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Friday, 30 November 2012

The Deputy Inspector General of Police & Anr. Vs. S. Samuthiram

Law Kerala - Friday, November 30, 2012

IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
K.S. Radhakrishnan and Dipak Misra, JJ.
November 30, 2012
CIVIL APPEAL NO. 8513 OF 2012
(Arising out of SLP(C) No.31592 of 2008)
The Deputy Inspector General of Police & Anr. …..Appellants
versus
S. Samuthiram ….. Respondent
Head Note:-
Eve-teasing - Lack of uniform laws - Issued various guidelines – Sexual harassments like eve-teasing amount to violation of rights guaranteed under Article 21, 14 and 15 and an effecting legislation is a need of the hour. 
Eve-teasing - Lack of uniform laws - Issued various guidelines – Court directed the State Governments and Union Territories to take prompt action by deputing plain clothed female police officers at public places such as bus stops, railway stations, cinema theatres, shopping malls, etc. and by establishing Women Helpline in various cities and towns. 
Eve-teasing - Lack of uniform laws - Issued various guidelines – Guidelines issued to the person-in-charge of the educational institutions, cinema theatres, places of worship, shopping complex and crew of public service vehicle to pass on the information regarding such offences to the nearest police station. 
Eve-teasing - Lack of uniform laws - Issued various guidelines – the State Government and UT were directed to install CCTV in strategic position in order to detect such incidents and catch the offenders.
J U D G M E N T
K.S. Radhakrishnan, J.
1. Leave granted.
2. Eve-Teasing is a euphemism, a conduct which attracts penal action but it is seen, only in one State, a Statute has been enacted, that is State of Tamil Nadu to contain the same, the consequence of which may at times drastic. Eve-teasing led to the death of a woman in the year 1998 in the State of Tamil Nadu which led the Government bringing an ordinance, namely, the Tami Nadu Prohibition of Eve- Teasing Ordinance, 1998, which later became an Act, namely, the Tamil Nadu Prohibition of Eve-Teasing Act, 1998 [for short ‘the Eve Teasing Act’]. The Statement of Objects and Reasons of the Eve- Teasing Act reads as follows:
“Eve-teasing in public places has been a perennial problem. Recently, incidents of eve-teasing leading to serious injuries to, and even death of a woman have come to the notice of the Government. The Government are of the view that eve-teasing is a menace to society as a whole and has to be eradicated. With this in view, the Government decided to prohibit eve-teasing in the State of Tamil Nadu. 
2. Accordingly, the Tamil Nadu Prohibition of Eveteasing Ordinance, 1998 (Tamil Nadu Ordinance No. 4 of 1998) was promulgated by the Governor and the same was published in the Tamil Nadu Government Gazette Extraordinary, dated the 30th July, 1998. 
3. The Bill seeks to replace the said Ordinance.” 
3. We are in this case concerned with a situation where a member of the law enforcement agency, a police personnel, himself was caught in the act of eve-teasing of a married woman leading to criminal and disciplinary proceeding, ending in his dismissal from service, the legality of which is the subject matter of this appeal.
4. The respondent herein, while he was on duty at the Armed Reserve, Palayamkottai was deputed for Courtallam season Bandobust duty on 9.7.1999 and he reported for duty on that date at 8.30 PM at the Courtallam Season Police out post. At about 11.00 PM he visited the Tenkasi bus stand in a drunken state and misbehaved and eveteased a married lady, who was waiting along with her husband, to board a bus. The respondent approached that lady with a dubious intention and threatened both husband and wife stating that he would book a case against the husband unless the lady accompanied him. Further, he had disclosed his identity as a police man. Both husband and wife got panic and complained to a police man, namely, Head Constable Adiyodi (No.1368) who was standing along with Head Constable Peter (No.1079) of Tenkasi Police Station on the opposite side of the bus-stand. They were on night duty at the bus stand. They rushed to the spot and took the respondent into custody and brought him to Tenkasi Police Station along with the husband and wife. Following that, a complaint No.625/1999 was registered on 10.7.1999 at that Police Station against the respondent under Section 509 of the Indian Penal Code and under Section 4 of the Eve-teasing Act. On 10.7.1999, at about 1.25 hrs., the respondent was taken to the Government Hospital Tenkasi for medical examination. There he was examined by Dr. N. Rajendran, who issued a Certificate of Drunkenness, which reads as follows:
Symptoms at the time of examination : 
Breath smell of alcohol, Eye congested, Retina expanded, sluggish reaction to light, speech and activities normal, pulse rate 96, Blood pressure 122/85. I am of opinion that the above person: 
(i) consumed alcohol but is not under its influence. 
