CADBURY FRY INDIA LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a Writ Petition under Article 226 of the Constitution of India, for a writ of certiorari, to quash and set aside certain orders being (1) order dated 1st September, 1971 by the Assistant Collector of Central Excise, Exhibit 'D' to the Petition, (2) order dated 22nd November 1973 by the Appellate Collector of Central Excise, Exhibit 'F' to the Petition and (3) order dated 9th July 1975 passed by the Joint Secretary, Government of India, Exhibit 'J' to the Petition, in its revisional jurisdiction, and also a writ of mandamus, directing the Respondents to withdraw and/or cancel the said orders and to refund to the Petitioners an amount of Rs. 7,07,145.48P., and any other amount of excise duty collected on the said goods.

(2.) The question that arises in this Petition is whether, unflavoured and unblended powder obtained after processing and pulverising cocoa bean was liable of excise under Item I-A viz. 'Cocoa powder' of the Schedule to the Central Excises and Salt Act, 1944. The contention of the Petitioners being that Cocoa powder in item I-A which is liable for excise is flavoured and blended cocoa powder known to the trade as such and unblended and unflavoured powder of cocoa bean which is sought to be made liable for the payment of excise duty under Item I-A is not known to the trade as cocoa powder and is not in excisable item and was not therefore liable for excise duty. On the other hand, it is contended by the Respondents that since the said unblended or unflavoured cocoa powder was marketable product, it being imported into India and hence sold in India it was liable to excise duty under the said Item I-A.

(3.) A few relevant facts to appreciate the said rival contentions are as follows :-