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TMI Blog1999 (5) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... reon which is specified in the said First Schedule, as is in excess of the amount calculated at the rate of 35 per cent ad valorem; and (b) the whole of the additional duty leviable thereon under Section 3 of the said Customs Tariff Act. In the Table to the said notification against Serial No. 20 is mentioned Automatic Bottle Labelling Machine." 2. The writ petitioner is a company registered and incorporated under the Companies Act. It imported a fully automatic bottle labelling machine. The petitioner contend that the said machine is classifiable under Section IV of the First Schedule appended to the Customs Tariff Act, 1975, and, thus eligible for exemption from payment of customs duty in terms of the aforementioned notification. 3. It is not disputed that under the said notification exemption from customs duty have been granted to the goods specified in Column 2 of the Table annexed thereto when imported into India for use in processing/packaging of food articles. The petitioner has contended that beer is a food article on the following grounds :- (a) Beer falls within the purview of the Ministry of Food Processing Industries of the Government of India. The said Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teration Act, 1954. The said Act defines food as meaning any article used as food or drink for human consumption other than drugs and Water Copy of the relevant extract from the said Act is annexed hereto and marked G . (f) Beer is food and supplements and functions of the human body. Beer has rich value as a diuretic (to improve excretion of urine), as a high caloric drink to increase body weight, as a soothing drink for constipation as well as for de-hydration. Beer is also consumed as an energy replenisher in sports. Beer has a stimulating effect on the nervous system for muscle contraction, blood coagulation, bone and tooth metabolism, as electrolytes for enzyme activation and for hormone control. Beer is rich in vitamins and is a source of energy. In this connection copy of the paper entitled Beer as Food prepared by Professor Anton Piendl of the Institute of Brewing Technology and Micro-Biology,, Technical University of Munich, West Germany, is annexed hereto and marked H . Also included in Annexure H hereto is an extract from the publication Breau-industrie which also sets out the physiological value of Beer. (g) Beer has been specified under Group Food Products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India) Ltd. v. Collector of Central Excise reported in 1983 (12) E.L.T. 526. 6. Mr. Bajoria the learned Counsel appearing with Mr. Khaitan on the other hand submitted that the Heading of the Schedule appended to the Customs Tariff Act is not very relevant as the same inter alia relates to the prepared Food Stuff, Beverages, Spirits and Vinegar, Tobacco and Manufactured Tobacco substitutes. If according to the learned Counsel, Section 4 is taken in aid of in construction of the notification in question it must be held that under the said heading beverages, spirits and vinegar would also come within the purview of definition of food article. In this connection it has been contended that under the said Section , even food which is being consumed by the animals has been included. The learned Counsel would urge that the question will have to be considered from a broader angle and, thus, whatever can be consumed by a human being would be `food and in that view of the matter beverages being consumable articles being both alcoholic and non-alcoholic, the same would also come within the purview thereof. 7. Our attention has further been drawn to ground No. 7 of the Memorandum of Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated for another. His Lordship referred to Hinde v. Allmond reported in 87 LJKB 893 wherein tea has not been held to be the food but the same had been held to be food in Sainsbury v. Saunders reported in 88 LJKB 441. 12. It is a trite law that heading of a provision as regards classification of goods which has not been made on scientific basis does not control the meaning of such goods. 13. In Municipal Corporation for the City of Thane Ors. v. Asmaco Plastic Industries Ors. reported in 1999 (1) SCC 372, it was held :- In Entry 32(c) of the Rules framed under the Corporation Act or under Entry 53(c) of the Octroi Schedule framed under the Municipalities Act, we are concerned with the expression `plastic, plastic goods and plastic powder . We may contradistinguish this entry with a relatable entry in the Customs Tariff Act, 1975 where the goods are more scientifically categorised. Under Chapter 39 of the Customs Tariff Act, the expression plastic and articles thereof is used to bring within that heading the primary forms, polymers of ethylene, polymers of propylene or of other olefins, polymers of styrene, vinyl acetate or other vinyl esters . Polymers of vinyl chlo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved :- However, on the express language of Section 129 Explanation (a), it must be held that no two views are possible but only one view is possible, namely, that the connotation of the term `common compound is entirely different and wider in nature as compared to the connotation of compound as defined in Section 2, sub-section (5) as has earlier. 