ALS

𝐀𝐚𝐝𝐫𝐢𝐤𝐚𝐚 𝐋𝐞𝐠𝐚𝐥 𝐒𝐞𝐫𝐯𝐢𝐜𝐞𝐬 (𝐀𝐋𝐒)

Tag: #Classification

  • Delhi High Court Sets Aside Rejection of “ELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

    Delhi High Court Sets Aside Rejection of “ELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 17.09.2026

    Delhi High Court Sets Aside Rejection of “ELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Delhi High Court has set aside the Trade Marks Registry’s refusal to register the pharmaceutical word mark “ELMENTIN”, holding that it could not be regarded as phonetically similar to the earlier registered mark “ELEMENTAL” merely because both marks related to medicinal and pharmaceutical products.

    In Elyon Pharmaceuticals Pvt. Ltd. v. The Registrar of Trademarks, C.A.(COMM.IPD-TM) 153/2021, Justice C. Hari Shankar held that ELMENTIN and ELEMENTAL have distinctly different sounds, syllabic structures and meanings. The Court also observed that differences in the pharmaceutical composition of competing products may constitute an additional mitigating factor while assessing likelihood of confusion.

    Trademark Registry Had Rejected “ELMENTIN”

    • Elyon Pharmaceuticals Pvt. Ltd. had filed Application No. 2668081 seeking registration of the word mark “ELMENTIN” for a pharmaceutical composition containing Amoxycillin and Clavulanic Acid.
    • The Examiner of Trade Marks rejected the application by an order dated August 27, 2018, invoking Section 11(1)(b) of the Trade Marks Act, 1999.
    • The objection was based on an earlier registered trademark, “ELEMENTAL”, registered in favour of Juggat Pharma Pvt. Ltd. for medicinal and pharmaceutical preparations in Class 5. The Registry considered ELMENTIN deceptively similar to ELEMENTAL and found a potential likelihood of confusion.
    • Elyon Pharmaceuticals challenged the rejection before the Delhi High Court.

    Elyon Pharmaceuticals: ELMENTIN and ELEMENTAL Sound Different

    • Counsel for Elyon Pharmaceuticals argued that the two marks could not properly be regarded as phonetically similar and, therefore, the basis for refusing registration was unsustainable.
    • The Registrar defended the decision, arguing that the phonetic difference between the two expressions was minimal and that ELEMENTAL already stood registered for medicinal and pharmaceutical preparations in the same class.
    • After examining the rival contentions, however, the High Court disagreed with the Registry.

    Delhi HC: The Two Words Have “Distinctly Different Sounds”

    • Justice Hari Shankar observed that, when properly articulated, ELMENTIN and ELEMENTAL have distinctly different sounds.
    • The Court specifically noted that even the concluding syllables of the two expressions were different.
    • This distinction was important because trademark similarity cannot be determined merely by identifying common letters or portions of competing marks. The marks must be considered from the perspective of their overall visual and phonetic impression and the circumstances in which consumers encounter them.

    Court Applies the Classic “Pianotist” Test

    • The Delhi High Court relied upon the well-established test laid down in In re Pianotist Co.’s Application, [1906] 23 RPC 774.
    • Under that approach, competing marks must be assessed by considering their look and sound, the goods to which they are applied, the nature of likely consumers, the surrounding circumstances and what is likely to happen if both marks are used normally in the marketplace.
    • The Court noted that the Pianotist test had received approval from the Supreme Court in Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449, and Khoday Distilleries v. Scotch Whisky Association, (2008) 10 SCC 723.

    “ELMENTIN” Is a Coined Word; “ELEMENTAL” Is an Ordinary English Expression

    • Applying that test, the Court found substantial differences between the marks.
    • “ELEMENTAL” was described as a word of common English usage—an adjective associated with “element” and synonymous with “fundamental.”
    • “ELMENTIN,” on the other hand, was a coined expression having no etymological meaning.
    • The Court also compared the syllabic structures. ELMENTIN contains three syllables, while ELEMENTAL contains four. Their concluding syllables were also different.
    • These distinctions led the Court to conclude that it was difficult to sustain the Examiner’s finding that use of the two marks for pharmaceutical preparations was likely to confuse the public.

    Coined and Arbitrary Marks Entitled to Greater Protection

    • The Court further observed that ELMENTIN, being a meaningless, arbitrary and coined word, was entitled to additional trademark protection.
    • For this proposition, the judgment referred to Kirorimal Kashiram Marketing & Agencies Ltd. v. Shree Sita Chawal Udyog Mill, (2010) 44 PTC 293 (DB), and South India Beverages Pvt. Ltd. v. General Mills Marketing Inc., (2015) 61 PTC 231 (DB).
    • The ruling therefore reinforces the significance of invented or arbitrary terminology when examining distinctiveness and competing trademark claims.

    Different Pharmaceutical Compositions Can Reduce Likelihood of Confusion

    • One of the most significant observations in the judgment concerns the composition of pharmaceutical products.
    • The High Court noted that the record did not establish whether the pharmaceutical composition sold under the earlier ELEMENTAL mark was the same as the composition for which Elyon Pharmaceuticals sought registration of ELMENTIN.
    • Justice Hari Shankar observed that if the two pharmaceutical compositions were different, that would constitute an additional mitigating factor against the likelihood of confusion among the public.
    • The observation is important because it indicates that the likelihood-of-confusion inquiry in pharmaceutical trademarks is not necessarily confined to comparing the words in isolation. The nature and composition of the underlying products may also be relevant to the overall factual assessment.

    Section 11(1)(b) Rejection Set Aside

    • Section 11(1)(b) of the Trade Marks Act deals with situations where similarity with an earlier trademark, coupled with identity or similarity of the relevant goods or services, creates a likelihood of confusion on the part of the public, including likelihood of association with the earlier mark.
    • After applying the phonetic, visual and contextual comparison, the High Court held that the Examiner’s conclusion that ELMENTIN was disentitled to registration because of the pre-existing ELEMENTAL mark could not be sustained.
    • The rejection order was accordingly set aside.

    Application Remanded to Trade Marks Registry for Fresh Consideration

    • Importantly, the Delhi High Court did not itself finally order registration of ELMENTIN.
    • Instead, Application No. 2668081 was remitted to the concerned officer of the Trade Marks Registry for de novo consideration.
    • The Registry was directed to consider the application on its own merits, but it was specifically restrained from rejecting the application on the grounds contained in Sections 11(1)(a) or 11(1)(b) of the Trade Marks Act.
    • The appeal was accordingly allowed to that extent, with no order as to costs.

    Cases Referred to by the Delhi High Court

    The judgment expressly refers to four authorities while explaining the applicable principles of trademark comparison:

    1. In re Pianotist Co.’s Application, [1906] 23 RPC 774 — the classic test requiring marks to be compared by look, sound, goods, consumers and surrounding circumstances.
    2. Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449 — Supreme Court approval of the Pianotist approach.
    3. Khoday Distilleries v. Scotch Whisky Association, (2008) 10 SCC 723 — also cited as approving the Pianotist standard.
    4. Kirorimal Kashiram Marketing & Agencies Ltd. v. Shree Sita Chawal Udyog Mill, (2010) 44 PTC 293 (DB), and South India Beverages Pvt. Ltd. v. General Mills Marketing Inc., (2015) 61 PTC 231 (DB) — relied upon concerning protection available to arbitrary and coined marks.

    Why the Judgment Matters for Pharmaceutical Trademarks

    • The ruling provides a useful framework for examination of allegedly similar pharmaceutical marks. It indicates that similarity should not be determined simply because two marks share some letters or are registered in the same class.
    • Instead, the decision requires consideration of the overall appearance, pronunciation, syllabic structure, meaning, nature of the products, relevant consumers and surrounding commercial circumstances.
    • It is equally important that the Court did not treat different pharmaceutical compositions as automatically eliminating confusion. Rather, it described such difference as an additional mitigating factor, meaning it forms part of the broader likelihood-of-confusion assessment.

    Key Takeaway

    The Delhi High Court’s ruling establishes that ELMENTIN could not be refused merely on the ground that it was allegedly phonetically similar to ELEMENTAL.

    The Court found meaningful differences in sound, syllables, meaning and overall impression and set aside the Section 11(1)(b) rejection. At the same time, the judgment should not be read as a final grant of trademark registration.

    The application was sent back to the Registry for fresh consideration on its own merits, subject to the Court’s direction that it could not again be rejected under Sections 11(1)(a) or 11(1)(b).

    Connected Matter

    Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Delhi High Court

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  • CESTAT Mumbai: Vitamin and Enzyme Premixes for Animal Feed Classifiable Under CTH 2309

    CESTAT Mumbai: Vitamin and Enzyme Premixes for Animal Feed Classifiable Under CTH 2309

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 17.09.2026

    CESTAT Mumbai: Vitamin and Enzyme Premixes for Animal Feed Classifiable Under CTH 2309

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Mumbai has ruled in favour of DSM Nutritional Products India Pvt. Ltd. in a long-running customs classification dispute, holding that imported vitamin premixes and enzyme preparations meant for use in animal feeding are classifiable under Customs Tariff Heading (CTH) 2309, and not under CTH 2936 or CTH 3507 as contended by Customs.

    A Division Bench comprising S.K. Mohanty, Member (Judicial), and M.M. Parthiban, Member (Technical) set aside the May 8, 2024 order of the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, and allowed Customs Appeal Nos. 87088 to 87126 of 2024 with consequential relief. The final order was pronounced on September 11, 2026.

    The ruling is significant for the tariff classification of feed-grade vitamin and enzyme premixes, particularly where such products contain active ingredients along with carriers, fillers, stabilisers, anti-caking agents and other substances specifically designed for animal-feed applications.

    DSM Imported Vitamin and Enzyme Premixes for Animal Feeding

    • DSM Nutritional Products India imported preparations containing vitamins and enzymes from its related overseas supplier, DSM Nutrients Asia Pacific Private Limited, Singapore.
    • The imports included a range of Rovimix vitamin premixes and Ronozyme enzyme preparations, which were intended for use in preparation of animal feed.
    • DSM classified these products under CTH 2309, covering preparations of a kind used in animal feeding.
    • Because the overseas supplier was a related party, the assessments had remained provisional since October 2010. The Special Valuation Branch subsequently concluded in 2016 that the relationship had not influenced the declared import price.

    Customs Sought Classification Under Chapters 29 and 35

    • The dispute arose after the Central Intelligence Unit and Special Investigation & Intelligence Branch examined the classification adopted by DSM.
    • Customs took the position that the vitamin and vitamin premixes should be classified under CTH 2936, while enzyme preparations should fall under CTH 3507, instead of Heading 2309.
    • Consequently, provisional assessments covering imports from October 2010 to December 2020 remained pending.
    • DSM repeatedly sought finalisation of the assessments and refund of pre-deposits/Extra Duty Deposits. When the matter remained unresolved, it approached the Bombay High Court in Writ Petition No. 3323 of 2021. The High Court directed Customs to finalise the provisional assessments.