Station: Tenkasi 
Name: N. Rajendran 
Date: 10.07.1999 (Sd/- dt.10.07.1999) 
Civil Surgeon I am not willing to undergo blood and urine test. Sd/- S. Samuthiram, PC 388” 
5. The respondent was then placed under suspension from 10.7.1999 (FN) as per DO.1360/1999 in C.No.P1/34410/1999 vide order dated 18.7.1999 and departmental proceedings were initiated under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules, 1955 (in short ‘Tamil Nadu Service Rules’) for his highly reprehensible conduct in behaving in a disorderly manner to a married lady in a drunken state at Tenkasi bus stand on 9.7.1999. Further, it was also noticed that he was absent from duty from 07.00 hrs on 10.7.1999 to 03.45 hrs. 
6. The Deputy Superintendent of Police, Armed Reserve, Tiruneveli, conducted a detailed domestic enquiry and after examining ten prosecution witnesses and perusing fourteen prosecution documents and after hearing the defence witnesses, submitted a report dated 22.11.1999 finding all the charges proved against the delinquent respondent. The Superintendent of Police, Tiruneveli after carefully perusing the enquiry report dismissed the respondent from service on 4.1.2000.
7. The respondent, aggrieved by the dismissal order, filed O.A. No.1144 of 2000 before the Tamil Nadu Administrative Tribunal, Chennai. While the O.A. was pending before the Tribunal, the Judicial Magistrate, Tenkasi rendered the judgment in S.T.C No.613 of 2000 on 20.11.2000 acquitting the respondent of all the charges. The judgment of the Criminal Court was brought to the notice of the Tribunal and it was submitted that, on the same set of facts, the delinquent be not proceeded within the departmental proceeding. The judgment of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Another (1999) 3 SCC 679 was also placed before the Tribunal in support of that contention.
8. The Tribunal noticed that both, husband and wife, deposed before the Enquiry Officer that the respondent had committed the offence, which was supported by the other prosecution witnesses, including the two policemen who took the respondent in custody from the place of incident. Consequently, the Tribunal took the view that no reliance could be placed on the judgment of the criminal court. The O.A. was accordingly dismissed by the Tribunal vide order dated 23.3.2004. The order was challenged by the respondent in a Writ Petition No.13726 of 2004 before the High Court of Madras. The High Court took the view that if a criminal case and departmental proceedings against an official are based on the same set of facts and evidence and the criminal case ended in an honourable acquittal and not on technical grounds, imposing punishment of removal of the delinquent official from service, based on the findings of domestic enquiry would not be legally sustainable. The High Court also took the view that the version of the doctor who was examined as PW8 and Ext. P-4 certificate issued by him, could not be considered as sufficient material to hold the respondent guilty and that he had consumed alcohol, but was found normal and had no adverse influence of alcohol. The High Court, therefore, allowed the writ petition and set aside the impugned order dismissing him from service. It was further ordered that the respondent be reinstated with continuity of service forthwith, with back wages from the date of acquittal in the criminal case, till payment.
9. The State, aggrieved by the said judgment has filed this appeal by special leave through the Deputy Inspector General of Police.
