Oswal
Agro Mills Ltd. Vs. Collector of Central Excise & Ors [1993] INSC 238 (27 April 1993)
Ramaswamy,
K. Ramaswamy, K. Sahai, R.M. (J)
CITATION:
1993 AIR 2288 1993 SCR (3) 378 1993 SCC Supl. (3) 716 JT 1993 (3) 260 1993
SCALE (2)660
ACT:
%
Central Exercises and Salt Act, 1944:
First
Schedule, Item 15-Soap-Toilet Soap-"Household" and "other
sorts"-Interpretation of "Toilet Soap"-Whether household soap
within the meaning of Tariff item 15 (1).
Interpretation
of statutes;
In
interpreting a provision nothing to be added or deleted- Object of legislature
to be gathered from the language used.
HEAD NOTE:
The
appellant-Mills claimed that the "toilet soaps" produced by them were
bath soaps failing under tariff item 15 (1) of the First Schedule (Household) to
the Central Excises and Salt Act, 1944, but the Assistant Collector classified
the same as "other sorts" under tariff item 15(2) of the schedule
attracting higher levy of excise duty. On appeal, the Collector held that they
fell under tariff item No. 15 (1) "household".
On
second appeal, the Tribunal reversed the appellate order, against which the
appellant-Mills preferred the instant appeals.
The
appellants contended that in 1954 toilet soap was treated as an independent
tariff sub-item and household and laundry soaps were treated as separate entity
and separately subjected to varied rates of tariff-, that on amendment in 1964
toilet soap was omitted as a separate entity and brought toilet soap as part of
genus, namely, soap "household", as toilet soap has always been a
household soap.
The
respondents contended that statute always kept distinction between soap
"household and laundry" and "other sorts" and that toilet
soap was kept in the packet of other sorts; that household and laundry soaps
were being used for cleaning household articles and utensils and washing the
clothes, while toilet soaps are for bathing purpose. The latter, composed of
diverse varieties based on personal liking and taste, are being used; and that
they are commercially known as other sorts but not household.
379
Allowing the appeals, and remitting the matter to primary authority, this
Court,
HELD:1.1
The provisions of the Tariff do not determine the relevant entity of the goods.
They deal whether and under what entry, the identified entity attracts duty.
The goods are to be identified and then to find the appropriate heading,
sub-heading under which the identified goods/prod- ucts would be classified. To
find the appropriate classification the description employed in the tariff nomenclature
should he appreciated having regard to the terms of the headings read with the
relevant provisions or statutory rules or interpretation put up thereon. For exigibility
to excise duty the entity must he specified in positive terms under a particular
tariff entry. In its absence it has to be deducted from a proper construction
of the tariff entry. There is neither intendment nor equity in a taxing
statute. Nothing is implied. It should be interpreted and construed as per the
words the legislature has chosen to employ in the Act or Rules. There is no
room for assumptions or presumptions.The object of Parliament has to be
gathered from the language used in the statute. (383- H, 384-A-B)
1.2"toilet soap" being of everyday household use for the purpose of
the bath and having removed its sperate identity which it enjoyed preceding
amendment and having been not specifically included in'other sorts', it took
its shelter In commercial parlance under household'. If any body goes to the
market and asked for toilet soap, he must asked any for household bathing
purpose and not for industrial or other sorts. Even the people dealing with it
would supply it only for household purpose. It may be true that household
consists of soap used for cleaning utensils, laundry used for cleaning soiled
clothes and soap toilet is used for bathing but house-hold is compendiously
used, toilet soap is used only by the family for bathing purpose.
Individual
preference or choice or taste of a particular soap for bath is not relevant.