    Customs Finalised Assessments Against DSM

    • The Assistant Commissioner of Customs eventually passed an Order-in-Original dated September 22, 2023 rejecting DSM’s classification under CTH 2309.
    • The authority classified the vitamin products under CTH 2936 and enzyme products under CTH 3507, finalised the assessments under Section 18(2) of the Customs Act, 1962, demanded differential customs duty with interest and ordered appropriation against deposits already made by DSM.
    • Interestingly, the Tribunal recorded that the exact amount of duty demanded, confirmed or appropriated was not mentioned in the operative portion of the original order.
    • The Commissioner (Appeals) subsequently upheld the classification adopted by the original authority and dismissed DSM’s appeals, leading to the proceedings before CESTAT.

    DSM: Products Are Exclusively Intended for Animal Feed

    • DSM argued that the disputed vitamin and enzyme premixes were exclusively intended for animal feeding and were not used for human consumption.
    • The preparations contained vitamins or enzymes as active ingredients together with carriers, fillers, anti-caking agents, stabilisers and other additives selected keeping their animal-feed end use in view.
    • DSM further used these imported premixes to manufacture composite premixes containing vitamins, minerals, enzymes and other ingredients, which were also intended exclusively for animal feeding.
    • DSM therefore relied heavily on the Larger Bench decision in Tetragon Chemie (P) Ltd. v. Collector of Central Excise, Bangalore, 2001 (138) E.L.T. 414 (Tri.-LB), which had held that premixes of the relevant nature used in animal feeding fall under the animal-feed heading. That ruling was upheld by the Supreme Court when the Revenue’s appeal was dismissed.

    Earlier Venkateshwara B.V. Bio Corp Ruling Became Crucial

    • A particularly important aspect of DSM’s case was the Tribunal’s earlier ruling in Venkateshwara B.V. Bio Corp Private Limited v. Commissioner of Customs (NS-I), (2025) 26 Centax 283 (Tri.-Bom.).
    • DSM argued that the classification dispute in Venkateshwara was virtually identical, arose from the same investigation and even involved the same overseas supplier, DSM Nutritional Products Asia Pacific Pte. Ltd., Singapore.
    • In that case, CESTAT had classified the imported products under CTI 2309 9090. Customs challenged that ruling before the Supreme Court, but its appeal was dismissed on February 7, 2025.
    • The Supreme Court order reproduced on page 10 of the CESTAT judgment records that it found no good ground to interfere with the Tribunal’s decision, particularly in light of Circular No. 188/22/96-CX dated March 26, 1996, and dismissed the Revenue’s appeal.

    Core Issue Before CESTAT: CTH 2309 vs 2936/3507

    • The Tribunal framed the principal issue as whether the imported vitamin premixes and enzyme preparations for feed/animal grade were classifiable under CTI 2309 9020 as claimed by DSM, or whether vitamins should be classified under CTH 2936 and enzymes under CTH 3507 as determined by Customs.
    • Customs had reasoned that vitamins and enzymes had specific tariff headings and that a specific classification should prevail over what it regarded as the more general or residual animal-feed heading.
    • The Commissioner (Appeals) had relied substantially upon Rule 3(a) of the General Rules for Interpretation and the ingredients of the imported products in concluding that vitamins belonged under 2936 and enzyme preparations under 3507.

    CESTAT Finds Customs Order Legally Deficient

    • The Tribunal was not persuaded by that approach.
    • It observed that neither the Commissioner (Appeals) nor the original authority had undertaken a sufficiently detailed examination of the scope of the competing tariff headings and the relevant HSN Explanatory Notes.
    • According to CESTAT, a comprehensive classification exercise under the Customs Tariff Act, 1975 required proper examination of the competing entries rather than merely proceeding on the premise that Chapters 29 and 35 contained more specific descriptions.
    • The Tribunal therefore found, even at the preliminary level of its analysis, that the impugned appellate order was not sustainable.

    Larger Bench in Tetragon Chemie Supports Heading 2309

    • CESTAT then relied on the Larger Bench ruling in Tetragon Chemie.
    • That decision had considered the specific question whether preparations used in animal feeding consisting of one or more vitamins mixed with diluents should be classified under the vitamin heading or under the animal-feed heading.
    • The Larger Bench concluded that premixes containing mineral substances, vitamins or provitamins, trace elements, appetisers, soya flour or meal, yeast and similar ingredients were covered by Heading 23.09 of the HSN, corresponding to the relevant animal-feed heading in the Central Excise Tariff.
    • The Larger Bench ultimately answered the classification issue in favour of the assessees.
    • CESTAT noted that this decision was upheld by the Supreme Court in 2001 (132) E.L.T. 525 (S.C.).

    Indian Trading Bureau Decision Also Favoured Animal-Feed Classification

    • The Mumbai Bench further referred to Indian Trading Bureau Private Limited v. Commissioner of Customs (Port), Kolkata, 2024 (2) TMI 1030 – CESTAT Kolkata.
    • In that case, vitamins and enzymes used as animal-feed additives were classified under CTH 2309 rather than the competing tariff heading asserted by Revenue.
    • The decision emphasised the product literature showing that the goods were part of animal feed and were not fit for human consumption.
    • The Revenue’s appeal against that decision was also dismissed by the Supreme Court.

    CESTAT: DSM’s Case Identical to Venkateshwara Classification Dispute

    • The Tribunal found the classification dispute in DSM’s appeals to be identical to the issue already considered in Venkateshwara B.V. Bio Corp.
    • It noted that the overseas supplier in the present case was also one of the suppliers involved in that earlier dispute.
    • The Venkateshwara decision had examined the Customs Tariff Act, General Rules for Interpretation, competing tariff headings 2309 and 2936, HSN Explanatory Notes and CBEC Circular No. 188/2/96-CX dated March 26, 1996.
    • That decision had concluded that the disputed goods were classifiable under CTH 2309 and not CTH 2936, and the Supreme Court subsequently declined to interfere with the Tribunal’s decision.

    Vitamin and Enzyme Feed Preparations Classifiable Under CTH 2309

    • On the basis of these authorities and its own analysis, the Mumbai Bench concluded that DSM’s imported goods were properly classifiable under CTH 2309 of the First Schedule to the Customs Tariff Act, 1975.
    • The Tribunal expressly held that the May 8, 2024 appellate order sustaining classification under CTH 2936 and CTH 3507 did not withstand legal scrutiny and was legally unsustainable.
    • This finding resolved the substantive classification dispute in DSM’s favour.

    DSM Nutritional Products Wins 39 Customs Appeals

    • CESTAT accordingly set aside the impugned Order-in-Appeal and allowed DSM Nutritional Products India’s appeals, together with consequential relief, if any, in accordance with law.
    • The ruling therefore represents a substantive victory for DSM on tariff classification: its animal-feed vitamin and enzyme preparations were held classifiable under Heading 2309, rather than being split between the vitamin and enzyme headings in Chapters 29 and 35.

    Key Legal Takeaway

    The decision reinforces an important classification principle for feed-grade preparations: the presence of vitamins or enzymes as active ingredients does not, by itself, necessarily require classification of the finished preparation under the standalone vitamin or enzyme headings.

    The nature of the preparation, its composition, HSN guidance, relevant tariff notes, established judicial precedent and its exclusive design and use in animal feeding must all be considered.

    The ruling is particularly important because CESTAT found the dispute materially covered by previous decisions—including Tetragon Chemie and Venkateshwara B.V. Bio Corp—whose outcomes had survived Revenue challenges before the Supreme Court.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: CESTAT Mumbai

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  • Supreme Court Acquits Two in NDPS Case Over Broken Chain of Custody: Says FSL Report Cannot Survive Serious Gaps in Sample Integrity

    Supreme Court Acquits Two in NDPS Case Over Broken Chain of Custody: Says FSL Report Cannot Survive Serious Gaps in Sample Integrity

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 17.09.2026

    Supreme Court Acquits Two in NDPS Case Over Broken Chain of Custody: Says FSL Report Cannot Survive Serious Gaps in Sample Integrity

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Supreme Court has acquitted two persons convicted in a narcotics case after finding serious deficiencies in the prosecution’s evidence concerning the identification, sealing, safekeeping and movement of samples allegedly drawn from the seized contraband.

    In Abdul Rajik v. State of M.P. along with Govind v. State of M.P., 2026 INSC 1001, a Bench of Justice Sandeep Mehta and Justice Manmohan held that the link evidence had been completely breached, undermining the sanctity and integrity of the samples. Once the Forensic Science Laboratory (FSL) report was excluded, there was no legally admissible evidence establishing that the seized substance was charas.

    Background of the NDPS Case

    • The prosecution alleged that on November 29, 2004, police in Jabalpur received information that two persons were carrying charas in bags. A raiding team intercepted Abdul Rajik and Govind at Bandariya Tiraha.
    • According to the prosecution, 1 kilogram of suspected charas was recovered from Abdul Rajik’s bag and 800 grams from Govind’s bag. Samples were drawn and the accused were arrested. The FSL subsequently reported that the samples were charas.
    • The Special NDPS Court convicted both accused. Abdul Rajik was sentenced to 10 years’ rigorous imprisonment with a fine of ₹1 lakh, while Govind was sentenced to eight years’ rigorous imprisonment with a fine of ₹80,000. The Madhya Pradesh High Court dismissed their appeals in November 2010 and affirmed the convictions.
    • The matter ultimately reached the Supreme Court.

    Sections 42 and 50 Not Applicable to Search of Bags in Public Place

    • The accused argued, among other things, that the mandatory requirements of Sections 42, 50 and 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 had not been complied with.
    • The Supreme Court, however, did not accept the challenge based on Sections 42 and 50.
    • It observed that the alleged recovery was from bags being carried by the accused when they were apprehended in an open public place. Consequently, the Court held that neither Section 42 nor Section 50 applied to the search and seizure in the circumstances of the case.
    • The acquittal instead turned principally on the failure to establish reliable link evidence and chain of custody, considered alongside total non-compliance with Section 52A.

    Supreme Court Finds Serious Problems With Identification of Samples

    • The Court closely examined the evidence of the seizure officer regarding the manner in which representative samples were drawn and sealed.
    • It found that the officer did not state that the sample packets themselves had been sealed by him or that identifiable markings — such as signatures or thumb impressions of the accused, panch witnesses or seizure officer — had been placed on those packets.
    • The sample packets were also not separately produced and exhibited when the muddamal articles were produced before the trial court.
    • The Court further examined the sample panchnamas and found no indication that the packets had been secured with signatures or identifiable chits enabling the samples subsequently tested by the FSL to be correlated with the contraband allegedly recovered from each accused. Even the FSL report did not refer to signatures or thumb impressions on the sample packets.

