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TMI Blog1983 (7) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excises and Salt Act, 1944, in respect of ultramarine blue according to the rate of duty mentioned against the goods specified in Item No. 14-I(5) of the First Schedule to the said Act. 2. On 20th August, 1971, a learned Judge of the City Civil Court, Ahmedabad, had decreed a civil suit brought by M/s. C.M.C. India, inter alia, for declaring that the product ultramarine blue manufactured by the said plaintiff was not a pigment to common people, businessmen and consumers, and, therefore, the plaintiff's said product was not excisable under Item No. 14-I(5) of the First Schedule to the Central Excises and Salt Act, 1944. The learned Civil Judge also granted consequential relief by way of permanent injunction against the Union of India and others defendants of the suit. We understand that the High Court at Gujarat had subsequently dismissed the appeal preferred by the Union of India and others against the said decision of the learned Civil Judge, City Civil Court, Ahmedabad. The said High Court also reversed the decision of the trial court in another suit for similar reliefs brought by Jaynal Tarachand and others, and decreed the suit. The learned Judges of the Gujarat H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might be an inorganic pigment because in popular sense ultramarine blue is always considered as a separate product. In popular mind, according to Mr. Bhattacharyya, ultramarine blue is not associated with pigments, colours and paints. Mr. Bhattacharyya has further submitted that the onus was upon the Central Excise authorities to prove that the petitioner's product was liable to excise duty under Item No. 14-I(5) of the First Schedule to the said Act. The last submission of Mr. Bhattacharyya is that the levy of excise duty upon the petitioner's product being without any lawful authority and ultra vires, the respondents are bound to refund all excise duties already collected from the petitioner. 4A. Before I consider the merits of the petitioner's contention that "ultramarine blue" manufactured by it is not a "pigment", "colour" or "paint" within the meaning of Item No. 14-I(5)of the First Schedule to the Central Excises and Salt Act, 1944, I may set out the said provision as it stood at the relevant time. It may be noted that the said item had been subsequently several times amended (vide Act 16 of 1972, Act 21 of 1973, Act 29 of 1977 and Act 21 of 1979). THE FIRST SCHEDULE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he word "coal" included "charcoal" by applying the following test : "What would be the meaning which people dealing with coal and the consumers purchasing it as a fuel have come to associate with that word." While rejecting the contention that power-loom cloth was mill cloth, the Supreme Court in the case of Commissioner of Sales Tax, U.P. v. Ladha Singh - AIR 1971 S.C. 2221, held that the question must be viewed from the angle both of a merchant dealing in that commodity and a consumer wanting to purchase it. See also the case of Commissioner of Sales Tax v. S.N. Brothers - AIR 1973 S.C. 78." II. Everyday use of a product : The Court has also ascertained popular and commercial sense of a term by looking into everyday use of a product bearing the said term or name. The Supreme Court in the case of State of U.P. v. Indian Hume Pipe Co. - AIR 1977 S.C. 1132 interpreted the expression "sanitary fittings" by referring to their everyday use. The Court held that hume pipes were not sanitary fittings because there was no evidence that they were meant for use in lavatories, urinals and bath-rooms. At the same time, the Court made it clear that if at any time, the materials produced be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of ultramarine blue were sulphur, soda ash, pitch, china lay and silica. Thus the petitioner has not questioned the correctness of the said chemical test and in fact has not disputed that the physical properties of ultramarine blue constitute the same as an inorganic pigment in its technical or scientific sense. But the petitioner's main contention is that according to the popular view, the product ultramarine blue is understood as a separate product distinct from pigments, colours and paints. In popular mind ultramarine blue is not associated with pigments, colours and paints. The petitioner in paragraph 2 of its writ petition has merely alleged that its product is mainly used as temporary whitening agent for heightening the whiteness of things particularly cotton textiles. It is significant that even the petitioner has not averred that the sole or only use of its product is for whitening clothes. Even according to the petitioner the alleged principal use was as was herman's blue. I would later on point out that the respondents have proved convincingly that whitening or imparting brightness to cotton textiles is only one of the many uses of their said product ultramarine blue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the Central Excises and Salt Act, 1944, in the manner suggested by the learned Advocate for the Union of India. While deciding the case, neither the trial Judge nor the Division Bench of the Gujarat High Court had any opportunity of considering the weight of the authorities which have been cited before me on behalf of the respondents. The learned Judges of the Gujarat High Court incidentally had declined to accept as authoritative publication of the Indian Standards Institution on the ground that the attention of the plaintiff's witnesses was not drawn to the same and the defendants did not examine anyone from the Indian Standards Institution to explain the purpose for which the booklet had been published and to what extent the manufacturers were expected to follow. 10. With respect I fail to see the cogency of the reasons for rejecting the aforesaid publication of the Indian Standards Institution. The Indian Standards Institution (Certification Marks) Act, 1952, was enacted by the Parliament to provide for the standardisation and marking of goods. The expression "Indian Standard" according to Section 2 (c) of the Act, means "the standard (including any tentative or provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smetics. Ultramarine is especially useful where fastness to lime or alkali is essential but unsuitable where fastness to acids is required. In these respects its utility is the reverse of that of C.I. Pigments Blue 27." 13. The respondents have also relied upon the standard specifications for ultramarine blue contained in A.S.T.M. standards published by the American Society for Testing of Materials which describes ultramarine blue as pigment suitable for use in paints, enamels, lacquers and similar products. The said pigment could be in the dry form or as a paste in oil. In Kingzett's Chemical Encyclopaedia, 9th Edn., ultramarine blue has been described as a blue pigment. Dictionary of Commercial Chemicals by Snell also states ultramarine blue as an insoluble bright blue pigment of varying composition. The respondents have also relied upon Riegal's Industrial Chemistry by James A. Kent, Outlines of Paint Technology by Morgans Glossary of Terms used in the Paint, Varnish and Allied Trades Outlines of Paint Technology by Noel Heaten and various other technical books and treatises on paint technology which describe ultramarine blue as a pigment. In paragraph 15 of their affidavit-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said dictionary mentions the following uses of ultramarine blue : "Colorant for machinery and toy enamels; white baking enamels; printing inks, rubber products, soaps and laundry blues, cosmetics; textile printing". "Note : Used in very low percentage to intensify whiteness of white enamels, rubber compounds, laundered clothing, etc., by off setting yellowish understones ; gives a 'blue' rather than a 'yellow' white." According to the same dictionary, the expression "colorant" means "any substance that imparts colour to any other material or mixture". "Colorants are either dyes or pigments" (vide page 267 of the book). I may now also refer to the definition of "pigment" given at page 817 of the said Condensed Chemical Dictionary : "Any substance, usually in the form of a dry powder, that imparts colour to another substance or mixture. Most pigments are insoluble in inorganic solvents and water.........To qualify as a pigment, a material must have positive colorant value." 16. The definition given in the said book excludes certain substances including whiting. Mr. Bhattacharyya is not correct in contending that ultramarine blue is whiting because according to the said dictionary ..... 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