The soap "toilet" would, therefore, fall within the meaning the word
of "household" in sub-item (1) of item 15 of the Schedule. (384-B-C,)
Ajoy kumar Bannerjee and-Ors. v. Union
of India and Ors., [1984] 3 SCC 127; and Urkal
Contractors and Joinery Pvt. Ltd. and Ors. v. State of Orissa and Ors.: [1987]
3 SCC 279, distinguished Manmohan Das v- Vishnu Das, AIR 1967 SC 643; Ramavatar
Budhaipasad etc. v. Asstt. Sales Tax Officer, Akola and Anr, [1962] 1 SCC 279; Motipur Zamindari Co. (Pvt. )
Ltd. v. State of Bihar: 380 [1962] Supp. 1 SCR 498; State
of West Bengal and Ors. v. Washi Ahmed etc.,
[1977] 3 SCR 149; Porritts & Spencer (Asia)
Ltd. v. State of Haryana, [1979] 1 SCR 545; Indo
International Industries v. Commissioner of Sales Tax, U.P., [1981] 3 SCR 294
at 297 C; P.A. Chillai Chidambara Nadar v. Addl. Appellate Asstt. Commissioner,
Madurai and Anr., [1985] 4 SCC 30; Khandelwal
Metal Works v. Union of India, [1985] Supp. 1 SCR 750 at 774 B-C; Shri-Bharuch Coconut
Trading Co. and Ors. v. Municipal Corporation
of the city of Ahmedabad and Ors., [1992] Supp. 1 SCC 298; Hansraj Gordhan Das
v. H.H. Dave Assti. Collector of Central Excise & Customs and Ors., [1969]
2 SCR 253; Dunlop India Ltd. v. Union
of India & Ors. [1976] 2 SCR 98; Anant B. Timbodia v. Union of India,
[1992] 1 Scale 527; Superintendent of Central Excise, Surat v. Vac Metal
Corporation Ltd., AIR 1986 SC 1167; Spaco Carburettors (India) Ltd. v.
Collector of Customs, Bombay, (1988) 3 SCR 37; Shashikant Laxman Kale and Anr.
v. Union of India and Anr., [1990] 4 SCC 366 at 376 Para 17; Mitra Prakashan
Pvt. Ltd. v. Collector of Customs, (1991) 51 E.L.T. 115 para 15; Desh Bandhu
Gupta and Ors. v. Delhi Stock Exchange: [1979] 3 SCR 373;
J.K. Coton Spinning and Weaving Mills Ltd. and Anr. v. Union of India and Ors.,
[1987] Supp. SCC 350; Dovack Systems Pvt. Ltd. etc. v. Union of India & Ors. etc.[1988] 2 SCR %2 at 1000 F to
H and State of Madhya Pradesh v. M/s G. S. Dall and Flour Mills:, [1992] Supp.
1 SCC 150 at 153 para 18, referred to, Craises on Statute Law (7th Edition) at
Page 164, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2702 of 1984.
From
the Judgment and Order dated 20.6.1984 of the Customs Excise and Gold (Control)
Appellate Tribunal, New
Delhi in Appeal No.
ED (SB) 2714/83 C.
Harish
N. Salve, Ashok H. Desai, Miss Meenakshi Grover, Rajiv Dutta, Ravinder Narain,
Miss Amrit and Miss Punita Singh for JBD & Co. for the Appellants.
A.K. Ganguli,
k.Swami, Dilip Tandon and P. Parameshwaran for the Respondents.
381
The Judgment of the Court was delivered by K. RAMASWAMY. J.: Common questions
of law arose for decision in these 8 appeals need disposal by this judgment.
The
question relates to classification of "toilet soap" in Excise item 15
of the First Schedule to the Central Excise and Salt Act 1 of 1944 as amended
in 1964 for short the Act'. In addition, in C.A. Nos. 81 3/86, 3632-34/88 and 1
102/89 sequal to its finding, they claim refund of excess excise duty. The
facts in C.A. Nos. 2702/84 and 2785/84 are sufficient for disposal. The
appellants laid before Assiatant Collect or classification list claiming
"toilet soaps" Kalpa and Oasis, in other appeals Jai, O.K. Moti, Rain
drop, Gold and Ria as bath soaps under Tariff item 15 (1) of the First Schedule
(Household). By notice dated August 31, 1982,
the Assistant Collector called upon the appellants to show cause as to why they
cannot be classified under tariff item 15(2) other sorts and to levy excise
duty at 15 per cent ad valorem (as then stood). The appellants after filing their
reply thereto and having had personal hearing, by proceeding dated November 27, 1982, the Asstt. Collector classified
toilet soaps as "other sorts" under tariff item 15(2) of the
Schedule. On appeal the Collector by Order dated January 21, 1983 classified them under tariff item No. 15(1)
"household" On second appeal, the CEGAT by its order dated June 20, 1984 reversed the appellate order and
upheld the Asstt. Collector's order, Same is the case with regard to all other
appeals except resultant claim for refund. In 1954 tariff item No. 15A was
introduced in the First Schedule of the Act thus:
"15(A)
'Soap' all varieties of the product known commercially as soap-
1.