    Missing Link Between Maalkhana and FSL

    • Another major deficiency concerned the prosecution’s failure to establish the movement and safe custody of the samples.
    • Although the maalkhana register recorded the deposit of samples on November 29, 2004, the Supreme Court noted that there was no corresponding entry recording their exit from the police station for transportation to the FSL.
    • The prosecution also failed to prove documents such as the police station forwarding letter and road certificates that could establish the link between seizure, storage and delivery to the laboratory.
    • The Court stressed that evidence regarding safe custody is crucial because the prosecution must demonstrate that the very samples drawn from the seized substance reached the forensic laboratory without substitution, interference or unexplained gaps.

    Unexplained Five-Day Gap Further Breaks Chain of Custody

    • The Court identified another material discrepancy.
    • The forwarding letter from the Office of the Superintendent of Police was dated December 1, 2004, whereas the FSL report recorded that the samples were received through Constable Ramkrishna on December 6, 2004.
    • The prosecution provided no explanation as to where the samples remained and in whose custody they were kept during this five-day period. The carrier constable was also not examined.
    • The Supreme Court described this unexplained five-day gap as a grave discrepancy that completely breached the link in the chain of custody.

    Chain of Custody Essential Before FSL Report Can Be Relied Upon

    • The Supreme Court laid down an important evidentiary principle for NDPS prosecutions: the prosecution must establish through proper link evidence that samples extracted from the alleged contraband were properly sealed and remained in a safe and secure condition from seizure until receipt by the FSL.
    • For an FSL report to be relied upon, the prosecution must establish through credible oral and documentary evidence a complete chain of custody preserving the integrity and sanctity of the samples.
    • This assumes particular significance in NDPS prosecutions because the chemical analysis ordinarily provides the scientific foundation for establishing whether the recovered material was in fact a prohibited narcotic drug or psychotropic substance.

    Total Non-Compliance With Section 52A

    • The Supreme Court also considered compliance with Section 52A of the NDPS Act, which provides safeguards relating to inventory, photographs and representative sampling of seized narcotic substances.
    • The Court clarified that mere non-compliance with Section 52A or the applicable Standing Orders/Rules does not automatically vitiate every trial or result in acquittal. The relevant question includes whether and to what extent the non-compliance caused prejudice to the accused.
    • However, the Court distinguished minor procedural lapses from complete non-compliance. It found that in the present case no effort whatsoever was made to undertake the Section 52A procedure for drawing representative samples in the presence of a Magistrate, amounting to total non-compliance.

    Supreme Court Relies on Earlier NDPS Precedents

    • The Court referred to Narcotics Control Bureau v. Kashif, (2024) 11 SCC 372, and Bharat Aambale v. State of Chhattisgarh, (2025) 8 SCC 452, while explaining that Section 52A non-compliance does not by itself automatically lead to acquittal and that prejudice and evidentiary consequences must be examined.
    • It also relied upon Nadeem Ahamed v. State of West Bengal, 2025 SCC OnLine SC 1779, where failure to draw representative samples before a Magistrate and absence of a certified inventory were held to undermine the integrity of the seizure and sampling process.
    • The Court further referred to State of Rajasthan v. Tara Singh, (2011) 11 SCC 559, which emphasised the significance of accounting for the custody of seized samples between dispatch and receipt at the laboratory, particularly given the stringent penalties under the NDPS Act.

    FSL Report Discarded

    • Applying these principles, the Supreme Court concluded that the link evidence had been totally breached, resulting in the collapse of the sanctity and integrity of the samples.
    • Consequently, the FSL report could no longer safely be relied upon and had to be discarded.
    • Once the FSL report was excluded, there was no other legally admissible evidence proving that the substance allegedly recovered from Abdul Rajik and Govind was charas within Section 2(iii)(a) of the NDPS Act, an essential foundational fact for attracting penal consequences under Section 20.

    Burning Suspected Substance Is Not Scientific Proof of Charas

    • The Supreme Court also rejected the seizure officer’s assertion that the suspected substance had been tested by burning a portion of it and could therefore be identified as charas.
    • The Court found no scientific material demonstrating that a substance could reliably be identified as charas merely by burning it. Accordingly, such testimony could not substitute for reliable scientific evidence establishing the identity of the alleged contraband.

    Supreme Court Acquits Both Accused

    • The Court ultimately held that the prosecution had failed to prove that the substance recovered from the accused was charas.
    • It therefore found the convictions recorded by the Special NDPS Court and affirmed by the Madhya Pradesh High Court unsustainable in law and extended the benefit of doubt to both appellants.
    • The Supreme Court set aside the conviction and sentence and acquitted Abdul Rajik and Govind of all charges. Since both were already on bail, the Court directed that they need not surrender and discharged their bail bonds. The appeals were accordingly allowed.

    Key Legal Takeaway

    The judgment reinforces that in NDPS prosecutions, an FSL report cannot be viewed in isolation from the evidentiary chain connecting the tested sample with the substance allegedly seized from the accused. While every procedural irregularity under Section 52A does not automatically result in acquittal, total non-compliance coupled with serious defects in identification, sealing, safekeeping and movement of samples can destroy the prosecution’s link evidence.

    Where that breakdown makes it impossible to establish that the substance scientifically tested was the same substance allegedly recovered from the accused, the forensic report may lose its evidentiary foundation.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Supreme Court

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  • Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

    Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Gujarat High Court has suspended the 15-year rigorous imprisonment imposed on two persons convicted in a commercial-quantity NDPS case and granted them bail pending their criminal appeals, after finding a prima facie issue of non-compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

    A Division Bench comprising Justice Ilesh J. Vora and Justice R.T. Vachhani, in Moneshkumar Sukhenbhai Garange v. State of Gujarat, passed the common interim order on 29 April 2026 in Criminal Misc. Application No. 1 of 2026 in Criminal Appeal Nos. 408 and 685 of 2026.

    The Court found substance, at the prima facie stage, in the contention that the raiding officer could not have offered the accused an option of being searched before himself, in addition to the statutory alternatives of a Magistrate or Gazetted Officer. The Bench accordingly suspended the sentence during pendency of the appeals.

    Importantly, the order is not a final acquittal. The High Court expressly clarified that its observations are tentative and prima facie and will not affect the final hearing of the criminal appeals.

    Two Accused Sentenced to 15 Years in Mephedrone Case

    • The applicants, original Accused Nos. 1 and 2, had been convicted under Sections 8(c), 22(c) and 29 of the NDPS Act by the Additional Sessions Judge, Ahmedabad, in Special NDPS Case No. 42 of 2023.
    • By judgment dated 25 November 2025, they were sentenced to 15 years’ rigorous imprisonment and a fine of ₹2 lakh. They subsequently filed criminal appeals before the Gujarat High Court and sought suspension of sentence and bail during pendency of those appeals.

    Prosecution Alleged 118.240 Grams of Mephedrone Was Recovered

    • According to the prosecution, SOG Ahmedabad received secret information on 5 February 2023 that the accused had travelled to Rajasthan to obtain MD drugs and were returning to Ahmedabad in a Ford car.
    • Police recorded the information, transmitted it to a superior officer and intercepted the vehicle while it was allegedly entering Ahmedabad from the Gandhinagar-Koba Circle side towards Indira Bridge.
    • During the personal search, police claimed to have recovered 59.150 grams of mephedrone from Himesh Garange and 59.090 grams from Monesh Garange, making a total alleged recovery of 118.240 grams.
    • The prosecution examined 15 witnesses and produced 51 documents during trial. Accused Nos. 1 to 3 were eventually convicted under Sections 8(c) and 22(c) read with Section 29 of the NDPS Act.

    Accused Challenge Search Under Section 50 NDPS Act

    • Senior Advocate Yatin Oza, appearing for the applicants, raised several objections to the conviction.
    • A principal contention was that there had been non-compliance with Section 50 of the NDPS Act, which provides safeguards when an authorised officer is about to search a person.
    • The accused had allegedly been told that they could be searched before a Gazetted Officer, the nearest Magistrate, or before PW-8 B.P. Chaudhary himself, who was the raiding officer and a Gazetted Officer.
    • The defence argued that Section 50 does not contemplate such a “third option” and that the raiding officer could not simultaneously offer himself as the Gazetted Officer before whom the accused could choose to be searched.
    • Other arguments were also raised concerning Sections 42 and 43 and the handling and custody of samples, including alleged inconsistencies concerning the colour of the contraband, dispatch particulars and non-examination of the person who carried the samples to the FSL.
    • The High Court, however, primarily focused on the Section 50 issue while considering whether the sentence should be suspended.

    State Invokes Commercial Quantity and Section 37 Rigours

    • The State opposed the applications, arguing that the trial court had correctly convicted the applicants on the basis of the evidence.
    • It maintained that the police officers were duly empowered to conduct the search and seizure and that the accused had been informed of their rights under Section 50 before consenting to the search.
    • The prosecution also relied upon the presumptions under Sections 35 and 54 of the NDPS Act and emphasised that the case involved commercial quantity. It therefore contended that the stringent requirements of Section 37 of the NDPS Act should apply even at the stage of considering suspension of sentence and bail pending appeal.

    Appellate Court Must Examine Whether Conviction Has Fair Chance of Being Set Aside

    • The Gujarat High Court referred to the Supreme Court’s decision in Om Prakash Sahni v. Jai Shankar Chaudhary & Anr., (2023) 6 SCC 123 on the principles governing suspension of sentence pending appeal.
    • The Court noted that, while deciding such an application, the appellate court may examine whether there is something apparent or gross on the face of the record that gives rise to a prima facie conclusion that the conviction may ultimately not be sustainable.
    • The Bench was conscious that the evidence could not be fully re-analysed at the interim stage. However, because the conviction was based upon the contraband allegedly recovered during the applicants’ personal searches, the Court considered compliance with Section 50 to be particularly significant.

    Section 50 Safeguard Must Be Properly Communicated

    • The High Court referred to the Constitution Bench judgment in State of Punjab v. Baldev Singh, (1999) 6 SCC 172.
    • The Constitution Bench had explained that an accused about to be personally searched must be informed of the existence of the right under Section 50(1) to be searched before the nearest Gazetted Officer or Magistrate. Failure to observe the statutory safeguard can render recovery from the personal search suspect and affect a conviction based upon that recovery.
    • The Gujarat High Court then considered the more specific issue of whether the searching officer could introduce a third alternative.

