet (i.e. Rs.56.40 per strip of 10 tablets) under the powers conferred by the DPCO, 2013. The MRP of the said product earlier was Rs.68.50 for a strip of 10 tablets.
3. It is the case of the Petitioners that after coming into force of DPCO with effect from 15 May 2013, the Petitioners by their letter dated 11 June 2013 called upon authorized stockists and wholesalers to return all their products for the purpose of implementation of the revised price. The Petitioners also informed the Respondent No.2 that they had already implemented the new revised prices with respect to their various products including the formulation of HCQS tablets. According to the Petitioners that it called back and re-stickered 124560 out of 2321130 strips that were sold in the market between December 2012 and June 2013 and the sale and disposal of the balance strips was much prior to the coming into effect of the Price Fixation Notification dated 14 June 2013. It is averred in the Petition that it is possible that few strips of the said products may have remained to be returned to the Petitioner No. 1 and the Petitioner No. 1 cannot be foisted with such huge demand Uday.P.Kambli 2/5 ::: Uploaded on - 03/07/2019 ::: Downloaded on - 14/07/2019 01:20:04 ::: 3/5 wp-1123-15.doc for a few strips that may have been obtained by the Respondents. Learned Senior Counsel for the Petitioners submitted that the demand is made on the assumption that the strips have remained unsold prior to the Notification dated 14 June 2013 despite the fact that the Petitioners submitted a certificate of their Chartered Accountant confirming withdrawal of the said product for the purposes of revision of MRP on the strips of the said product.
4. In the Affidavit-in-Reply filed on behalf of the Respondents, it is contended that the Petitioners had violated the provisions of DPCO 2013 by charging the price of Rs.68.50 per strip of 10 tablets as against the ceiling price of Rs.56.40 per strip of 10 tablets to gain unjust enrichment at the cost of the consumer. The Notification dated 14 June 2013 obligates the manufacturer/marketing companies of such HCQS to comply with the maximum retail prices and all manufacturers are required to implement the ceiling price. It is pointed out that from the sample purchased from the market on 14 August 2013 it came to light that the Petitioners are selling the product at an excess price. It is contended that the Petitioners had re-stickered only 5% of the production of the total strips. It is pointed out that the Petitioners did not furnish the requisite breakup Uday.P.Kambli 3/5 ::: Uploaded on - 03/07/2019 ::: Downloaded on - 14/07/2019 01:20:04 ::: 4/5 wp-1123-15.doc data of the formulation produced prior to and after the date of Notification. It is submitted by the learned Counsel for the Respondents that on 7 July 2014, the Petitioners were issued a Show Cause Notice and were also afforded a personal hearing by the Respondent No. 2. The Respondent No.2, thereafter, issued a demand notice dated 5 December 2014 calling upon the Petitioners to deposit an amount of Rs.2,32,53,040/- being the overcharged amount alongwith interest calculated upto 20 December 2014.
5. In the Affidavit-in-Rejoinder filed on behalf of the Petitioners it is interalia stated that the breakup was as a matter of fact supplied by the Petitioners by their letters dated 24 March 2014, 26 March 2014 and 22 July 2014.
6. Having heard the learned Senior Counsel for the Petitioners and the learned Counsel for the Respondents, in our view, the matter requires consideration. Hence, Rule. Learned Counsel for the Respondents waives service.
7. In the facts and circumstances of the case, we direct that conditional upon the Petitioners depositing 50% of the sum of Uday.P.Kambli 4/5 ::: Uploaded on - 03/07/2019 ::: Downloaded on - 14/07/2019 01:20:04 ::: 5/5 wp-1123-15.doc Rs.1,89,34,433/- with the Respondent No.2 within a period of six weeks from today, the impugned Demand Notices dated 5 December 2014, 21 January 2015 and 13 March 2015 are stayed till the final disposal of the Petition.
8. Hearing of the Petition is expedited.
(PRAKASH D. NAIK,J.) (A.A.SAYED, J.) Uday.P.Kambli 5/5 ::: Uploaded on - 03/07/2019 ::: Downloaded on - 14/07/2019 01:20:04 :::