KALAIVANI FABRICS Vs. COLLECTOR OF CUSTOMS APPEALS

JUDGEMENT

(1.) THE short question which arises for consideration in these four connected writ petitions is, whether blanched and roasted peanuts fall within the category of groundnut kernels under Heading 20 (i) of the II schedule - Export Tariff of the Customs Tariff Act of 1975.

(2.) M/s. Kalaivani Fabrics, M/s. Mala International and m/s. Siva Tex are sister-partnership concerns doing business in imports and exports. Under export Trade Control Circular No. 159/80, dated 1-11-1980 the Joint Chief controller of Imports and Exports allowed the export of blanched and roasted peanuts in bulk on first-come-first served basis within a limited ceiling subject to minimum export price of Rs. 9, 000/- per ton. The three sister concerns obtained export licence for 200 metric tons each, but, while the licences in favour of M/s. Kalaivani Fabrics (petitioner in W. P. No. 3059/84 and M/s. Siva Tex (Petitioner in W. P. No. 3062/84) were for 200 tons each, M/s. Mala International (Petitioner in W. P. Nos. 3060 and 3061 of 1984) got two licences for 100 M. T. each. These goods were exported from the Bombay Port. Even though this commodity viz. ,'blanched and roasted peanuts'in bulk was not subject to any export duty, the Customs Authorities demanded payment of export duty as groundnut kernel falling under Heading No. 20 (i) of Schedule n to the customs Tariff Act at Rs. 3, 000/- per metric ton. As the goods were of a perishable nature and as the shipments were to be effected within the specified period granted in the licence, the petitioners were constrained to pay the export duty under protest and without prejudice to claim refunds. Each of the three petitioners paid the export duty of Rs. 6 lakhs to the Bombay Customs. They filed applications before the Assistant Collector of Exports, Bombay for refund of the amounts. The claims were rejected and the appeals preferred to the Collector of customs (Appeals), Bombay, shared the same fate. Though further appeals lay to the Customs, Excise and gold Control (Appellate) Tribunal, in view of the fact that the said Tribunal had already held that blanched and roasted peanuts were liable to export duty as groundnut kernel, there was no purpose in preferring an appeal before the tribunal. Hence these writ petitions.