Soap, in or in relation to the manufacture of which any process is ordinarily
carried on with the aid of power or of steam for heating:- (1) Soap, household
and laundry:- (a) Plain bars of not less than Rupees one pound in weight fives
& annas four per cwt.
(b) ther
sorts Rupees six & annas 382 two per cwt.
(2)
Soap toilet Rupees fourteen per cwt.
(3)
Soap, other then household Rupees and laundry or toilet. fourteen per cwt.
This
entry as amended in 1964 reads thus "
15
'Soap' means all varieties of product known commercially as soap-:
(1)Soap,
household and 20 per cent Laundary ad valorem (2) Other sorts 20 per cent ad valorem
(Ad valorem rate of tarrif varies from time to time as per amendments).
Later
it was amended in the year 1979 empowering the Govt.
to
grant exemption under section 8 of the Act. The details thereof are not
material for the purpose of these cases. It is seen that in 1954 in Tariff
entry 15A "soap" means all varieties of the product known
commercially as soap. Item 1 provided that soap in relation to its manufacture
with the aid of power or of steam for heating, they were classified as Plain
bars, other sorts, toilet soaps and soap, other then husehold or laundry or
toilet. While amending the entry in 1964 the language couched therein as seen earliar
is thus: 'soap' means all varities of products known commercially as soap.
1)
Soap, household and Laundry
2)
"Other sorts" and graded ad valorem tariff has been prescribed.
It is
seen that household and laundry soap was subjected to levy of tariff at a
lesser rate than other sorts" ad valorem. The contention of Sri Ganguli,
the learned Senior counsel for the union is that statute always kept
distinction between soap "household and laundry" and "other
sorts". Toilet soap was kept in the packet of other sorts. Household and
laundry soaps are being used for cleaning household articles and utensils and
washing the clothes while toilet soaps are for bathing purpose. The latter
compose of diverse varieties, based on personal liking and 383 taste, are being
used. They are commercially known as other sorts but not household. The legislative
history furnishes unimpeachable evidence that soaps used for household and
laundry are compendiously treated as a class and are subjected to imposition of
lesser tariff. They receive their colour from each other as compendiously known
in the commercial parlance that the former are meant for use for household
purposes while toilet soap are for use for bath and are subject to higher rate
of tariff at par with soap for commercial and industrial purposes. They bear
higher rate of tariff. The explanatory note appended to the Finance Bill 1964
would furnish the legislative intendment to amend the tariff item and the
treatment meted out to toilet soap for tariff purpose. It is accordingly
understood by the department and also by the trade circles.
The appellants
too intially treated toilet soap as other sorts but later, on legal opinion,
they claimed them as household soaps. The construction adopted by the tribunal
is consistent with the standard works on soaps. M/s Harish Salve and Ashok Desai,
contended that in 1954 toilet soap was treated as an independent tariff
sub-item and household and laundry soaps were treated as separate entity and
separately subjected to varied rates of tariff. On amendment in 1964 toilet
soap was omitted as a separate entity and brought toilet soap as part of genus,
namely, soap "house hold", as a toilet soap is always a household
soap. Therefore, the reliance by revenue on varied rates of duty or
departmental contemporenia expositio have no bearing. The object of
classification does not show that toilet soap is not part of the genus,
"soap household" unless it is established otherwise.