10. Shri C. Paramasivam, learned counsel appearing for the appellant, submitted that the High Court was not justified in interfering with disciplinary proceedings and setting aside the order of dismissal of the respondent. Learned counsel submitted that the High Court overlooked the fact that the standard of proof in a domestic enquiry and criminal enquiry is different. The mere acquittal by the criminal Court does not entitle the delinquent for exonerating in the disciplinary proceedings. Learned counsel also submitted that the case in hand is not where punishment of dismissal was imposed on the basis of conviction in a criminal trial and only, in such situation, acquittal by a Court in a criminal trial would have some relevance. Further, it was also pointed out that, in the instant case, the respondent was not honourably acquitted by the criminal Court, but was acquitted since complainant turned hostile.
11. Shri V. N. Subramaniam, learned counsel appearing for the respondent, supported the findings recorded by the High Court. Learned counsel submitted that the judgment of the criminal court acquitting the respondent has to be construed as an honourable acquittal and that the respondent cannot be proceeded with on the same set of facts on which he was acquitted by a criminal court. Learned counsel also placed reliance on the judgment of this Court in Capt. M. Paul case (supra).
12. We may first deal with the departmental proceedings initiated against the respondent.
DEPARTMENTAL PROCEDINGS :
13. We may indicate that the following were the charges levelled against the respondent in the departmental proceedings and a charge memo dated 24.8.1999 was served on the respondent:
(i) Reprehensible conduct in having behaved in a disorderly manner in a drunkenness mood at Tenkasi Bus-stand on 9.7.1999 at 23.00 hrs. 
(ii) Highly reprehensible conduct in eve-teasing Pitchammal (44/1999) W/o. Vanamamalai of Padmaneri in the presence of her husband and having approached her with a dubious intention on 9.7.1999 at 23.00 hrs. and thereby getting involved in a criminal case in Tenkasi P.S. Cr. No. 625/1999 under Section 509 IPC and Section 4 of the Tamil Nadu Prohibition of Eve-Teasing Ordinance Act, 1998 and 
(iii) Highly reprehensible conduct in having absented from duty from 10.7.1999 at 07.00 hrs onward till 03.45 hrs.
14. The charges were inquired into by the Deputy Superintendent of Police, Armed Reserve Tirunelveli. The prosecution examined ten witnesses and fourteen documents were produced. On the side of the defence, D.W. 1 and D.W. 2 were examined. After examining the witnesses on either side and after giving an opportunity of hearing, the Enquiry Officer found all the three charges proved beyond reasonable doubt. P.Ws. 4 and 5, who were Head Constables 1368 Adiyodi of Tenkasi Police Station and Head Constable 1079 Peter of Tenkasi Police Station, clearly narrated the entire incident and the involvement of the respondent, so also PW 6, the Head Constable of Tenkasi Police Station. The Enquiry Officer clearly concluded that the evidence tendered by the prosecution witnesses P.Ws. 4, 5 and 6 and prosecution documents 3, 4 and 5 would clearly prove the various charges levelled against him. The Medical Officer of the Government Hospital had also certified that the delinquent had consumed liquor and he was not cooperating for urine and blood tests. The Enquiry Officer also found that the delinquent ought to have reported for duty at the out-post station on 10.7.1999 at 07.00 hrs. as per the instruction given to him on 9.7.1999 at 20.30 hrs., while he reported for courtallam season Bandobust duty at season out-post police station. But, it was found that the delinquent had failed to report for duty. Further, he had also indulged in the activity of eve-teasing a married woman. After finding the delinquent respondent guilty of all the charges, the Enquiry Officer submitted its report dated 22.11.1999. The Superintendant of Police, Tirunelveli concurred with the findings of the Enquiry Officer and held that the charges were clearly proved beyond reasonable doubt. It was held that the respondent being a member of a disciplined force should not have behaved in a disorderly manner and that too in a drunken state, in a public place, and misbehaving with a married woman. It was held that the said conduct of the respondent would undermine the morale of the police force, consequently, the Superintendant of Police awarded the punishment of dismissal from service on the respondent, vide its proceeding dated 4.1.2000. The respondent then filed an appeal before the Inspector General of Police, which was rejected vide his proceeding dated 10.3.2000. Respondent then filed an application in O.A. No. 1144 of 2000 before the Tamil Nadu Administrative Tribunal. While O.A. was pending, the delinquent was acquitted of the criminal charges. 
