Judgment :- M. ANANTANURAYANAN, C.J. The appeal is instituted by the Collector of Central Excise, Madras, from the Judgment of Srinivasan, J. In W.P. No. 897 of 1962 allowing the petition for the issue of a writ of prohibition filed by the Proprietor of Messrs T.C. Nagalingappa and Company, Madras. The point involved is a very simple one and, since the relevant provisions have been dealt with somewhat extensively by the Learned Judge (Srinivasan, J.) in allowing the Writ, we think that it is sufficient if we focus attention upon the only issue that arises for our determination. 2.The facts are not in dispute. Eucalyptus oil is a pharmaceutical preparation, under the Indian Pharmacopoeia, and it is not the exclusive product of any individual proprietor. We have no doubt whatever that, if any person attempts to obtain a proprietary right in the words "Eucalyptus Oil" under the Law of Trade Marks, he will fail. But, persons like the writ petitioner (here respondent) do purchase eucalyptus oil in bulk, and market the product by repacking it in small and convenient bottles. The respondent has a licence under the Drugs Act for this purpose. As the Learned Judge points out, by Finance Act 2 of 1962 item 14(E) of the First Schedule to the Central Excise and Salt Act, 1944, was amended. The entry itself was amended, and a lengthy explanation was inserted following the entry. 3.The relevant extracts are to be found in the Judgment of the learned Judge, and it is sufficient for our present purpose to confine our attention to the Last part of the Explanation. That is to the following effect : ".... any other Mark such as symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between the medicine and some person having the right either as proprietor of otherwise to use the name or mark with or without any indication of identity of that person." * 4.The simple question in the present case is whether the labels or carton of the respondent, fall within the last part of the Explanation; the learned Judge has himself said that the earlier parts of the Explanation are necessarily applicable, and we need not traverse that ground again. If the last part of the Explanation also applies to the cartons, or labels of the respondent's bottles of eucalyptus oil, then it would inevitably follow that the levy sought to be effected by the Collector of Central Excise is justified and that no writ of prohibition can issue. 5.An initial possibility of confusion may be immediately eliminated. It might appear, at the first blush, that there is no question here of any label, design or signature, used on the bottles of the respondent, being associated with the respondent as 'distinctive' within the meaning of the Law of Trade Marks. It could be argued that Eucalyptus oil (Indian Pharmacopoeia) is a standard product common to the pharmaceutical trade, and not the exclusive property of any manufacturer whatever. Indeed, that has never been in dispute. Under those circumstances, it could be further argued that anyone merely bottling and selling a standard product, even if he used his own labels, is not setting up any trade connection between the product and himself for the simple reason that the product is common to the pharmaceutical business. But this argument overlooks two vital factors. Firstly, all these retail sellers of Eucalyptus oil like the present respondent, order their stocks in bulk from various distillers of the oil who are resident in Nilgiris. It may very well be that the oil, as distilled by one wholesale distiller, differs from the oil of another, in quality, consistency or medicinal properties. If one retailer is fortunate in obtaining his bulk supplies from a distiller whose oil has superior qualities, this retailer may very legitimately attempt, by means of labels affixed to his bottles to establish a trade connection between the eucalyptus oil which he is selling and his name, mark or design. Secondly, our attention has been drawn to the Central Excise Act and Rules, particularly to Section 2(f)(iii) of the Act itself. That defines 'manufacture', and it is sufficient for us to point out that the word includes "labelling or relabelling of containers intended for consumers and repacking from bulk packets to retail packets, or the adoption of any other treatment to render the product marketable to the consumers." * In other words, therefore, the present respondent must be classed as manufacturing eucalyptus oil, or, at any rate, his own sale product of the oil, within the meaning of that expression in the Central Excise Act. 6.The labels have been sufficiently described by the Learned Judge (Srinivasan J.), and it is not necessary for us to dilate much upon this. It is sufficient for us to point out that there is a picture of the dealer set in an oval frame, and that there is also his signature. Under these circumstances, there can be no doubt whatever that the label includes elements which are distinctive of the respondent, and which may very well come to be associated in the public mind with the product marketed by him. The learned Judge, on this vital aspect, observed as follows : "When the eucalyptus oil as produced by A, B or C is not different and can be no different from each other, does the use of the dealer's name on the label establish a connection such as contemplated in the explanation? The connection should be one in the course of trade. It is not an ordinary specious connection. What is obviously required is that when the name of the dealer is mentioned, it should get associated with the commodity. To expand the idea, does it mean that if eucalyptus oil is mentioned, the name of T.C. Nagalingappa and Co., would spring to the mind of a person as one closely associated with the marketing of eucalyptus oil. What is required is that a connection in the course of trade between the medicine and the dealer should be established. It is true that there is a connection on the label; but that does not appear to be sufficient to lead to the inference that that connection exists in the course of trade" * 7.We have set forth the entire reasoning of the learned Judge on this aspect as we desire to stress that it appears to contain a fallacy, and that we are unable to accept it. First of all, the learned Judge may not be strictly accurate, when he states that eucalyptus oil as produced by A, or B, or C cannot differ; as we pointed out, there are different wholesale distillers of the oil and apart from the process of distilling eucalyptus oil, even the quality of the oil yielded by different eucalyptus trees may differ with the soil, climate, altitude and growth. We see no reason whatever to assume that the oil manufactured in the Nilgiris by A, or B, or C cannot differ, from one person to another, as regards consistency, quality, or even medical effectiveness. For the same reason, the product of each retailer may be different, and obviously the use of the lable may very well establish, in the minds of the customers, a connection between that label, and the quality of the oil marketed by that dealer. We are unable to follow the learned Judge in his observations that though there is a connection, on the label, it did not "appear to be sufficient". The label attempts a very clear connection between the eucalyptus oil packed in the bottles of the respondent, and his photograph, signature and name. Certainly, that is a connection sought to be established in the course of trade, and we have reason whatever to assume that it could not have been established when the levy was made. 8.There is one possible argument, namely, that the levy was made so immediately after the respondent began affixing the labels to the bottles, that no connection in the course of trade could have possibly sprung up between the medicine and the marketed name and design. The learned Standing Counsel for the Central Government brings it to our notice that the marketing of these products by this respondent appears to have been in vogue from 1959, while the order of the Collector is dated 28th August, 1962. Clearly there has been a sufficient interval of time for such a connection to spring up. 9.We are, therefore, unable to see how the last part of the Explanation cannot be made applicable to the present case, on the contrary, it clearly and definitely applies. We are not here concerned with the decisions on Trade Mark Law, and we do not think that they need be referred to. But the test of distinctiveness, as laid down in several of these decisions, many of which have been reviewed by us in our recent judgment in L.P.A. No. 106 of 1964 and O.S.A. No. 49 of 1964, could be definitely held established on facts of the present character. But the test of distinctiveness, as laid down in several of these decisions, many of which have been reviewed by us in our recent judgment in L.P.A. No. 106 of 1964 and O.S.A. No. 49 of 1964, could be definitely held established on facts of the present character. Though words like 'Eucalyptus oil' or 'Nilgiri Thailam' (Tamil) which appear to be synonymous expressions are common to the trade, the other features of the carton or label, particularly the photograph, signature and name or initials of the respondent are distinctive, and appear to have been employed strictly within the course of the business. Accordingly, we allow the writ appeal, and discharge the Writ of prohibition. The parties will bear their own costs.