The
question, therefore, emerges whether "toilet soap" would be household
soap within the meaning of Tariff item 15(1) of the Schedule. Undoubtedly true,
as contended by Sri Ganguli, that preceding amendment toilet soap was
classified separately under sub item 2 and assessed to duty accordingly. But by
amendment the distinction was wiped out and toilet soap was brought into common
hotchpoch. So the contention that the variety of products known commercially as
soaps have been enumerated or included compendiously, retaining their original colour
even after the amendment made in the Finance Act, 1964 and falls into
"other sorts" same genus, prima facie, though attractive, on
consideration from proper perspective and in its setting in common commercial
parlance, soap "toilet" appears to fall in household in sub-item 1 of
tariff item 15 of the Schedule.
It is
true that the heading "soaps" are commercially known to be of diverse
variety.
The
provisions of the Tariff do not determine the relevant entity of the goods.
They deal whether and under what entry, the indentified entity attracts duty.
The goods are to be identified and then to find the appropriate heading, sub-
heading under which the identified goods/products would be classified. To find
the appropriate classification description employed in the tariff nomenclature
should 384 be appreciated having regard to the terms of the headings read with the
relevant provisions or statutory rules or interpretation put up thereon. For exigibility'
to excise duty the entity must be specified in positive terms under a
particular tariff entry. In its absence be deduced from a proper construction
of the tariff entry. There is neither intendment nor equity in a taxing
statute. Nothing is implied. Neither can we insert nor anything can we delete
but it should be interpreted and construed as per the words the legislature has
chosen to employ. in the Act or Rules.
There
is no room for assumption or presumptions. The object of the parliament has to
be gathered from the language used in the statute. The contention that toilet
soap is commercially different from household and laundry soaps, as could be
seen from the opening words of entry 15, needs careful analysis. It is well, at
the outset, to guard against confusion between the meaning and the legal effect
of an expression used in a statute. Where the words of the statute are plain
and clear, there is no room for applying any of the principles of
interpretation which are merely presumption in cases of ambiguity in the
statute. The court would interpret them as they stand. The object and purpose
has to be gathered from such word themselves. Words should not be regarded as
being surplus nor be rendered Otiose.
Strictly
speaking there is no place in such cases for interpretation or construction
except where the words of statute admit of two meanings. The safer and more
correct course to deal with a question of construction of statute is to take
the words themselves and arrive, if possible, at their meaning, without, in the
first place, reference to cases for theories of construction. Let us,
therefore, consider the meaning of the word soap "household". The
word household signifies a family living together. In the simplistic language
toilet soap being used by the family as household soap is too simplification to
reach a conclusion.
Therefore,
one has to gather its meaning in the legal setting to discover the object which
the Act seeks to serve and the purpose of the amendment brought about. The task
of interpretation of the statute is not a mechanical one. It is more than mere
reading of mathametical formula. It is an attempt to discover the intention of
the legislature from the language used by it, keeping always in mind, that the
language is at best an imperfect instrument for the expression of actual human
thoughts. it is also idle to expect that the draftman drafted it with divine
prescience and perfect and unequivocal clarity. Therefore, court would endeavour
to eschew literal construction if it produces manifest absurdity or unjust
result. In Manmohad Das v. Vishnu Das, AIR 1967 SC 643 a Constitution bench
held as follows:
"The
ordinary rule of construction is the provision of a statute must be construed
in accordance with the language used therein unless there are compelling
reasons, such as, where a leteral construction would reduce the provision to
absurdity or prevent manifest intention of the legislature from being carried
out".
385 In
Ramavatar Budhaiprasad etc. v. Assit. Sales Tax Officer, Akola and Anr. [1962]
1 SCR 279, another Constitution Bench was to consider whether "betal
leaves" are "vegetable" within the meaning of item 6 of the 11
Schedule to the M.P. Sales Tax Act. It was contended that betal leaves are
vegetable and, therefore, they are exempted from the payment of sales tax.