CRIMINAL PROCEEDINGS:
15. We have indicated that a criminal case was also registered against the respondent by the Tenkasi Police Station being Crime No. 625/1999 under Section 509 IPC and Section 4 of the Eve-Teasing Act, 1998, which was registered as STC 613 of 2002 before the Judicial Magistrate, Tenkasi. Before the Criminal Court, PW 1 and PW 2, the husband and the wife (victim) turned hostile. Prosecution then did not take steps to examine the rest of the prosecution witnesses. Head Constable (No.1368) Adiyodi and Head Constable (No.1079) Peter of Tenkasi Police Station were crucial witnesses. Facts would clearly indicate that it was the above mentioned Head Constables who took the respondent to Tenkasi Police Station along with P.Ws. 1 and 2, though P.Ws. 1 and 2 had clearly deposed before the Enquiry Officer of the entire incident including the fact that the above mentioned two Head Constables had taken the respondent along with P.Ws.1 and 2 to the Tenkasi Police Station. The Criminal Court took the view that since P.W. 1 and P.W. 2 turned hostile, the criminal case got weakened. The prosecution, it may be noted also took no step to examine the Head Constables by name 1368 Adiyodi and 1079 Peter of Tenkasi Police Station, so also the Doctor P.W.8 before the criminal Court. It was under such circumstances that the criminal Court took the view that there is no evidence to implicate the respondent-accused, consequently, he was found not guilty under Section 509 IPC read with Section 4 of the Eve-Teasing Act and was, therefore, acquitted.
16. We may indicate that before the order of acquittal was passed by the Criminal Court on 20.11.2000, the Departmental Enquiry was completed and the respondent was dismissed from service on 4.1.2000. The question is when the departmental enquiry has been concluded resulting in the dismissal of the delinquent from service, the subsequent finding recorded by the Criminal Court acquitting the respondent delinquent, will have any effect on the departmental proceedings. The propositions which the respondent wanted to canvass placing reliance on the judgment in Capt. M. Paul Anthony case (supra) read as follows:
“(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. 
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. 
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet. 
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. 
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.”
17. This Court, in Southern Railway Officers’ Association v. Union of India (2009) 9 SCC 24, held that acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the Disciplinary Authority. The Court reiterated that order of dismissal can be passed even if the delinquent officer had been acquitted of the criminal charge.
18. In State Bank of Hyderabad v. P.Kata Rao (2008) 15 SCC 657, this Court held that there cannot be any doubt whatsoever that the jurisdiction of the superior Courts in interfering with the finding of fact arrived at by the Enquiring Officer is limited and that the High Court would also ordinarily not interfere with the quantum of punishment and there cannot be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/or where the departmental proceedings had already been initiated, to continue therewith. In that judgment, this Court further held as follows:
“The legal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Another [(1999) 3 SCC 679], however, remains unshaken although the applicability thereof had been found to be dependant on the fact situation obtaining in each case.”
19. In a later judgment of this Court in Divisional Controller, Karnataka State Raod Transport Corporation v. M. G., Vittal Rao (2012) 1 SCC 442, this Court after a detailed survey of various judgments rendered by this Court on the issue with regard to the effect of criminal proceedings on the departmental enquiry, held that the Disciplinary Authority imposing the punishment of dismissal from service cannot be held to be disproportionate or non-commensurate to the delinquency.
