MCDOWELL AND CO LTD Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) The short question that is involved in this petition is as to whether whisky, imported by the petitioners is a "concentrate whisky" or otherwise.

(2.) The petitioners say that amongst the various brands of whiskies manufactured by the 1st petitioners are the brands known as "No. 1 McDowells Whisky", "diplomat Whisky" and "Gold Riband Whisky", all having a strength of 75 degrees proof. The said whiskies are made necessarily from alcohol distilled in the factory of the 1st petitioners in India. In the manufacture of the whiskies, it is usual to blend different kinds of whiskies in order to impart the necessary flavour and taste to whiskies and accordingly the 1st petitioners have been blending alcohols distilled by them at their factory with overstrength and overproof. Varieties of scotch whisky made from pure malt and having a high bowquet imported by them from Scotland in the United Kingdom from a supplying firm called Charies Makinlay & Co. Ltd. The overstrength and overproof whisky imported by the 1st petitioners from the said suppliers has always been "scotch malt whisky" of a strength of 105 degrees proof or more.

(3.) Prior to 1st April 1972, the 1st petitioners imported the said overstrength and overproof malt scotch whisky from time to time and the same was described in the invoices as well as in the bills of entry filed in respect of the importations as "scotch whisky". Under the Import Trade Control Policy of the Government of India for the period 1.4.1972 to 31.3.1973 import licences were available for what was described therein as "concentrate whisky". The 1st petitioners secured a licence in that behalf but they wanted to be sure in that what they were importing was "concentrate whisky" as per the said licence. But there was no such entry as "concentrate whisky" and the only product to which the description could be applied was "whisky at overproof strength" similar to what they had been importing, and accordingly they sought advice from the said suppliers. The suppliers informed the petitioners as follows : "Malt whisky comes off the still at about 30 degrees overproof and is reduced to 11 degrees overproof for filling into casks, at which strength it is matured. When we receive malt whisky after maturation, the whisky has lost some of its strength and is then between 5 degrees to 7 degrees overproof, which is what we term 'Matural Strength' and it is at this strength that we normally ship to you bulk supplies of four years old Vatted Malt".