    Supreme Court’s Parmanand Judgment: “Third Option” Can Vitiate Section 50 Compliance

    • The Bench placed significant reliance on State of Rajasthan v. Parmanand & Anr., (2014) 5 SCC 345.
    • In Parmanand, the Supreme Court emphasised that communication of the right under Section 50 must be clear, unambiguous and individual, because the safeguard is intended to protect an accused against the possibility of false implication in cases carrying stringent punishments.
    • More importantly, the Supreme Court had disapproved of an accused being told that, besides the nearest Magistrate or Gazetted Officer, he could be searched before a senior police officer who was himself part of the raiding party.
    • The Supreme Court reasoned that the statutory safeguard is intended to give the accused the opportunity of a search in the presence of an independent officer. Providing a third option not contemplated by Section 50 could frustrate that protection.

    Searching Officer Cannot Act in Dual Capacity

    • The Gujarat High Court also discussed State of Rajasthan v. Ram Chandra.
    • The Supreme Court had explained that if the officer proposing to conduct the search is himself a Gazetted Officer and gives the accused the option of being searched in his own presence, the requirement of Section 50 would not be satisfied because the searching officer cannot act in a dual capacity—both as the officer conducting the search and as the Gazetted Officer before whom the accused is offered the statutory choice of search.
    • This distinction became central to the Gujarat High Court’s consideration of the present applications.

    Raiding Officer Offered Himself as an Option: Gujarat High Court

    • On examining the evidence of PW-8 and the written notices at Exhibits 80 and 82, the High Court found that PW-8, who was himself the raiding officer, had informed the accused that they could be searched before him, a Magistrate or any Gazetted Officer.
    • The Bench consequently recorded a prima facie view that the raiding officer could not have given the accused an option to be searched before himself.
    • Relying on Parmanand and the Supreme Court’s decision in State of Himachal Pradesh v. Surat Singh, the High Court held that there was substance in the applicants’ argument concerning non-compliance with Section 50 of the NDPS Act.

    15-Year Sentence Suspended; Accused Granted Bail

    • Without undertaking an extensive examination of the merits, the Division Bench held that the circumstances justified exercise of discretion in favour of the applicants.
    • The Court therefore suspended the 15-year sentence imposed by the Special NDPS Judge during pendency of the criminal appeals and directed that the applicants be released on bail upon furnishing a personal bond of ₹10,000 each with one surety each of the like amount.
    • The accused were directed not to leave India without prior permission of the High Court, to appear when the appeals are taken up for final hearing and to intimate any change in address to the concerned police station and the Court.

    Bail Order Does Not Set Aside NDPS Conviction

    • The legal effect of the order needs to be distinguished from a final decision on the appeals.
    • The Gujarat High Court has not acquitted the applicants or finally declared the search illegal. Their convictions remain under challenge in the pending criminal appeals.
    • The Court specifically stated that the observations in the suspension-of-sentence order are “tentative and prima-facie in nature” and shall not come in the way when the appeals are heard finally.

    Why the Order Is Significant

    The order reiterates the importance of strict adherence to procedural safeguards in cases involving personal search under the NDPS Act, particularly where the alleged recovery forms the principal basis of conviction.

    It also highlights a crucial distinction under Section 50: merely informing an accused about a Gazetted Officer or Magistrate may not necessarily cure the process if the notice simultaneously introduces a legally impermissible option that could dilute or confuse the statutory right.

    The Gujarat High Court’s prima facie reasoning therefore reinforces the proposition that the officer proposing to conduct the personal search cannot present himself as the independent Gazetted Officer contemplated by the Section 50 safeguard.

    At the same time, because the present order concerns only suspension of sentence pending appeal, the final determination of the legality of the search, conviction and evidentiary issues remains open.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Gujarat High Court

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  • Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Gujarat High Court has allowed an appeal filed by Lincoln Pharmaceuticals Private Limited against the rejection of its trademark application for “GLYPANTA”, holding that Section 20 of the Trade Marks Act, 1999 permits advertisement of a trademark application despite objections under Section 11(1).

    Justice Mauna M. Bhatt, by an order dated 20 November 2025 in Lincoln Pharmaceuticals Private Limited v. Registrar of Trade Marks & Anr., R/Civil Appeal No. 7 of 2025, quashed the Trade Marks Registry’s rejection order dated 11 August 2025 and directed the Registry to proceed with advertisement of the application within three months.

    The ruling does not amount to final registration of “GLYPANTA.” The Court directed advertisement of the application, leaving any opposition to be considered independently on its merits.

    Lincoln Pharmaceuticals Sought Registration of ‘GLYPANTA’

    • Lincoln Pharmaceuticals had filed an application on 22 August 2023 under Section 18(1) of the Trade Marks Act, 1999, seeking registration of the mark “GLYPANTA.”
    • The application was examined by the Trade Marks Registry, which issued an examination report raising objections. Lincoln Pharmaceuticals responded through a detailed reply dated 30 October 2023, raising various grounds in support of registration.
    • According to the pharmaceutical company, however, the grounds raised in its response were not properly considered before the application was ultimately rejected on 11 August 2025.
    • The rejection prompted Lincoln Pharmaceuticals to approach the Gujarat High Court under Section 91 of the Trade Marks Act.

    Section 11(1) Objection Raised Over Similar Trademark

    • The principal objection before the Registry arose under Section 11(1) of the Trade Marks Act, which deals with relative grounds for refusal of trademark registration, including situations where similarity with an earlier trademark may create a likelihood of confusion.
    • Lincoln Pharmaceuticals argued that the objection was unsustainable and that its detailed response to the examination report had not been properly considered.
    • One of the company’s key arguments was that even where competing pharmaceutical trademarks fall within the same class, differences in the composition of the respective pharmaceutical products may constitute an additional mitigating factor while assessing likelihood of confusion.

    Delhi High Court’s Elyon Pharmaceuticals Decision Cited

    • To support this argument, Lincoln Pharmaceuticals relied upon the Delhi High Court’s decision in Elyon Pharmaceuticals Pvt. Ltd. v. Registrar of Trademarks, C.A. (COMM.IPD-TM) 153/2021, decided on 23 August 2023.
    • In that case, the Delhi High Court had considered the marks “ELEMENTAL” and “ELMENTIN” and observed that differences in the pharmaceutical composition of products could provide an additional mitigating consideration when examining the possibility of public confusion.
    • Lincoln Pharmaceuticals relied on this reasoning to argue that the Registry’s Section 11(1) objection against “GLYPANTA” should not have resulted in rejection of its application in the manner adopted.

    Company Says ‘GLYPANTA’ Was Already in Use Since 2023

    • Another argument raised before the High Court was that the Registry had relied upon trademarks that were proposed to be used, whereas Lincoln Pharmaceuticals claimed that “GLYPANTA” had been in use since 2023 and had acquired a substantial market for the product.
    • The company also objected to the fact that its application had been rejected before publication in the Trade Marks Journal.
    • Its contention was that publication would enable the statutory process to proceed and, if any third party wished to oppose the application, such opposition could thereafter be considered in accordance with law.

    Section 20 Permits Advertisement Despite Section 11 Objections: Lincoln Pharmaceuticals

    • Lincoln Pharmaceuticals placed particular reliance upon Section 20 of the Trade Marks Act, 1999.
    • It argued that even where objections under Sections 11(1) or 11(2) exist, the statutory framework permits advertisement of a trademark application.
    • The company therefore sought an opportunity for its application to be advertised rather than being rejected outright before publication.
    • The Registry’s counsel also raised an issue concerning non-joinder of the opposition party. Lincoln Pharmaceuticals responded that no private respondent was required at that stage because the challenge concerned rejection of the application before publication.
    • The High Court recorded that counsel appearing for the respondents could not dispute the provisions of Section 20.

    Gujarat High Court Relies on Section 20

    • After considering the submissions, Justice Mauna M. Bhatt noted that Section 20 permits advertisement despite objections under Section 11(1).
    • On that basis, the Court allowed Lincoln Pharmaceuticals’ appeal and quashed and set aside the Trade Marks Registry’s order dated 11 August 2025.
    • The Registry was then specifically directed to proceed with advertisement of the subject trademark application in accordance with the proviso to Section 20 of the Trade Marks Act.
    • The Court directed that the exercise be completed within three months from receipt of its order.

    Any Opposition to ‘GLYPANTA’ Must Be Decided on Its Own Merits

    • Significantly, the High Court did not direct the Registry to grant final registration of “GLYPANTA.”
    • Instead, the Court restored the application to the stage of advertisement. It expressly provided that if any opposition is filed against the trademark application after advertisement, such opposition must be decided on its own merits.
    • Thus, Lincoln Pharmaceuticals succeeded in having the rejection order set aside and obtaining publication of its application, but the ultimate registrability of “GLYPANTA” remains subject to the statutory process, including any opposition that may be filed.

    Why the Judgment Matters for Trademark Applicants

    • The order is significant for trademark prosecution because it highlights the distinction between an examination-stage objection and the subsequent advertisement/opposition process.
    • In the circumstances before it, the Gujarat High Court relied on Section 20 to permit the application to proceed to advertisement despite the Section 11(1) objection, rather than allowing the pre-publication rejection to stand.
    • The decision is particularly relevant to pharmaceutical trademark applications, where the Registry frequently examines competing marks closely because of concerns regarding similarity and confusion. The case also demonstrates that factors such as the nature and composition of competing pharmaceutical products may be raised by an applicant while responding to relative-ground objections, though the Gujarat High Court did not finally adjudicate the merits of the “GLYPANTA” mark’s registrability in this order.

    Key Legal Takeaway

    The immediate principle emerging from the order is that the existence of a Section 11(1) objection does not, by itself in the circumstances considered by the Court, prevent the application from being advertised under Section 20.

    At the same time, advertisement should not be confused with registration. Publication gives third parties an opportunity to oppose the mark, and the Registry retains the responsibility to determine any such opposition on its merits.

    Connected Matter

    Delhi High Court Sets Aside Rejection of “ELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Gujarat High Court

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  • CESTAT Delhi- Packaging Material Cannot Be Treated at Par with Imported Input Under Advance Authorisation

    CESTAT Delhi- Packaging Material Cannot Be Treated at Par with Imported Input Under Advance Authorisation

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    CESTAT Delhi- Packaging Material Cannot Be Treated at Par with Imported Input Under Advance Authorisation

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), New Delhi has allowed an appeal filed by M/s N.V. Distilleries and Breweries Ltd., setting aside an adjudication order that had sought recovery of customs duty on the allegation that the company violated the conditions of Notification No. 96/2009-Cus dated 11 September 2009 while fulfilling export obligations under the Advance Authorisation Scheme.

    The Principal Bench comprising Dr. Rachna Gupta, Officiating President, and Ms. Hemambika R. Priya, Member (Technical) delivered Final Order No. 51464/2026 on 15 September 2026 in Customs Appeal No. 50064 of 2020.