20. We are of the view that the mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the Department. The respondent, it may be noted, is a member of a disciplined force and non examination of two key witnesses before the criminal court that is Adiyodi and Peter, in our view, was a serious flaw in the conduct of the criminal case by the Prosecution. Considering the facts and circumstances of the case, the possibility of winning order P.Ws. 1 and 2 in the criminal case cannot be ruled out. We fail to see, why the Prosecution had not examined Head Constables 1368 Adiyodi and 1079 Peter of Tenkasi Police Station. It was these two Head Constables who took the respondent from the scene of occurrence along with P.Ws. 1 and 2, husband and wife, to the Tenkasi Police Station and it is in their presence that the complaint was registered. In fact, the criminal court has also opined that the signature of PW 1 (husband – complainant) is found in Ex.P1 – Complaint. Further, the Doctor P.W.8 has also clearly stated before the Enquiry Officer that the respondent was under the influence of liquor and that he had refused to undergo blood and urine tests. That being the factual situation, we are of the view that the respondent was not honourably acquitted by the criminal court, but only due to the fact that PW 1 and PW 2 turned hostile and other prosecution witnesses were not examined.
Honourable Acquittal
21. The meaning of the expression ‘honourable acquittal’ came up for consideration before this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions ‘honourable acquittal’, ‘acquitted of blame’, ‘fully exonerated’ are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression ‘honourably acquitted’. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.
22. In R.P. Kapoor v. Union of India, AIR 1964 SC 787, it was held even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam and another v. Raghava Rajgopalachari reported in 1972 SLR 45, this Court quoted with approval the views expressed by Lord Williams, J. in (1934) 61 ILR Cal. 168 which is as follows:
“The expression “honourably acquitted” is one which is unknown to court of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term ‘honourably acquitted’”.
23. As we have already indicated, in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.
24. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the re-instatement is automatic. There may be cases where the service rules provide in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.
25. In view of the above mentioned circumstances, we are of the view that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings as against the respondent, in its limited jurisdiction under Article 226 of the Constitution of India.
26. We may, in the facts and circumstances of this case, wish to add some aspects which are also of considerable public importance. We notice that there is no uniform law in this country to curb eve-teasing effectively in or within the precinct of educational institutions, places of worship, bus stands, metro-stations, railway stations, cinema theatres, parks, beaches, places of festival, public service vehicles or any other similar place. Eve-teasing generally occurs in public places which, with a little effort, can be effectively curbed. Consequences of not curbing such a menace, needless to say, at times disastrous. There are many instances where girls of young age are being harassed, which sometimes may lead to serious psychological problems and even committing suicide. Every citizen in this country has right to live with dignity and honour which is a fundamental right guaranteed under Article 21 of the Constitution of India. Sexual harassment like eveteasing of women amounts to violation of rights guaranteed under Articles 14, 15 as well. We notice in the absence of effective legislation to contain eve-teasing, normally, complaints are registered under Section 294 or Section 509 IPC.
27. Section 294 says that “Whoever, to the annoyance of others- (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song; ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both”.
28. It is for the prosecution to prove that the accused committed any obscene act or the accused sang, recited or uttered any obscene song; ballad or words and this was done in or near a public place, it was of obscene nature and that it had caused annoyance to others. Normally, it is very difficult to establish those facts and, seldom, complaints are being filed and criminal cases will take years and years and often people get away with no punishment and filing complaint and to undergo a criminal trial itself is an agony for the complainant, over and above, the extreme physical or mental agony already suffered.
29. Section 509 IPC says, “Whoever intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending, that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine or with both”.
30. The burden is on the prosecution to prove that the accused had uttered the words or made the sound or gesture and that such word, sound or gesture was intended by the accused to be heard or seen by some woman. Normally, it is difficult to establish this and, seldom, woman files complaints and often the wrong doers are left unpunished even if complaint is filed since there is no effective mechanism to monitor and follow up such acts. The necessity of a proper legislation to curb eve-teasing is of extreme importance, even the Tamil Nadu Legislation has no teeth.
