2005 (3) TMI 828 - HC - Central Excise

Summary

Issues Involved:
1. Definition and comprehensiveness of 'Kerosene' under the Kerala Kerosene Control Order.
2. Necessity of conducting the flame test to establish 'genuine kerosene'.
3. Applicability of the decision in Kunhimoideenkutty v. State of Kerala regarding evidence of flame height in prosecutions under the Kerosene Control Order.

Issue-wise Detailed Analysis:

1. Definition and Comprehensiveness of 'Kerosene':
The primary issue was whether the definition of 'kerosene' in Clause 2(f) of the Kerala Kerosene Control Order, 1968, is comprehensive and exhaustive. The definition in Clause 2(f) states that 'kerosene' shall have the meaning assigned to it in item No. 7 of the First Schedule to the Central Excises and Salt Act, 1944, excluding Aviation Turbine Fuel. The court examined the definition in item No. 7, which includes a technical specification requiring a flame height of 18 mm or more. The court concluded that the definition is not inclusive or explanatory but rather exhaustive and exclusive, meaning that for a liquid to be considered kerosene under the Order, it must meet the specified flame height requirement.

2. Necessity of Conducting the Flame Test:
The court addressed whether the prosecution must fail if the flame test was not conducted, despite the Chemical Examiner's report identifying the seized liquid as 'genuine kerosene'. The court emphasized that the technical definition in the Order requires the flame height test to be conducted. The court referred to the earlier decision in Kunhimoideenkutty v. State of Kerala, which insisted on the necessity of scientific analysis to determine the flame height. The court reaffirmed that without evidence of the flame height meeting the specified standard, the liquid cannot be legally recognized as kerosene under the Order.

3. Applicability of Kunhimoideenkutty v. State of Kerala:
The court examined whether the decision in Kunhimoideenkutty v. State of Kerala, which mandates evidence of flame height, should be followed. The court upheld the principle of 'stare decisis', emphasizing that the law should be fixed, definite, and known. The court noted that the decision in Kunhimoideenkutty had been followed for nearly 17 years without any legislative amendment to the definition of 'kerosene'. The court concluded that the interpretation given in Kunhimoideenkutty's case is reasonable and should be adhered to, as it has been consistently applied and no appeal was filed against it by the State.

Conclusion:
The court held that the definition of 'kerosene' under the Kerala Kerosene Control Order is exhaustive and requires compliance with the technical specification of a flame height of 18 mm or more. The prosecution must provide evidence of this flame height to secure a conviction under the Order. The court reaffirmed the decision in Kunhimoideenkutty v. State of Kerala, emphasizing the importance of adhering to established legal interpretations unless amended by competent authority. Consequently, the appeals were allowed, and the appellants were acquitted due to the lack of evidence proving that the seized liquid met the required flame height standard.