    The Tribunal drew an important distinction between an input physically incorporated in the exported product and packaging materials used for packing that product, holding that bottles, caps and labels could not be placed at par with the imported Vatted Malt Scotch used in manufacturing Indian Made Foreign Liquor (IMFL).

    The Dispute: Advance Authorisation and Rule 19(2) Benefits

    • N.V. Distilleries was engaged in the manufacture of Indian Made Foreign Liquor (IMFL), Country Liquor, PET bottles and un-denatured spirit. The dispute originated from intelligence received by the Directorate of Revenue Intelligence (DRI), Chandigarh Regional Unit concerning alleged violation of the conditions governing Advance Authorisations.
    • The Department alleged that the appellant had violated the condition contained in Notification No. 96/2009-Cus because, while using duty-free imported inputs under Advance Authorisations, it had also used domestically procured bottles, caps and labels under Rule 19(2) of the Central Excise Rules, 2002 in the exported IMFL.
    • According to the Department, exports manufactured using such domestically procured duty-free materials could not be counted towards discharge of the export obligation under the Advance Authorisations.

    Show Cause Notice Proposed Substantial Customs Duty Recovery

    • A Show Cause Notice dated 20 October 2016 proposed, among other things, recovery of ₹1,93,62,179 in customs duty by invoking the bonds executed at the time of duty-free imports and Section 28(4) of the Customs Act, 1962, along with interest under Section 28AA.
    • A further customs duty demand of ₹94,20,905 was proposed in respect of two Advance Authorisations on the allegation of failure to fulfil export obligations. The notice also proposed appropriation of amounts already deposited and penalties under Sections 114A and 114AA of the Customs Act, 1962.
    • The proposals in the Show Cause Notice were subsequently confirmed through Order-in-Original No. 14/2019 dated 30 August 2019, leading N.V. Distilleries to approach CESTAT.

    Appellant: Imported VMS and Domestic Packaging Were Different Materials

    • The appellant’s central argument was that the essence of the Advance Authorisation Scheme is that the imported input must be physically incorporated in the resultant export product.
    • In the present case, the appellant had imported Vatted Malt Scotch (VMS) under Advance Authorisation, which was incorporated into the IMFL subsequently exported.
    • However, the bottles, caps and labels were domestically procured under Annexure-45 and Rule 19(2) of the Central Excise Rules. Therefore, according to the appellant, there was no overlapping or double benefit because the imported material and the domestically procured materials were entirely different.
    • The appellant further argued that the Government’s export incentive framework is intended to neutralise domestic taxes and duties so that taxes are not exported. According to it, Advance Authorisation was availed for imported VMS, whereas Annexure-45 was utilised for domestically procured glass bottles, caps and labels, with the duty benefit being claimed only once in each case.
    • Reliance was placed upon the Punjab and Haryana High Court’s decision in R.P. International v. Union of India, 2017 (353) E.L.T. 307 (P&H).

    Revenue: Exemption Notification Must Be Strictly Construed

    1. The Revenue defended the adjudication order by contending that Condition (viii) of Notification No. 96/2009-Cus prohibited counting exports involving inputs sourced under Annexure-45 towards fulfilment of Advance Authorisation obligations.
    2. It alleged that the appellant had simultaneously used domestically sourced duty-free goods and imported duty-free material and had therefore breached the exemption conditions.
    3. The Department also relied upon the Supreme Court decisions in CCE, Chandigarh-I v. Mahaan Dairies, (2004) 11 SCC 798 and Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company, 2018 (361) E.L.T. 577 (S.C.) to argue that exemption notifications must be strictly interpreted and their conditions strictly complied with.

    CESTAT Examines Meaning of “Materials”

    • The Tribunal identified the principal question as whether the importer had failed to fulfil its export obligations and violated Notification No. 96/2009-Cus, thereby attracting customs duty, interest and penalties under Sections 114A and 114AA.
    • CESTAT examined the Advance Authorisation framework and noted that the scheme permits duty-free import of inputs physically incorporated in the manufactured or resultant product that is required to be exported.

    Significantly, the Tribunal examined the definition of “materials” under the notification. It noted that the definition separately identifies:

    • raw materials, components, intermediates, consumables, catalysts and parts required for manufacture of the resultant product; and
    • packaging materials required for packing the resultant product.

    This statutory distinction became central to the outcome.

    Packaging Material Is Different From Manufacturing Input: CESTAT

    • CESTAT held that the notification itself differentiates between goods required for manufacture of the resultant product and goods merely used for packaging.
    • In this case, the raw material imported for manufacture of the resultant IMFL was VMS. Bottles, caps and labels, on the other hand, constituted packaging materials domestically procured under Annexure-45.
    • The Tribunal therefore held that the relevant condition of Notification No. 96/2009-Cus would apply to the imported material used in manufacturing the resultant product and that the packaging materials could not simply be equated with VMS.

    R.P. International Decision Relied Upon

    • CESTAT also relied on R.P. International v. Union of India to explain the distinction between the DFIA Scheme and the Advance Authorisation Scheme.
    • The Punjab and Haryana High Court had explained that while DFIA permits duty-free import of inputs “required for production of export product”, Advance Authorisation concerns inputs that are “physically incorporated in the export product.”
    • Applying that distinction, CESTAT found that in the case of Advance Authorisation, the relevant imported input was the material physically incorporated into the resultant exported product.
    • The Tribunal consequently held that the packaging material had been wrongly placed at par with the imported VMS used in manufacturing IMFL. Since the packaging material was not physically incorporated in the IMFL itself, the exports were wrongly alleged to violate the Advance Authorisation conditions. The findings contained in the Order-in-Original were therefore liable to be set aside.

    DRI Jurisdiction Objection Rejected

    • The appellant also challenged the jurisdiction of DRI officers to initiate proceedings under Section 28 of the Customs Act.
    • CESTAT referred to the Supreme Court litigation concerning the competence of DRI officers to issue demand notices. It noted that although the earlier Supreme Court decision had held against DRI’s jurisdiction, the subsequent review judgment held that DRI officers, when appointed as customs officers and assigned the relevant functions of a “proper officer,” are competent to issue Show Cause Notices under Section 28.
    • The Tribunal therefore rejected N.V. Distilleries’ jurisdictional objection.
    • This aspect of the decision is important: the importer did not succeed on the DRI jurisdiction ground. Its appeal succeeded on the substantive merits of the Advance Authorisation dispute.

    CESTAT Sets Aside Order-in-Original and Allows Appeal

    Ultimately, CESTAT held that although the preliminary issue concerning DRI jurisdiction was decided against the appellant, the appellant succeeded on merits.

    The Tribunal accordingly set aside the Order-in-Original dated 30 August 2019 and allowed the appeal of N.V. Distilleries and Breweries Ltd.

    Significance for Advance Authorisation Holders

    The ruling is significant for exporters operating under the Advance Authorisation Scheme because it emphasises that the nature and role of each material must be examined before alleging violation of an exemption condition.

    The Tribunal’s reasoning distinguishes an imported input that is physically incorporated into the resultant export product from materials used for its packaging.

    The mere use of domestically procured packaging materials under another duty-relief mechanism cannot, on the reasoning adopted in this case, automatically justify treating those packaging materials at par with the imported manufacturing input. At the same time, the decision should not be read as permitting non-compliance with conditions attached to Advance Authorisations generally.

    The ruling turns on the wording of Notification No. 96/2009-Cus and the Tribunal’s finding that VMS and the domestically procured bottles, caps and labels occupied materially different roles in relation to the exported IMFL.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: CESTAT Delhi

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  • Delhi High Court Acquits NDPS Accused Over Three-Month Delay in Sending Drug Sample for Testing; Raises Doubt Over Safe Custody

    Delhi High Court Acquits NDPS Accused Over Three-Month Delay in Sending Drug Sample for Testing; Raises Doubt Over Safe Custody

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 15.09.2026

    Delhi High Court Acquits NDPS Accused Over Three-Month Delay in Sending Drug Sample for Testing; Raises Doubt Over Safe Custody

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Delhi High Court has held that an unexplained delay in sending a seized narcotic sample for forensic examination can prove fatal to the prosecution where the evidence fails to establish that the sample remained in proper and safe custody during the intervening period.

    In Rishi Dev @ Onkar Singh v. State (Delhi Administration), CRL.A. No. 757 of 2000, the High Court set aside the appellant’s conviction under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and acquitted him after finding serious deficiencies in the prosecution’s handling and preservation of the seized sample. The judgment was delivered by Justice S. Muralidhar on 1 May 2008.

    The Court held that where there is doubt whether the sample ultimately tested by the forensic laboratory was the very sample recovered from the accused, the benefit of that doubt must necessarily go to the accused.

    Trial Court Had Sentenced Accused to 10 Years’ Rigorous Imprisonment

    • The appeal arose from a judgment dated 25 November 2000 passed by the Additional Sessions Judge, Delhi, convicting Rishi Dev in FIR No. 290/90 for allegedly possessing 300 grams of smack.
    • The trial court had sentenced him to 10 years’ rigorous imprisonment and imposed a fine of ₹1 lakh, with a further six months’ rigorous imprisonment in default of payment.
    • According to the prosecution, police personnel were checking passers-by near Tejab Mill, Bhola Nath Nagar, Shahdara, when the appellant allegedly attempted to move away and subsequently ran on being asked to stop.
    • After he was apprehended, the police claimed to have recovered a packet containing brown-coloured powder from his clothing. The substance was allegedly weighed at the spot and found to be 300 grams, from which a 50-gram sample was separated for forensic testing. The laboratory report subsequently stated that the sample tested positive for smack.

    Accused Challenged Chain of Custody and Delay in Forensic Testing

    • Before the Delhi High Court, the appellant raised several objections to the prosecution case.
    • These included alleged non-compliance with Section 50 of the NDPS Act, absence of independent public witnesses, questions regarding the weighing of the contraband, handling of seals, the presence of the FIR number on documents allegedly prepared before registration of the FIR, and significant delay in sending the sample for forensic analysis.
    • A particularly serious objection concerned the delay between seizure and forensic examination.
    • The sample had been collected in December 1999, but the first attempt to send it to the forensic laboratory was made only on 1 March 2000. The appellant argued that there was no satisfactory explanation for what happened to the sample during this lengthy intervening period.

    Delhi HC Notes NCB’s 72-Hour Requirement

    • The High Court referred to Parminder Singh v. State of Haryana, in which the Punjab and Haryana High Court had considered the Narcotics Control Bureau instructions requiring sealed sample parcels to be deposited with the Chemical Examiner within 72 hours.
    • Justice Muralidhar described the requirement as salutary because tampering with a sample recovered from an accused can have fatal consequences for the prosecution case.
    • The Court stressed the need for strict compliance with safeguards concerning the preservation and prompt forwarding of samples.
    • The Court also referred to Matloob v. State (Delhi Administration) and the Delhi High Court Rules requiring articles intended for chemical examination to be forwarded without the least possible delay.

