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TMI Blog1983 (3) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the meaning of the word 'Candy' includes 'Lozenges' and observing as follows :- "While admitting that the term 'boiled sweets' utilised in the tariff description does not cover 'Lozenges', notwithstanding that Lozenges form a distinct category, I hold that the term 'candy' which in international usage covers various other categories such as hard candy, coated candy, also includes sugar lozenges. The book 'Chemical analysis-Food and Food Products by M.B. Jacob' is relied on for this view." 5. The appellant preferred a revision and the Central Government while rejecting the same, passed an order dated 31-5-1975 holding that according to the American usage 'candy' includes 'lozenges'. They observed :- "Government of India..... observe that it is clear from the evidence on record that the term 'candy' is used in the U.S.A.', it includes amongst other things, a lozenge of the type under discussion in this case. The reference to the Oxford Dictionary in interpreting the term 'candy' does not help. It refers to toffees and the like, while 'candy' is a term specified in the relevant tariff item, besides the term 'toffee'. The specification laid down for lozenges by the India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chocolates in relation to the manufacture of which any process is ordinarily carried on with the aid of power, namely : - (1) Boiled sweets, toffees, caramels, candies, nuts (including almonds) and fruit kernels coated with sweetening aghot, and chewing gums. ... 10% adv. (2) Cocoa Powder. ... 10% adv. (3) Drinking chocolates, chocolates in the form of granules or powder. ... 10% adv. (4) Chocolates in the form of blocks, slabs, tablets, bars, pastilles or croquettes or in any other form, not otherwise specified whether or not containing nuts, fruit kernels or fruits. ... 10% adv. It will be noticed that out of various types of confectionery only those enumerated in sub-item 1 are excisable to duty. Learned Counsel for the respondents fairly and in our opinion rightly stated that he cannot fall back on the word 'confectionery' for, in view of the judgment of a Division Bench of this Court in M/s. Godrej Soaps Limited, Secunderabad v. The State of A.P., T.R.C. No. 77 of 1982, dated 31-12-1982 = 1983 (1) A.P.L. J., 23 (S.N.), the words 'namely' in the above tariff item have to be construed in a restrictive sens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Indian confectionery trade. 13. In the ISI booklet relating to 'Lozenges' it is stated as follows : "Lozenges (as different from medicated lozenges or others with special claims) are confections mainly made out of pulverized sugar or icing sugar with certain binding material and lubricants with the addition of suitable flavours and colours." According to the said booklet, the essential ingredients of 'lozenges' are- (i) Sugar :- Pulverized sugar obtained by powdering vaculim pan sugar-or refined sugar-or icing sugar, and (ii) Binding materials :- Edible gelatine, edible gums, liquid gluere and dextrins. Then follows a list of twenty one optional ingredients including peppermint oil. It is also stated that the lozenges shall be smooth and have good snap. 14. There are two ISI publications regarding 'candies'. One relates to protein chewing candy and the other to peanut candy. According to the former, the 'protein chewing candy' is a hard-boiled confection made from a mixture of sugar and edible protein flour or protein isolate, fat, milk solids and other ingredients. The essential ingredients are (i) Sugar, (ii) edible fats (margarine, butter or vegetable hydro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se with 'candy'. The 'candy' is a mixture of sugar and other ingredients and is manufactured by a process involving boiling. It is also hard. In fact, the Madras High Court in M/s. Parry Confectionary Limited, Madras v. The Government of India referred to the technical opinion given by the ISI on 11-10-1974 and the opinion of the Central Food Technological Institute, Mysore dated 6-2-1974 which also bring about the above differences prominently. 17. But then the learned Standing Counsel for the Central Government contended that in America, the word 'candy' is understood to include a 'lozenge', and that whatever may be the position according to Morris B. Jacob's book "The Chemistry and Technology of Food and Food Products" already referred to, the same American author has stated in another book 'Chemical Analysis of Foods and Food Products (3rd Ed.) (page 472) that 'candy' is divided into the following general classes :- "Hard candy, sugar creams (fondants), sugar lozenges, fudge, caramel including toffee, Marshmallow including whips, neugat jellies and gums, Bon Bons (coconut and plain), coated candies (chocolate and otherwise)." and that therefore 'candy' includes 'sugar l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled rule of construction that the words used in a law imposing a tax should be construed in the same way in which they are understood in the ordinary parlance in the area in which the law is in force." Therefore, the English usage was held to be inapplicable to the area in which the U.P. Sales Tax Act, 1948 was in force. Explaining what was meant by 'common parlance' or 'the consumer and trade understanding', the Supreme Court has, in the same case, observed that the test is this : "If a person goes to a hotel or restaurant and asks for some cooked food certainly he will not be served with biscuits in Uttar Pradesh." 21. In the leading case in the The King v. Planters Nut and Chocolate Company Limited (7) 1951 Canada Law Reports (Exchequer Court) P. 122, arising under the Canadian Excise Act a similar question arose as to whether salted peanuts and cashew nuts could be considered to be 'fruits' or 'vegetables'. Cameron, J. who delivered the judgment, posed the test as follows (P. 129) : "....would a house-holder, when asked to bring some fruits or vegetables for the evening meal bring home salted peanuts, cashew nuts or nuts of any sort ? The answer is obviously 'no'." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the decision of the Supreme Court in V.V. Iyer v. Jasjit Singh (8) A.I.R. 1973 S.C. 194. In our opinion, that decision is not applicable to the facts of this case. There the question was with regard to the scope and applicability of item 74 (vi) of Part V of Schedule I to the Imports (Control) Order, 1955 made under Section 3(1) of the Imports and Exports (Control) Act, 1947. It was held that when two alternative interpretations were possible, and when the Customs authorities adopted a reasonable view, the said finding could not be interfered with under Article 226 of the Constitution of India. But that is not the position here. Here the authorities have ignored the Indian usage and the ISI publications, and erroneously followed the American usage which was "inadmissible" vide Davies L.J. in Hardwicke Game Farm v. Suffolk etc. Association Limited (5). It is therefore a case where relevant considerations have been ignored and irrelevant considerations have been applied and there is therefore a clear error of law apparent on the face of the record. [vide Union of India v. Tarachand Gupta and Brothers (9) A.I.R. 1971 S.C. 1558]. 24. For all the above reasons, we are unable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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