While construing item 6, this court held that the words must be construed not
in any technical sense nor from the botanical point of view but as, understood
in common parlance. It has not been defined in the Act and being a word of
every day use it must be construed in its popular sense meaning "that
sense which people conversant with the subject matter with which the statute is
dealing would attribute. to it". It is to be construed as understood in
common language. Therefore, betal leaves were held to be not vegetable. The
term 'vegetables' is to be understood as commonly understood denoting those
classes of vegetable matter which are grown in kitchen gardens and are used for
the table. The same view was reiterated in Motipur Zamindari Co. (Pvt.) Ltd. v.
State of Bihar [1962] Supp. 1 SCR 498 and State of West Bengal and Ors. v. Washi
Alumed etc. [1977]3 SCR 149. In Washi Ahmed's case green ginger was held to be
vegetable within the meaning of the word used in common parlance. In Motipur Zaminadari's
case it was held that sugarcane was not vegetable.
In Porritts
& Spencer (Asia) Lid. v. State of Haryana, [1979] 1
SCR 545 this Court held that Dryer felts' are not textiles. In that context the
principle of understanding the meaning of the word in common parlance was
adopted. In Indo International Industries v. Commissioner of Sales Tax. U. P.,
[1981] 3 SCR 294 at 297C this Court held that "it is well settled that in interpreating
items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary
object is to raise revenue and for which purpose they classify diverse
products, articles and substances resort should be had not to "the
scientific anti technical' meaning of the terms or expression used but to their
popular meaning, that is to say, the meaning attached to them by those dealing
in them.If any term or expression has been defined in the (emphasis supplied)
enactment then it must he understood in the sense in which it is defined but in
the absence of any definition being given in the enactment the meaning of the
term in common parlance or commercial parlance has to be adopted. In that case
the clinical syringes manufactured and sold by the assessee were not considered
as glassware' falling within entry 39 of the First Schedule of the Act. In
commercial sense Glassware would never comprise of articles like clinical
syringes etc., or specialised significance and utility. Same view was
reiterated in P.A. Chillai Chidambara Nadar v. Addl. Appellate Asst.
Commissioner.
Madurai and Anr. [1985] 4 SCC 30 that
coconut is neither a fresh fruit nor a vegetable. In khandelwal Metal Works v.
Union of India, [1985] Supp. 1 SCR 750 at 774 B-C this Court held that court
cannot decide classification 386 of goods under Import Tariff by implication.
If rules of interpretation are made in the Act, they should be applied and
interpretation would be made with their aid for classification. The court held
that brass scrap is not metal alloy. Craises on Statute Law (7th Edition) at
pace 164 specified one of the Rules of Interpretation of Statutes as extracted
below:
"The
second Rule is that if the statute is passed with reference to a particular
trade, business or transaction and, words are used therein which everybody conversent
with that trade, business or transaction knows and understands to have a
particular meaning in it, then the words are to be construed as having that
particular meaning" In Shri Bharuch Coconut Trading Co. and Ors. v.
Municipal Corporation of the city of Ahemdabad and Ors., [1992] Suppl. 1 SCC 298 this Court applied the test as
"would a householder when asked to bring some fresh fruits or some
vegetable for the evening meal bring Coconut too as vegetable? Obviously the
answer is in the negative". Again when a person goes to a commercial
market ask for coconuts, "no one will consider brown coconut to be
vegetable or fresh fruit, no householder would purchase it as a fruit.
Therefore,
the meaning of the word brown coconut, whether it is a green fruit has to be
understood in its ordinary commercial parlance". Accordingly it was held
that brown coconut was not green fruit. In interpreting the statute the
individual appraisal of the wisdom or unwisdom of a particular course
consciously selected by the Legislature is to be put aisde. In Hansraj Gordhan Das
v. H.H. Dave. Assn. Collector of Central Excise & Customs and Ors., [ 1969]
2 SCR 25 3 this court held that the operation of the statutory notification had
to be judged not by the object which authority had in mind but by the words it
had employed to effectuate the legislative interest. The question whether the
cotton textiles manufactured by handlooms are entitled to exemption, this court
held to be positive. It may be noted that marketability of the product is an
essential facet to attract dutiability of the goods under the Act. The general
purpose or common use of the product though may not be conclusive but may be
relevant to classify it in a tariff entry when it was not specifically
enumerated in a particular entry or sub-entry. The construction of the word
must yield in favour of promoting and effectuating the object and purpose of
the Act.