    Evidence Raised Serious Doubts About What Happened to Sample

    • After examining the prosecution witnesses, the High Court found considerable uncertainty regarding the handling of the seized material.
    • The Court observed that for more than two months no attempt was made to send the sample for chemical examination. The first attempt occurred on 1 March 2000 when the sample was taken to Chandigarh.
    • It was subsequently returned and redeposited in the malkhana on 3 March. Another entry indicated that the sample was eventually sent to the FSL at Malviya Nagar on 15 March 2000.
    • More importantly, the evidence indicated that the investigating officer had put the FIR number on the parcels and recovery memo at the police station, but no entry was made regarding removal of the case property from the malkhana for that purpose.
    • These circumstances assumed particular importance because the sample remained within the control of police authorities for a considerable period before forensic testing.

    Delay Alone Is Not Always Fatal

    • The Delhi High Court clarified an important legal distinction: mere delay in sending a narcotic sample for testing is not automatically fatal in every NDPS prosecution.
    • Referring to the Supreme Court decision in Valsala v. State of Kerala, the Court explained that a delayed sample can still be relied upon if the prosecution satisfactorily proves that the seized material remained in proper custody and proper form throughout the intervening period.
    • What is critical is the integrity of the chain linking the seized substance with the sample ultimately examined by the forensic laboratory.
    • The Court also referred to State of Gujarat v. Ismail U Haji Patel, where the Supreme Court emphasised that the decisive question is not simply delay but whether the prosecution establishes that the seized articles remained in proper custody and that the samples examined by the chemical analyst actually related to the seized articles.

    Prosecution Failed to Establish Safe Custody

    • Applying these principles, the High Court found that the prosecution evidence merely disclosed dates on which the sample entered or left the malkhana.
    • It did not satisfactorily explain the nearly three-month delay or establish what happened to the sample during the intervening period.
    • The Court therefore concluded that it was not satisfied that the sample remained in proper and safe custody or that the material eventually sent for forensic testing was necessarily the same sample recovered from the appellant.

    Trial Court’s ‘Practical Approach’ Rejected

    • The trial court had sought to explain the forensic delay by referring generally to the heavy workload of laboratories and the possibility that laboratory officials might refuse to accept samples because of overcrowding.
    • The Delhi High Court expressly disagreed with that approach.
    • It held that the case record should contain written entries demonstrating that an attempt was made to send the sample for testing within the prescribed period. Strict compliance was important because a sample retained in a police malkhana under seals belonging to police officers remained under police control, giving rise to the possibility of tampering and resealing.
    • The Court further held that where the prosecution seeks to explain a delay on the ground that the forensic laboratory could not accept the sample, the record must demonstrate a genuine attempt to dispatch it promptly and its return for reasons beyond the prosecution’s control.

    Such a deficiency in the documentary record cannot subsequently be cured merely through oral evidence.

    Doubt Over Sample Integrity Must Benefit Accused

    • The High Court emphasised that the reliability of a forensic report ultimately depends upon proof that the sample examined was actually the sample recovered from the accused.
    • Where safe custody itself becomes doubtful, the evidentiary value of the laboratory result is correspondingly undermined.

    The Court held:

    “If there is doubt as to the safe custody of the sample that is recovered from the accused, then the benefit of such doubt, must obviously enure to the accused.”

    Three-Month Delay Held Fatal; Accused Acquitted

    • On the facts of the case, the Delhi High Court found that the prosecution had “failed miserably” to satisfy the legal requirements concerning preservation and safe custody of the sample.
    • The nearly three-month delay was held fatal because the prosecution failed to establish that the seized sample had been properly preserved throughout that period and that the sample eventually tested was the same material originally seized.
    • Since the appeal succeeded on this ground alone, the High Court found it unnecessary to examine the appellant’s remaining objections.
    • Accordingly, the Court set aside the conviction dated 25 November 2000 and sentence dated 27 November 2000, acquitted Rishi Dev of the offence under Section 21 of the NDPS Act and directed that he be released forthwith unless required in another case.

    Significance of the Judgment

    The judgment is an important authority on the chain of custody and forensic integrity of seized narcotic samples in NDPS prosecutions.

    It does not establish that every delay beyond 72 hours automatically invalidates an NDPS prosecution. Rather, its central principle is that where there is substantial delay, the prosecution must be able to demonstrate through reliable evidence and contemporaneous records that the seized sample was properly sealed, preserved and safely kept and that the sample ultimately tested was the same sample recovered from the accused.

    In prosecutions carrying severe penal consequences, the forensic chain cannot rest upon assumptions. If an unexplained gap creates reasonable doubt about the identity or integrity of the sample, that doubt may go to the root of the prosecution case.

    Connected Matter

    Delhi High Court Grants Bail Under NDPS Act Over 51-Day Delay in Sampling

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    Source: Delhi High Court

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  • Delhi HC Cancels Deceptively Similar ‘ROCKPAPA’ Trademark; Holds Prior User Has Superior Rights Over Registered Proprietor

    Delhi HC Cancels Deceptively Similar ‘ROCKPAPA’ Trademark; Holds Prior User Has Superior Rights Over Registered Proprietor

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 15.09.2026

    Delhi HC Cancels Deceptively Similar ‘ROCKPAPA’ Trademark; Holds Prior User Has Superior Rights Over Registered Proprietor

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Delhi High Court has ordered removal of a deceptively similar ‘ROCKPAPA’ device mark from the Trade Marks Register, holding that the rights of a prior user can prevail over those of a subsequent user even where the latter has obtained trademark registration.

    In Kia Wang v. Registrar of Trade Marks & Anr., C.O. (COMM.IPD-TM) 2/2021, Justice Jyoti Singh allowed a rectification petition filed by Kia Wang and directed the Registrar of Trade Marks to remove the impugned device mark registered under Trademark No. 4400360 in Class 09. The judgment was delivered on 15 September 2023.

    The Court found the rival marks strikingly similar and concluded that the respondent’s adoption was tainted by bad faith and dishonest intention, aimed at encashing upon the goodwill associated with the petitioner’s mark.

    Dispute Over ‘ROCKPAPA’ Device Mark

    • Kia Wang claimed that he and his wife founded the ROCKPAPA brand in 2014, primarily for products aimed at children, including headphones, pencil boxes and school bags, as well as audio-related products such as headphones, earphones, loudspeakers and portable media players.
    • According to the petition, the brand operated internationally, including in Australia, Canada, Europe, the United States and India. The domain name for ROCKPAPA was registered on 9 April 2014, and the products were also marketed through e-commerce platforms.
    • The petitioner also relied upon trademark registrations obtained abroad, including in the United Kingdom, Australia, United States, Japan and Canada.

    Respondent Obtained Registration in India in 2020

    • Respondent No. 2, Sachin Garg, proprietor of Pooja Creations, applied for registration of the impugned device mark on 7 January 2020. It was subsequently registered in Class 09 for mobile phones and accessories, including chargers, adaptors, batteries, screen protectors, power banks, mobile covers, memory cards, card readers and handsfree devices.
    • Kia Wang claimed that he discovered the registration only in June 2021 and thereafter approached the Delhi High Court seeking rectification of the Register under Sections 47, 57 and 125 of the Trade Marks Act, 1999.
    • Respondent No. 2 did not appear despite service and was eventually proceeded against ex parte. The Registrar did not file a counter-affidavit, though written submissions were placed before the Court.

    Prior User Rights Can Override Subsequent Registration

    • One of the central issues before the Court was the petitioner’s claim of being the prior adopter and prior user of the ROCKPAPA mark.
    • The Court relied upon the Supreme Court decisions in Milmet Oftho Industries v. Allergan Inc., (2004) 12 SCC 624; S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683; and Neon Laboratories Ltd. v. Medical Technologies Ltd., (2016) 2 SCC 672.
    • Referring to these authorities, the High Court reiterated that the “first in the market” test assumes significance where competing trademarks are similar.

    It observed that the “first user” rule is a seminal feature of trademark law and held that:

    A prior user’s rights will override those of a subsequent user even though the subsequent user’s trademark may have obtained registration.

    On the evidence before it, the Court accepted Kia Wang’s claim of use since 2014. His prior use, overseas registrations and continuous use of the mark established that the trademark had become distinctive of his goods and associated with him.

    Court Finds Rival Marks Strikingly Similar

    • The judgment contains a side-by-side visual comparison of the two device marks on page 15. Both use a substantially similar stylised face/hair/moustache device together with the word “Rockpapa”.
    • The Court observed that the similarity between the two marks was “writ large on a bare perusal.”
    • It held that the similarity of the marks, coupled with identity of the competing goods, created a likelihood of consumer confusion and could adversely affect the petitioner’s reputation and goodwill.

    Bad-Faith Trademark Registration Can Be Cancelled

    • The Court then examined Section 11(10)(ii) of the Trade Marks Act, 1999, which requires the Registrar to take into consideration the bad faith involved either on the part of the applicant or opponent while dealing with trademark registration.
    • Relying particularly upon BPI Sports LLC v. Saurabh Gulati, 2023 SCC OnLine Del 2424, the Court explained that “bad faith” essentially involves the absence of honest intention and may include dishonest commercial conduct, fraud, deception or an attempt to appropriate another party’s trademark.
    • Applying this principle, the Court found “little doubt” that Respondent No. 2 had acted with dishonest intention in adopting a similar mark for identical goods, including copying important visual characteristics of the petitioner’s device mark.
    • The Court concluded that the intention was to encash upon the goodwill of the petitioner’s trademark. It also noted that Respondent No. 2 had chosen not to contest the proceedings or rebut the petitioner’s claim of prior use.

    Maintaining ‘Purity of the Register’ Is a Matter of Public Interest

    • The High Court went beyond the private dispute between the parties and emphasised the broader public-interest function of trademark rectification.
    • It referred to Khoday Distilleries Ltd. v. Scotch Whisky Association, (2008) 10 SCC 723, where the Supreme Court stressed the importance of maintaining the purity of the Trade Marks Register and considering the likelihood of deception or confusion.
    • The Court also relied on Hardie Trading Ltd. v. Addisons Paint & Chemicals Ltd., (2003) 11 SCC 92, while considering who qualifies as a “person aggrieved” entitled to seek rectification.
    • The Court held that Kia Wang qualified as a “person aggrieved” because the respondent’s registration operated as a restraint upon legal rights flowing from the petitioner’s prior, long, continuous and uninterrupted use of the mark.