31. Eve teasing today has become pernicious, horrid and disgusting practice. The Indian Journal of Criminology and Criminalistics (January-June 1995 Edn.) has categorized eve teasing into five heads viz. (1) verbal eve teasing; (2) physical eve teasing; (3) psychological harassment; (4) sexual harassment; and (5) harassment through some objects. In Vishaka and Others v. State of Rajasthan; (1977) 6 SCC 241, this Court has laid down certain guidelines on sexual harassments. In Rupan Deol Bajaj and Another v. K.P.S. Gill; (1995) 6 SCC 194, this Court has explained the meaning of ‘modesty’ in relation to women. More and more girl students, women etc. go to educational institutions, work places etc. and their protection is of extreme importance to a civilized and cultured society. The experiences of women and girl children in over-crowded buses, metros, trains etc. are horrendous and a painful ordeal.
32. The Parliament is currently considering the Protection of Woman against Sexual Harassment at Workplace Bill, 2010, which is intended to protect female workers in most workplaces. Provisions of that Bill are not sufficient to curb eve-teasing. Before undertaking suitable legislation to curb eve-teasing, it is necessary to take at least some urgent measures so that it can be curtailed to some extent. In public interest, we are therefore inclined to give the following directions:
(1) All the State Governments and Union Territories are directed to depute plain clothed female police officers in the precincts of busstands and stops, railway stations, metro stations, cinema theatres, shopping malls, parks, beaches, public service vehicles, places of worship etc. so as to monitor and supervise incidents of eve-teasing. 
(2) There will be a further direction to the State Government and Union Territories to install CCTV in strategic positions which itself would be a deterrent and if detected, the offender could be caught. 
(3) Persons in-charge of the educational institutions, places of worship, cinema theatres, railway stations, bus-stands have to take steps as they deem fit to prevent eve-teasing, within their precincts and, on a complaint being made, they must pass on the information to the nearest police station or the Women’s Help Centre. 
(4) Where any incident of eve-teasing is committed in a public service vehicle either by the passengers or the persons in charge of the vehicle, the crew of such vehicle shall, on a complaint made by the aggrieved person, take such vehicle to the nearest police station and give information to the police. Failure to do so should lead to cancellation of the permit to ply. 
(5) State Governments and Union Territories are directed to establish Women’ Helpline in various cities and towns, so as to curb eveteasing within three months. 
(6) Suitable boards cautioning such act of eve-teasing be exhibited in all public places including precincts of educational institutions, bus stands, railway stations, cinema theatres, parties, beaches, public service vehicles, places of worship etc. 
(7) Responsibility is also on the passers-by and on noticing such incident, they should also report the same to the nearest police station or to Women Helpline to save the victims from such crimes. 
(8) The State Governments and Union Territories of India would take adequate and effective measures by issuing suitable instructions to the concerned authorities including the District Collectors and the District Superintendent of Police so as to take effective and proper measures to curb such incidents of eve-teasing.
33. The Appeal is accordingly allowed with the above directions and the judgment of the High Court is set aside. However, there will be no order as to costs.

Thursday, 29 November 2012

State of Haryana & Anr. Vs. Kartar Singh (D) Through Lrs.

Law Kerala - Thursday, November 29, 2012

(2012) 40 SCD 025
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
R.M. LODHA AND ANIL R. DAVE, JJ.
NOVEMBER 29, 2012
CIVIL APPEAL NO. 5115 of 2005
STATE OF HARYANA & ANR. ...Appellant(s)
VERSUS
KARTAR SINGH (D) THROUGH LRS. ...Respondent(s)
WITH
Civil Appeal No. 5116 of 2005
Civil Appeal No. 5096 OF 2005
Civil Appeal Nos. 5097-5098 of 2005
Head Note:-
Civil Procedure Code, 1908 - Sections 151 & 152 - An award and decree having become final under the LA Act cannot be amended or altered seeking enhancement of the statutory benefits under the amended provisions brought in by the Amendment Act in the LA Act by filing petitions under Section 151 and Section 152 of the CPC.
Practice and Procedure - Any judgment and order which is a nullity never acquires finality and is open to challenge in the executing proceedings.