In
Dunlop India Ltd. v. Union of India & Ors. [1976] 2 SCR 98
this Court found the entry not in residuary but placed in the parentage and
relieved it from orphanage. in Anant B. Timbodia v. Union of India, [1992] 1
Scale 527, this Court was to consider whether imported cloves fell with item
169 in List 8 of Appendix 6 or para 167 of chapter 8 of import and export
policy 1990-93. Para 167 of Chapter 8 of import policy clearly provided the
heading-Import of Spices includes cloves, cinnamon/ cassia, nupneg and Mace.
Therefore, it was held that import permit is necessary. The doctrine of popular
sense or trade or its use in making medicine as crude drug 387 was not
accepted. Dictionary meaning or meaning given in Indian Pharmaceutical Codex
was not accepted as given in in view of specific enumeration. In Superintendent
of central Excise, Surat v. Vac Metal Corporaion Ltd. AIR 1986 SC 1167 when the
revenue contended that metalised yarn fell within general Tariff entry 18 yarn
and synthetic fibres", this court held that entry 15A (2) first schedule
of Central Excise & Salt Act's specific entry relating to articles made of
plastics of "all sorts" and metalised yam wax exigible to lessor
tariff duty.
In Spaco
Carburettors (India) Ltd. v. Collector of Customs.
Bombay [1988] 3 SCR 37 whether special purpose complex machine tool fell in
entry 84-89 or 84,45/48, this court held, after taking into account the purpose
and use of it, that it is a multipurpose machine tool and fell in item 84,
45/48 of 1st Schedule.
The
contention of the Revenue which finds favour with the tribunal that the
legislative history and memorandum appended to the Finance Bill would furnish
aid to the construction of the word "household" soap is not apposite
to the fact situation. When there is ambiguity in the word, statement and
objects the legislative history, the memorandum appended to the Bill and the
speech of the mover of the Bill are relevant material to discover the intention
intention of the legislature. In Shashikant Laxman Kale and Anr. v. Union of
India and Anr., [1990] 4 SCC 366 at 376 para 17 this Court held that "for
determining the purpose or object of the legislation, it is permissible to look
into the circumstances which prevailed at the time when _the law was made, the
Statement of Objects and, Reasons of the Bill which actuated the step to
provide a remedy for the then existing malady can be used for the limited
purpose of appreciating the background and the antecedent state of affairs
leading to the legislation. The memorandum explaining the provisions in the
Finance Bill which were not part of the 'Notes on Clauses' appended to the
Statement of Objects and Reasons of the Bill cannot be used to draw support therefrom
as it is not an accurate guide of the final Act. In that behalf this Court
relied on the statement of law profounded by Francis Bennion in his Statuitory
Interpretation, Second Edition, 1984 at p. 529 relied on by the appellants in
this case too. In Ajoy Kumar Bannerjee and Ors. v. Union of India and ors.
[1984] 3 SCC 127 relied on by Sri Ganguli in this behalf renders no assistance
to the Revenue. Therein the question was the object of delegated legislation.
Therein the memorandum appended to the Bill incorporating s. 16 of the General
Insurance Business (Nationalisation) Act, 1972 was considered in the context of
fixation of the pay scales of the employees. The doctrine of reading down,
placing reliance on Utkal contranctors and Joinery Pvt. Lid. and Ors. v. State
of Orissa and Ors. [1987] 3 SCC 279 also is of no assistance to the Revenue.