    Important Finding on Section 11(1) and Well-Known Trademark Claim

    • An important nuance in the judgment is that the Court did not accept every ground advanced by the petitioner.
    • Kia Wang had argued that the impugned registration violated Sections 11(1) and 11(2) because ROCKPAPA was an earlier and well-known trademark.
    • The Court rejected this particular argument. It observed that, for purposes of Section 11, the petitioner’s mark did not qualify as an “earlier trade mark” because it was neither registered in India nor covered by the specified categories of Indian/international/convention applications. The Court also found that the material and pleadings were insufficient to classify ROCKPAPA as a well-known trademark under Section 2(1)(zg) read with Section 11(6).
    • This makes the judgment particularly significant: the petition succeeded principally on prior-user rights, deceptive similarity, bad-faith adoption and the need to maintain purity of the Register—not because ROCKPAPA was judicially declared a well-known trademark.

    Delhi High Court Orders Trademark Removed Within Four Weeks

    • Ultimately, the Court allowed the rectification petition and directed the Registrar of Trade Marks to remove Trademark No. 4400360, registered on 7 January 2020 in Class 09, from the Register.
    • The Registrar was directed to complete the rectification within four weeks from receipt of the judgment.

    Key Legal Principle

    The judgment reinforces three significant principles of Indian trademark law: prior user rights may prevail over subsequent registration; bad-faith adoption of a deceptively similar mark can justify cancellation; and rectification jurisdiction serves the wider public interest of maintaining the purity of the Trade Marks Register.

    At the same time, the decision demonstrates that foreign registrations or international popularity alone do not automatically make a mark an “earlier trade mark” or a “well-known trademark” in India for the purposes of Section 11.

    Connected Matter

    Delhi High Court: Prior Formal Declaration Not Required to Claim Protection as a Well-Known Trademark Under Section 11(2)

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Delhi High Court

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  • Delhi High Court Quashes ₹76.72 Lakh Excise Demand; Holds Adjudicating Authority Cannot Disregard Binding CESTAT Order

    Delhi High Court Quashes ₹76.72 Lakh Excise Demand; Holds Adjudicating Authority Cannot Disregard Binding CESTAT Order

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 15.09.2026

    Delhi High Court Quashes ₹76.72 Lakh Excise Demand; Holds Adjudicating Authority Cannot Disregard Binding CESTAT Order

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Delhi High Court has ruled in favour of Wellspring Universal, setting aside a ₹76.72 lakh demand raised by the Central GST authorities after finding that the adjudicating authority had failed to give effect to an earlier CESTAT order which had already upheld the taxpayer’s entitlement to refund.

    A Division Bench comprising Justice Anil Kshetrapal and Justice Shail Jain, in Wellspring Universal v. Additional Commissioner of Central GST, W.P.(C) 11957/2025, set aside both the Demand-cum-Show Cause Notice dated 10 December 2019 and the consequential Order-in-Original dated 24 March 2025. The judgment was pronounced on 14 September 2026.

    The Court also directed refund of the petitioner’s ₹7,67,200 statutory pre-deposit with applicable interest.

    Background of the Dispute

    • Wellspring Universal is a partnership firm engaged in manufacturing engineering products, particularly in the welding sector. It was registered as a 100% Export Oriented Unit (EOU) and also as a private bonded warehouse under Sections 58 and 65 of the Customs Act, 1962.
    • The dispute had a lengthy history involving CENVAT credit, excise duty paid on exports and subsequent refund proceedings.
    • Between April and December 2007, Wellspring exported goods through 36 consignments after paying excise duty of ₹76,72,000. It initially sought rebate under Rule 18 of the Central Excise Rules, 2002. After the Department took the position that the EOU was not required to pay duty on exported goods, the petitioner repaid rebate already sanctioned and subsequently pursued its claim through the CENVAT credit/refund mechanism.
    • Earlier proceedings eventually culminated in an Order-in-Original dated 21 March 2017, whereby proceedings against the petitioner were dropped. That order was accepted by the competent reviewing authority and was not challenged.

    ₹76.72 Lakh Refund Sanctioned

    • Following these proceedings, Wellspring filed a refund claim for ₹76,72,000, which was sanctioned by the Assistant Commissioner, CGST, Janakpuri through Refund Order dated 6 May 2019.
    • The authority found, among other things, that the refund claim was within limitation and that the necessary documents evidencing export had been furnished.
    • The Department, however, reviewed the refund order and filed an appeal before the Commissioner (Appeals). During the pendency of that appeal, a separate Demand-cum-Show Cause Notice dated 10 December 2019 was issued alleging that the ₹76.72 lakh refund had been erroneously sanctioned and proposing recovery with interest.
    • The Commissioner (Appeals) subsequently allowed the Department’s appeal on 16 December 2019, including on the ground that the credit ought to have been transitioned through TRAN-1 and that cash refund could not be sustained.

    CESTAT Ultimately Upheld Wellspring’s ₹76.72 Lakh Refund

    • Wellspring challenged the Commissioner (Appeals)’ order before CESTAT.
    • In Final Order No. 56215/2024 dated 1 August 2024, CESTAT allowed Wellspring’s appeal and set aside the Commissioner (Appeals)’ order.
    • Significantly, CESTAT did not decide the matter merely on a technical ground. It expressly held that Wellspring was entitled to refund of ₹76,72,000 under Rule 5 of the CENVAT Credit Rules, 2004.
    • CESTAT further held that a substantive benefit could not be denied merely because the petitioner had quoted the wrong rule while claiming refund or because the Assistant Commissioner had sanctioned it with reference to an incorrect rule.
    • CESTAT also specifically examined the Department’s limitation objection and held that the refund claim was not barred by limitation.

    Department Still Confirmed ₹76.72 Lakh Demand

    • Despite the CESTAT decision, the Additional Commissioner passed an Order-in-Original on 24 March 2025, confirming the ₹76.72 lakh demand against Wellspring.
    • Among the grounds adopted were that earlier refund claims had been rejected and not challenged, that the subsequent refund applications constituted fresh claims barred by limitation, and that the 2019 Refund Order had been set aside by the Commissioner (Appeals).
    • This prompted Wellspring to approach the Delhi High Court.

    Delhi High Court: CESTAT’s Operative Order Could Not Be Ignored

    • The High Court found a fundamental flaw in the Department’s approach.
    • It observed that the Commissioner (Appeals)’ order dated 16 December 2019, on which the Additional Commissioner had relied, had itself already been set aside by CESTAT on 1 August 2024.
    • Therefore, the adjudicating authority could not proceed in March 2025 as though the Commissioner (Appeals)’ order continued to remain an operative determination against Wellspring.

    The Court emphasised a significant principle governing departmental adjudication:

    An adjudicating authority exercising statutory powers must take into account operative orders passed by appellate authorities having appellate jurisdiction over it and cannot disregard a subsequent appellate determination directly bearing upon the issue under adjudication.

    Limitation Issue Could Not Be Reopened Contrary to CESTAT Finding

    • The High Court also rejected the Department’s attempt to once again treat the refund as time-barred.
    • CESTAT had already specifically considered the limitation issue and decided it in Wellspring’s favour. The Additional Commissioner, therefore, could not simply treat the refund as a fresh application and reach a conclusion directly contrary to the Tribunal’s determination.
    • The High Court observed that the petitioner had specifically communicated CESTAT’s 2024 decision to the adjudicating authority on 24 February 2025. Thus, this was not a situation where the authority was unaware of the appellate decision.
    • Nevertheless, the Order-in-Original was passed on 24 March 2025 without dealing with its effect.

    Substantive Refund Benefit Cannot Be Denied Merely for Quoting Wrong Rule

    • Another important aspect of the case is CESTAT’s underlying finding, which the High Court treated as operative.
    • CESTAT had held that Wellspring was substantively entitled to the ₹76.72 lakh refund under Rule 5 of the CENVAT Credit Rules, 2004, and that the benefit could not be denied merely because an incorrect rule had been quoted while filing or sanctioning the refund claim.
    • The High Court clarified that CESTAT’s order had not merely removed the Commissioner (Appeals)’ order on a procedural or technical basis; the Tribunal had actually examined and upheld Wellspring’s substantive entitlement to the refund.

    Delhi High Court Quashes SCN and Order-in-Original

    • The Court ultimately found that the Additional Commissioner had committed a “manifest error” in confirming the ₹76.72 lakh demand.
    • It held that the impugned adjudication was fundamentally unsustainable because it failed to give effect to CESTAT’s subsequent Final Order and proceeded on the basis of an appellate order that had already ceased to exist.

    Accordingly, the High Court:

    • allowed Wellspring Universal’s writ petition;
    • set aside the Demand-cum-Show Cause Notice dated 10 December 2019;
    • set aside the Order-in-Original dated 24 March 2025 confirming ₹76.72 lakh demand; and
    • directed refund of ₹7,67,200 deposited as statutory pre-deposit, together with applicable interest in accordance with law.

    Why the Judgment Is Significant

    • The ruling reinforces judicial and quasi-judicial discipline within the tax adjudication hierarchy. Once a competent appellate tribunal has conclusively decided an issue and its order has neither been stayed nor set aside, a subordinate adjudicating authority cannot effectively nullify that decision by deciding the same issue on a contrary premise.
    • The High Court specifically recorded that CESTAT’s Final Order dated 1 August 2024 had not been shown to have been stayed or set aside in subsequent proceedings.
    • The judgment is also significant for legacy Central Excise/CENVAT disputes transitioning into the GST era. It demonstrates that the existence of a separate demand proceeding cannot justify ignoring an operative appellate determination that directly decides the taxpayer’s entitlement and limitation issues.

    Key Legal Principle

    A statutory adjudicating authority cannot disregard an operative decision of the appellate authority having jurisdiction over it. Where CESTAT has already adjudicated the taxpayer’s substantive entitlement to refund and limitation, the adjudicating authority cannot subsequently confirm a demand on premises directly contrary to that binding appellate determination.

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    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Delhi High Court

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  • Delhi High Court: Prior Formal Declaration Not Required to Claim Protection as a Well-Known Trademark Under Section 11(2)

    Delhi High Court: Prior Formal Declaration Not Required to Claim Protection as a Well-Known Trademark Under Section 11(2)

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 14.09.2026

    Delhi High Court: Prior Formal Declaration Not Required to Claim Protection as a Well-Known Trademark Under Section 11(2)

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    In an important ruling on the protection of well-known trademarks across dissimilar classes of goods, the Delhi High Court has held that a trademark need not have already been formally declared a “well-known trademark” before its proprietor can invoke Section 11(2) of the Trade Marks Act, 1999 to oppose registration of an identical or similar mark for dissimilar goods.

    Justice Jyoti Singh delivered the ruling in an appeal filed by Columbia Pictures Industries, Inc., challenging the Registrar of Trade Marks’ rejection of its opposition to registration of the mark “GHOST BUSTER” in Class 05. The Court did not itself finally declare GHOSTBUSTERS a well-known trademark or finally reject the rival mark. Instead, it remanded the matter to the Registrar for fresh consideration of Columbia Pictures’ well-known-mark and bad-faith objections.