J U D G M E N T
R.M. LODHA, J.
Civil Appeal No. 5115 of 2005
This Appeal, by special leave, has been filed under Article 136 of the Constitution of India by the State of Haryana and the Land Acquisition Collector, Urban Estate, Panchkula against the judgment and order of the Punjab & Haryana High Court dated April 1, 2003.
2. The controversy arises in this way. On May 2, 1973, the Government of Haryana issued notification under Section 4 of the Land Acquisition Act, 1894 (for short, 'LA Act') proposing to acquire land for residential and commercial area as Sector 13 and Sector 13 Extension at Karnal, Haryana.
3. Subsequent thereto, declaration was made under Section 6 of the LA Act and then the award came to be passed by the Land Acquisition Collector on November 23, 1973 fixing the market value of the acquired land at the rate of Rs. 270/- per Biswa. The respondents' land is part of the above acquisition in the award.
4. The respondents were not satisfied with the market value determined by the Land Acquisition Collector and sought reference under Section 18 of the LA Act. The matter was referred to the civil court for determination of compensation for compulsory acquisition of the respondents' land.
5. The reference court on May 17, 1980 decided the reference(s) and enhanced compensation at the rate of Rs. 22/- per square yard. The reference court also awarded solatium at the rate of 15% on the enhanced amount of compensation and interest at the rate of 6% from the date of dispossession till the payment was made as awarded.
6. The respondents did not carry the matter further. However, the State of Haryana was dissatisfied with the determination of compensation by the reference court and, accordingly, preferred first appeal before the Punjab and Haryana High Court.
7. On January 16, 1981, the first appeal preferred by the State of Haryana was dismissed by the single Judge of the High Court and the judgment and award by the reference court was upheld. It is pertinent to mention that during the pendency of the first appeal, the respondent No. 1 had laid execution of the award passed by the reference court by making an execution application in 1980.
8. The State of Haryana preferred special leave petition against the award and decree of the High Court but was unsuccessful. Special leave petition was dismissed by this Court on December 12, 1983.
9. Vide Land Acquisition (Amendment) Act, 1984 (for short, 'Amendment Act'), LA Act came to be amended with effect from September 24, 1984. By the Amendment Act, Section 23 of the LA Act was amended. There was amendment in Section 28 of the LA Act as well. Section 30 of the Amendment Act provided for transitional provisions.
10. On April 28, 1989, the respondents made an application under Sections 151 and 152 of the Code of Civil Procedure (for short, 'CPC') before the High Court in the disposed of first appeal against which the special leave petition preferred by the State of Haryana had already been dismissed. By this application the respondents prayed for the benefits of the amended provisions in LA Act particularly Sections 23(1-A) and 23(2) thereof.
11. The High Court allowed the application made by the respondents for grant of benefits of the amended provisions on April 28, 1989 and granted benefits of the amended provisions of Sections 23(1-A) and 23(2) of the LA Act to them.
12. The respondents then filed another execution petition for execution of the award and decree dated April 28, 1989. On behalf of the appellants, an objection was raised that the award and decree passed by the High Court on April 28, 1989 was without jurisdiction and, therefore, not executable and enforceable.
13. The executing court, vide its order dated April 6, 1999, overruled the objection taken by the appellants and held that it was not open to the executing court to go behind the decree. The present appellants challenged the order of the executing court by filing a revision petition before the High Court. The revision petition has been dismissed by the impugned order.
14. Mr. Manjit Singh, learned Additional Advocate General, appeared for the appellants and submitted that the decree passed by the High Court on April 28, 1989 giving the benefits of amended Sections 23(1-A) and 23(2) of the LA Act to the respondents was a nullity and without jurisdiction. He relied upon the decisions of this Court in State of Punjab and another Vs. Babu Singh and others, 1995 Supp (2) SCC 406; Union of India Vs. Swaran Singh & others, (1996) 5 SCC 501 and Sarup Singh and another Vs. Union of India and another, (2011) 11 SCC 198.