The doctrine of reading down has been applied only to sustain the
constitutionality of the statute which question is not before us. There is no
quarrel with the proposition that in ascertaining the meaning of the word or a
clause or 388 sentence in the statute in its interpretation, everything which
is logically relevant should be admissible. It is no doubt true that the
doctrine of Noscitur A Sociis, meaning thereby, that it is a legitimate rule of
construction to construe words in an Act of Parliament with reference to words found
in immediate connection with them i.e. when two or more words which are
susceptible of analogous meaning are clubbed together, they are understood to
be used in their cognate sense. They take, as it were, their colour from each other,
the meaning of the more general is restricted to a sense analogous to a less
general. The philosophy behind it is that the meaning of doubtful words may be
ascertained by reference to the meaning of words associated with it.
This
doctrine is broader than the doctrine of ejusdem generis. This doctrine was
accepted by this Court in catina of cases but its application is to be made to
be context and the setting in which the words came to be used or associated in
the statute or the statutory rule. Equally the doctrine of' contemporanea erpositio
is also being invoked to cull out the intendment by removing ambiguity in its
understanding of the statute by the executive. This Court in a latest case
Indian metals & Ferro Alloys Lid. v. Collector of central Excise (1991) 51
E.L.T 165 (S.C) cited all the decisions upto date and applied the doctrine to
the understanding by the revenue of the provisions in income-tax Act' In Desh Bandhu
Gupta and Ors v. Delhi Stock Exchange [1979] 3 SCR 373 this Court held that
this principle can be invoked, though the same will not always be decisive on
the question of construction. But the contemporaneous construction placed by
administrative or executive officers charged with executing the statute,
although not controlling, is nevertheless entitled to considerable weight as
highly persuasive. We may also add that if the interpretation is erroneous,
court would without hesitation refuse to follow such construction. This Court
also equally expressed the view that its application was in restricted sense to
ancient legislation in J. K. Cotton Spinning and Weaving Mills Ltd. and Anr. v.
Union of India and Ors. [1987] Supp. SCC 350 and in Doypack Systems Pvt. Lid. case
[1988] 2 SCR 962 at 1000 F to H. In State of Madhya Pradesh v. M/s. G.S. Dall
and Flour Mills, [1992] Supp. 1 SCC 150 at 153 para 18, this Court doubted the
application of the doctrine of contemporanea exposito as given to the
construction or its applicability to a recent statute that too in the first few
years of its enforcement. In this case also the question whether toilet soap is
a household soap had arisen within a short period after the Amendment Act, 1964
came into force, Therefore the understanding by the executive and its
interpretation in bringing toilet soap in sub-item (2) "other sorts"
instead of item (1) "household" being of formative period of
statutory operation the doctrine became inapplicable.
The
ratio in Indo Metal case, therefore, is inapplicable.
As
rightly contended by Sri Ganguli that the doctrine of placement of a particular
goods in a particular tariff item or residuary i.e. parentage or orphanage i.e.
in placement of toilet soaps 389 in either sub-items is not attracted to the
facts as it is not a case of residuary items but of sub-classification within
the same item.
Thus
considered in the legal setting and commercial parlance we are of the
considered view that "toilet soap" being of everyday household use
for the purpose of the bath and having removed its separate identity which it
enjoyed preceding amendment and having been not specifically included in
"other sorts", it took its shelter in commercial parlance under
"household". As stated if any body goes to the market and asks for
toilet soap he must ask only for household bathing purpose and not for
industrial or other sorts. Even the people dealing with it would supply it only
for houshold purpose. It may be true that Household consists of soap used for
cleaning utensils, laundry used for cleaning soiled clothes and soap toilet is
used for bathing but household is compendiously used, toilet soap is used only
by the family for bathing purpose. Individual preference or choice or teste of
a particular soap for bath is not relevant. The soap "toilet" would,
therefore fall, within the meaning the word of "household" in sub-item
(1) of item 15 of the Schedule. The classification shall accordingly be
adopted. The appeals are accordingly allowed. the cases are remitted to the
primary authority to deal with the matters accordingly. We do not propose to go
into the question of refund as it is a matter to be dealt with by the
authorities concerned in accordance with the law., The appellants shall have to
apply for refund and the authorities shall be required to deal with it in
accordance with law. It is for the authority, therefore, to decide the question
as per law. In the circumstances parties are directed to bear their own costs.
V.M.
Appeal allowed.
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