    Columbia Pictures Opposed Registration of ‘GHOST BUSTER’ in Class 05

    • The dispute arose after an application was filed for registration of “GHOST BUSTER” in Class 05 for pharmaceutical, veterinary and sanitary preparations, dietetic substances for medical use, food for babies, dressings, disinfectants, fungicides, herbicides and other specified products.
    • Columbia Pictures filed a notice of opposition on 18 April 2022. However, the Registrar rejected the opposition by an order dated 16 April 2025, prompting Columbia Pictures to approach the Delhi High Court under Section 91 of the Trade Marks Act read with Rule 156 of the Trade Marks Rules, 2017.

    Columbia Relied on Decades-Old GHOSTBUSTERS Franchise

    • Columbia Pictures asserted that it is an American film studio and production company and that GHOSTBUSTERS, first released in 1984, became one of the best-known supernatural comedy film franchises.
    • The judgment records that the franchise subsequently expanded through sequels, animated television series and later films, including Ghostbusters: Afterlife and Ghostbusters: Frozen Empire. In India, the movies have been released since 1985 and have also been made available through various streaming platforms.
    • Columbia also relied upon extensive merchandising, advertising and media coverage associated with the GHOSTBUSTERS name. The judgment records that merchandise bearing the mark—including apparel, toys, mugs, keychains, books and other products—was available in India.

    GHOSTBUSTERS Already Registered in India in Multiple Classes

    • There was no dispute that Columbia Pictures held Indian registrations for GHOSTBUSTERS in Classes 09 and 41, registered on 14 August 2012 with claimed use since 29 November 1985, and registrations in Classes 25 and 28 dated 25 October 2019.
    • The rival application for GHOST BUSTER, however, was filed on 1 December 2020 on a “proposed to be used” basis in Class 05.
    • This difference in classes became central to the controversy.

    Registrar Rejected Opposition Because Goods Were Dissimilar

    • The Registrar essentially rejected Columbia’s opposition because its GHOSTBUSTERS registrations related to Classes 09, 41, 25 and 28, whereas the rival GHOST BUSTER application concerned Class 05.
    • The Registrar reasoned that Columbia had not shown prior use of GHOSTBUSTERS specifically for Class 05 goods and therefore could not claim monopoly merely on the strength of registrations in other classes.
    • The Registrar also accepted the rival applicant’s explanation that “GHOST” referred to unexpected “ghost peaks” appearing in chromatography and “BUSTER” referred to the product’s function of eliminating or removing impurities responsible for such peaks.

    Delhi HC Finds Registrar Failed to Consider a Crucial Section 11(2) Objection

    • The High Court found a fundamental flaw in this approach.
    • Justice Jyoti Singh observed that Columbia had specifically claimed that GHOSTBUSTERS was an earlier well-known trademark within the meaning of Section 11(2) and was consequently entitled to protection even against a nearly identical mark proposed for registration in a different class.
    • Yet the Registrar had failed to adjudicate this contention.
    • The Court described the non-consideration as a “glaring error”, noting that once such an opposition was raised, the Registrar was required to examine it and decide whether the earlier mark qualified for protection under Section 11(2).

    Section 11(2) Protects Well-Known Marks Even Against Dissimilar Goods

    • Section 11(2) assumes particular significance because it extends trademark protection beyond the conventional requirement that competing goods or services must be similar.
    • The provision contemplates refusal of registration where the later mark is identical or similar to an earlier trademark, even for dissimilar goods or services, if the earlier mark is a well-known trademark in India and use of the later mark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or reputation of the earlier mark.
    • Accordingly, if Columbia could establish that GHOSTBUSTERS satisfied the statutory threshold of a well-known trademark, the mere fact that the rival application fell in Class 05 could not, by itself, dispose of its opposition.

    Prior Formal Declaration as ‘Well-Known’ Is Not Mandatory

    • The most important legal finding of the judgment concerns whether an opponent must first obtain a formal declaration of well-known status before relying on Section 11(2).
    • The Delhi High Court answered that question in the negative.
    • Justice Jyoti Singh held that Section 11(2) neither requires nor envisages that the earlier trademark must already have been formally declared a well-known trademark. Instead, the inquiry is whether the earlier mark satisfies the statutory threshold of being well known among the relevant segment of the public and enjoys the requisite reputation in India.
    • The Court emphasised the statutory phrase “entitled to protection as a well-known trademark” and held that “entitled” cannot simply be read as “declared”. The factors prescribed under Sections 11(6) and 11(7) are therefore relevant to determining whether the mark satisfies that threshold.

    Rule 124 Is Not the Only Route to Well-Known Mark Protection

    • The Registrar’s side argued that Columbia should first have invoked Rule 124 of the Trade Marks Rules, 2017, which provides a mechanism for determination of a trademark as well known.
    • The High Court rejected the proposition that Rule 124 constitutes a mandatory pre-condition for invoking Section 11(2) in opposition proceedings.
    • The Court pointed out that the legislation deliberately uses different expressions—“well-known trademark” in Section 11(2) and “determined to be well known” in Section 11(8). It consequently held that there is no statutory prescription requiring the proprietor of an earlier mark first to secure a formal well-known trademark declaration before invoking Section 11(2).

    Registrar Can Determine Well-Known Character During Opposition Proceedings

    • The ruling has important procedural implications.
    • According to the High Court, when Section 11(2) is invoked in opposition proceedings, the Registrar is empowered to examine whether the earlier mark is well known by considering evidence against the statutory factors contained in Sections 11(6) and 11(7), read with Section 2(1)(zg).
    • Those factors may include the duration and extent of use, promotion, recognition among the relevant public, registrations and the record of successful enforcement of trademark rights.
    • The decision therefore distinguishes between requiring a pre-existing formal declaration and determining whether the mark qualifies for well-known protection in the course of an opposition.

    Dissimilarity of Goods Does Not End the Inquiry

    • The Court further held that if Columbia succeeds in establishing that GHOSTBUSTERS meets the statutory threshold under Section 2(1)(zg), read with Sections 11(6) and 11(7), it can oppose the nearly identical GHOST BUSTER mark under Section 11(2) despite the dissimilarity of goods and difference in classes.
    • The Registrar, however, had focused almost entirely on the fact that Columbia’s registrations and activities were in entertainment, media and allied goods and services, whereas the rival application concerned Class 05 products.
    • The High Court criticised this approach, observing that the Registrar had taken the “wrong path” by failing to examine the well-known-mark issue.

    Columbia Had Produced Extensive Evidence of GHOSTBUSTERS Reputation

    • Columbia had placed substantial material before the Registrar in support of its claim.
    • The evidence referred to the release of the first GHOSTBUSTERS film in India in 1985, subsequent sequels, worldwide revenues, merchandising, availability on OTT platforms, extensive advertising and promotion, media coverage and longstanding Indian trademark registrations.
    • It also relied on registration of the mark in more than 50 countries and prior enforcement activity concerning the mark.
    • Crucially, however, the High Court did not itself finally rule that GHOSTBUSTERS is a well-known trademark in India. It held that the Registrar had failed to perform the required statutory examination and must now do so on remand.

    Alleged Bad-Faith Adoption of ‘GHOST BUSTER’ Must Also Be Examined

    • The High Court also found that Columbia’s allegation of bad-faith adoption had not been properly considered.
    • Columbia argued that the GHOSTBUSTERS mark was so well known that adoption of the nearly identical expression GHOST BUSTER could not be coincidental.
    • It also relied upon an earlier US proceeding involving Welch Materials Inc., described in the judgment as a sister concern of Respondent No.2. Welch had applied in the United States for GHOST BUSTER in June 2019. Columbia opposed the application; it was subsequently abandoned, and the USPTO passed an order refusing the application on 7 January 2020. The Indian GHOST BUSTER application was thereafter filed on 1 December 2020.
    • The High Court observed that the Registrar’s impugned order did not address this significant contention.

    Delhi HC Discusses Meaning of ‘Bad Faith’ in Trademark Applications

    • The Court referred to its earlier decisions in BPI Sports LLC v. Saurabh Gulati and Kia Wang v. Registrar of Trademarks while discussing bad-faith trademark adoption.
    • The judgment noted that bad faith may include cases where an applicant intentionally submits wrong or misleading information to the Trade Marks Office as well as situations where registration is sought with the intention of laying hands on a third party’s trademark.
    • The question whether the present GHOST BUSTER application actually amounted to bad-faith adoption was nevertheless left for the Registrar to decide after proper consideration.

    Delhi High Court Remands Matter to Registrar for Fresh Decision

    • After examining the Registrar’s order, Columbia’s opposition, evidence and written submissions, the High Court concluded that the matter required fresh consideration by the Registrar of Trade Marks.
    • The Registrar was specifically directed to examine all relevant contentions and supporting documents, particularly Columbia’s allegations concerning bad faith and its claim that GHOSTBUSTERS is entitled to protection as a well-known trademark under Section 11(2), tested against Sections 2(1)(zg), 11(6) and 11(7) of the Trade Marks Act.
    • Thus, Columbia Pictures obtained a significant procedural and legal victory, but the judgment should not be read as a final declaration that GHOSTBUSTERS is already a well-known trademark in India or as a final refusal of the GHOST BUSTER application. Those questions are to be reconsidered by the Registrar.

    Significance of the Judgment

    • The ruling is particularly important for owners of famous brands because it clarifies that cross-class protection under Section 11(2) is not dependent upon obtaining a formal well-known-mark declaration in advance.
    • A proprietor can raise well-known status as a ground in trademark opposition proceedings and produce evidence demonstrating that the earlier mark satisfies the statutory requirements. The Registrar must then adjudicate that claim instead of dismissing the opposition merely because the competing goods fall in different classes.
    • At the same time, the decision does not create an automatic cross-class monopoly for every reputed trademark. The proprietor must still establish, through evidence, that its mark meets the statutory threshold for well-known protection and satisfies the requirements of Section 11(2).

    Key Takeaway

    The Delhi High Court has clarified that an earlier trademark does not need a prior formal declaration as a “well-known trademark” before its proprietor can invoke Section 11(2) of the Trade Marks Act against an identical or similar mark covering dissimilar goods.

    What matters is whether the earlier mark can establish, on evidence, that it qualifies for such protection under the statutory criteria. In Columbia Pictures’ case, the Registrar’s failure to examine the claimed well-known character of GHOSTBUSTERS and the allegation of bad-faith adoption of GHOST BUSTER warranted reconsideration. The matter was therefore remanded for a fresh decision.

    Connected Matter

    Delhi HC Cancels Deceptively Similar ‘ROCKPAPA’ Trademark; Holds Prior User Has Superior Rights Over Registered Proprietor

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    Source: Delhi High Court

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