(3.) BEFORE dealing with this aspect it will be convenient to refer to the principles involved in the interpretation of the provisions of fiscal statutes. Indunlop India Ltd. v. Union of India 1977 AIR (SC) 597, 1983 (13) ELT 1566, 1976 (2) SCC 241, 1976 (2) SCR 98 at pages 605 and 606) the supreme Court observed thus: "it is well settled that in interpretting the meaning of words in various statutes the acceptation of a particular word by the trade and its popular meaning should commend itself to the authorities. . . It is clear that meanings given to Articles in a fiscal statute must be as people in trade and commerce conversant with the subject, generally treat and understand them in usual course. " * Inunion of Indiav. Gujarat Woollen Felt Mills[1977 (1)E. L. T. (J 24) = 1977 AIR (SC) 1488 at page 1509] the Supreme Court again pointed out: "the well known rule in interpretting items in statutes like the one we are concerned with, is that'resort should be had not to the scientific or technical meaning of such terms but to their popular meaning or the meaning attached to them by these dealing in them, that is to say, to their commercial senses. " * Inatul Glass Industries Pvt. Ltd. v. Collector of Central excise 1986 AIR (SC) 1730, 1986 Crlr (SC) 363, 1986 (8) ECR 513, 1986 (25) ELT 473, 1986 JT 41, 1986 (63) STC 322, 1986 (2) Scale 15, 1986 (3) SCC 480, 1986 (3) SCR 126, 1986 CRLR 363, 1986 Taxlr 2084, 1986 (10) ECC 1, 1986 SCC (Tax)620, 1986 (8) ETR 513 (SC) = 1986 AIR (SC) 1730, 1986 Crlr (SC) 363, 1986 (8) ECR 513, 1986 (25) ELT 473, 1986 JT 41, 1986 (63) STC 322, 1986 (2) Scale 15, 1986 (3) SCC 480, 1986 (3) SCR 126, 1986 CRLR 363, 1986 Taxlr 2084, 1986 (10) ECC 1, 1986 SCC (Tax) 620, 1986 (8) ETR 513 at page 1733] the learned Judges observed: "how is the product identified by the class or section of people dealing with or using the product" That is a test which is attracted whenever the statute does not contain any definition. Porritts and spencer (Asia) Ltd. v. State of Haryana, 1979 AIR (SC) 300, 1979 (1) SCR 545, 1979 (1) SCC 82, 1989 (25) ECR 443, 1983 (13) ELT 1607, 1978 (42) STC 433, 1978 uj 697, 1979 Taxlr 1692, 1979 UPTC 866, 1979 SCC (Tax) 38, 1980 Supp (SCC) 174 (SC) : 1979 AIR (SC) 300, 1979 (1) SCR 545, 1979 (1) SCC 82, 1989 (25) ECR 443, 1983 (13) ELT 1607, 1978 (42) STC 433, 1978 UJ 697, 1979 Taxlr 1692, 1979 UPTC 866, 1979 SCC (Tax) 38, 1980 Supp (SCC) 174 :1979 AIR (SC) 300, 1979 (1) SCR 545, 1979 (1) SCC 82, 1989 (25) ECR 443, 1983 (13) ELT 1607, 1978 (42) STC 433, 1978 uj 697, 1979 Taxlr 1692, 1979 UPTC 866, 1979 SCC (Tax) 38, 1980 Supp (SCC) 174 ]. It is generally by its functional character that a product is so identified. Incommr. of Sales Tax, U. P. v. Macneill and Borry Ltd. , Kanpur 1985 2 SCAME 1093 : 1986 AIR (SC) 386, 1986 (1) CCC 254, 1986 (7) ECR 266, 1986 (23) ELT 5, 1986 (61) STC 76, 1985 (2) Scale 1093, 1986 (1) SCC 23, 1985 (S3) SCR 739, 1986 (1)UJ 142, 1985 (2) SCALE 1093, 1986 Taxlr 2249, 1986 ALJ 252 this Court expressed the view that ammonia paper and ferro paper, used for obtaining prints and sketches of site plans could not be described as paper as that word was used in common parlance. On the same basis the Orissa High Court held instate of orissav. Gestetner Duplicators (P) Ltd. 1974 (33) STC 333, 1977 AIR (SC) 32, 1974 Taxlr 2051 : 1974 (33) STC 333, 1977 AIR (SC) 32, 1974 Taxlr 2051 that stencil paper could not be classified as paper for the purposes of the Orissa sales Tax Act. It is a matter of common experience that the identity of an article is associated with its primary function. It is only logical that it should be so. When a consumer buys an article, he buys it because it performs a specific function for him. There is a mental association in the mind of the consumer on the article and the need it supplies in his life. It is the functional character of the article which identifies it in his mind. In the case of a glass mirror, the consumer recalls primarily the reflective function of the Article more than anything else. It is a mirror, an article which reflects images. It is referred to as a glass mirror only because the word glass is descriptive of the mirror in that glass has been used as a medium for manufacturing the mirror. The basic or fundamental character of the article lies in its being a mirror. It was observed by this Court indelhi Cloth and general Mills Co. Ltd. v. State of Rajasthan, 1980 AIR (SC) 1552, 1981 ECR 51, 1980 (6) ELT 383, 1980 (46) STC 256, 1980 (4) SCC 71, 1980 (3) SCR 1109, 1980 taxlr 1756, 1980 SCC (Tax) 348 : 1980 AIR (SC) 1552, 1981 ECR 51, 1980 (6) ELT 383, 1980 (46) STC 256, 1980 (4) SCC 71, 1980 (3) SCR 1109, 1980 Taxlr 1756, 1980 SCC (Tax) 348 ) which was a case under the Sales Tax Law:" * In determining the meaning or connotation of words and expressions describing an article or commodity the turnover of which is taxed in a sales tax enactment, if there is one principle fairly well-settled it is that the words or expressions must be construed in the sense in which they are understood in the trade, by the dealer and the consumer. It is they who are concerned with it, and it is the sense in which they understand it that constitutes the definitive index of the legislative intention when the statute was enacted. "that was also the view expressed ingeep Flashlight industries Ltd. v. Union of India- 1985 (22) ELT 3, 1984 (2) Scale 380, 2002 (9)SCC 545 , 1986 (6) ECR 430 (SC ).' In a very recent decision inasian Paints India Lid. v. Collector of Central Excise- 1988 AIR (SC) 1087, 1988 Crlr (SC) 259, 1988 (16)ECR 119, 1988 (35) ELT 3, 1988 (2) JT 8, 1988 (70) STC 38, 1988 (1) Scale 628, 1988 (2) SCC 470, 1988 (3) SCR 339, 1988 (2) UJ 104, 1988 CRLR 259, 1988 (16)ECC 172 (S. C.) at page 5 the Supreme Court reiterated the principle thus:" * It is well settled that the commercial meaning has to be given to the expression in Tariff items. Where decision (definition) of a word has not been given, it must be construed in its popular sense. Popular sense means that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it. See -C. I. R. Andhra Pradeshv. M/s. Taj mahal Hotel, Secunderabad (1972i SCR 168 ). This Court observed inindo international Industriesv. Commissioner of Sales Tax, U. P. 1981 (3) SCR 2944)that in interpreting items in statutes like the Excise Act or Sates Tax Acts, whose primary object was to raise revenue and for which purpose to classify diverse products, articles and substances, report should be had not to scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say the meaning attached to them by those dealing in them.