18. The word `food articles must be understood as in common parlance. Technical meaning of the word food or its dictionary meaning may not be of much relevance. However, the dictionary meaning of the word `food also varies. Food is also defined differently in different statute. 19. There cannot, however, be any doubt whatsoever that while interpreting a taxing statute, the intention of the legislature must be given due importance. An exemption notification must, thus, also be construed keeping in view the text and context thereof. 20. In State of Bihar Ors. v. Steel City Beverages Ltd. reported in 1999 (1) SCC 10, the Apex Court referring to various decisions held that the meaning of the word `plant for the purpose of grant of concession/exemption/rebate from payment of Sales Tax should be considered in the context o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the present case. It is clear that the notification applies to those goods which are specifically provided for food industries but as indicated hereinbefore the said heading thereof in this case will have no relevance as if it is taken into consideration the same would result in absurdity inasmuch as thereby even `tobacco would come within the purview of definition of `food which by no stretch of imagination can be said to be a food or food article. See Municipal Corporation for the City of Thane Ors. v. Asmaco Plastic Industries Ors. reported in 1999 (1) SCC 372 = AIR 1998 SC 2440. 25. The learned Trial Judge, therefore, in the considered opinion of this Court committed an error in referring to several Acts, encyclopaedias and dictionaries in holding that the Beer is food. 26. In construing the words `food or `food articles reference to the Agricultural and Processed Food Products Exports Development Authority Act, 1985 or the Notifications issued thereunder was also wholly irrelevant. The said Act was enacted for the development and promotion of exports of certain agricultural and processed food products whereas; Customs Tariff Act is a taxing statute. Both the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od in Encyclopaedia Britannica or Brewers Digest but the same, in our considered view, is of no moment keeping in view the fact that the makers of the Constitution thought that intoxicating drinks, which Beer is, would not be in the interest of improvements of public health and in fact the same would be injurious to health. 30. It is also incorrect to contend that food article if literally construed, would include Beer. The same would be beyond the perception of common men. 31. Let us now consider some of the decisions referred to by the learned Trial Judge. 32. In Pyarali K. Tejani v. Mahadeo Ramchandra Dange Ors. reported in AIR 1974 SC 228, the Apex Court was considering the provisions of Prevention of Food Adulteration Act, 1954 where the word `food has been defined very widely as covering any article used as food and every component which enters into it and even flavouring matter and condiments. It is in the context of definition of food as contained in Section 2(v) of the said Act the observation to the following effect was made by the Apex Court :- It is commonplace knowledge that the word `food is a very general term and applies to all that is eaten by men for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India, 1990 (4) SCC 207 : (AIR 1990 SC 1782), Commissioner of Income-tax v. Sun Engineering Co. Ltd. reported in AIR 1993 SC 43 (1993 Tax. L.R. 58), Regional Manager v. Pawan Kumar Dubey reported in AIR 1976 SC 1766, and Municipal Corporation of Delhi v. Gurnam Kaur reported in 1988 (1) SCC 101 (AIR 1989 SC 38). It is also a settled law that a decision is not an authority on a point which was not argued. See Mittal Engineering Works (P) Ltd. v. Collector of Central Excise reported in 1997 (1) SCC 203." 38. It has been pointed out hereinbefore that even meaning of `food has been defined differently in different dictionaries and, thus, no absolute reliance can be placed thereupon. The meaning of food which ordinary human being would ascribe should be accepted. The question as to whether Beer is a food or not should be construed in the context as to how the majority of the people of India would consider the same. Alcoholic Beverages are not available even in all the Restaurants. For dealing in Alcoholic Beverage, a licence under a special Act is necessary. If `Beer is considered to be `food other alcoholic beverage has also to be ascribed the same meaning, which would lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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