15. Mr. Manoj Swarup, learned counsel for the respondents, in the first place distinguished the decision of this Court in Swaran Singh by making reference to the observations made by this Court in para 7 which reads, “Admittedly, as on that date the claimants were entitled to solatium at 15% and interest at 6%”. Secondly, learned counsel for the respondents submitted that Swaran Singh did not lay down good law. He cited the decision of this Court in Balvant N. Viswamitra and others Vs. Yadav Sadashiv Mule (Dead) through LRs. and others, (2004) 8 SCC 706 to draw a distinction between a 'void decree' and an 'illegal, incorrect and irregular decree'. Learned counsel submitted that the judgment and decree passed by the High Court on April 28, 1989 could at best be termed as an 'illegal, incorrect and irregular decree' but surely it is not a 'void decree'. He also referred to the decision of this Court in National Agricultural Cooperative Marketing Federation of India Ltd. and another Vs. Union of India and others, (2003) 5 SCC 23 to butress his point that the decree dated April 28, 1989 having attained finality as its correctness, legality and validity was never challenged and, therefore, could not have been set up in the execution proceedings.
16. In Babu Singh a two Judge bench of this Court was concerned with an appeal filed by the State of Punjab and its functionary against the judgment and order of the High Court whereby the High Court allowed the applications made by the expropriated owners under Sections 151 and 152, CPC to amend the decree by awarding the benefits of enhanced solatium and additional amount available under Section 23(1-A) and Section 23(2) and Section 28 of the LA Act as amended by the Amendment Act. This Court held that the High Court was clearly without jurisdiction in entertaining the applications under Sections 151 and 152, CPC to award additional benefits under the amended provisions of the LA Act. The discussion of this Court in Babu Singh1 reads as follows :
“4. It is to be seen that the High Court acquires jurisdiction under Section 54 against the enhanced compensation awarded by the reference court under Section 18, under Section 23(1) with Section 26 of the Act. The Court gets the jurisdiction only while enhancing or declining to enhance the compensation to award higher compensation. While enhancing the compensation "in addition" to the compensation under Section 23(1), the benefits enumerated under Section 23(1-A) and Section 23(2) as also interest on the enhanced compensation on the amount which in the opinion of the Court "the Collector ought to have awarded in excess of the sum which the Collector did award", can be ordered. Thus, it would be clear that civil court or High Court gets jurisdiction when it determines higher compensation under Section 23(1) and not independently of the proceedings.
5. This is the view taken by this Court in State of Punjab v. Satinder Bir Singh (sic.), disposed of on 22-2- 1995.The same ratio applies to the facts in this case, since as on the date when the judgment and decree was made by the High Court, the law was that the High Court should award solatium at 15% and interest at 6%. Payment of additional amount as contemplated under Section 23(1-A) cannot be made since the notification under Section 4(1) was dated 11-12-1974 and even the award of the District Court was dated 23-2-1978. Under these circumstances, the LA Amendment Act 68 of 1984 has no application and there is no error in the award or the decree as initially granted. The High Court was clearly without jurisdiction in entertaining the applications under Sections 151 and 152 to award the additional benefits under the Amendment Act 68 of 1984 or to amend the decrees already disposed of.”
17. In Swaran Singh the correctness of the decree passed by the High Court giving the expropriated owners benefits of amended provisions of solatium and interest under Section 23(2) and proviso to Section 28 of the LA Act as amended by the Amendment Act was in issue. That was a case where notification under Section 4(1) of the LA Act was published on June 10, 1977 proposing to acquire the land for extension of Amritsar Cantonment at Village Kala Ghanpur. The award was made by the Collector under Section 11 on August 28, 1978. On reference under Section 18, the reference court enhanced the compensation by its award and decree dated December 24, 1981. The award and decree passed by the reference court was confirmed by the single Judge as well as by the Division Bench of the High Court and special leave petitions from the judgment of the High Court were dismissed. On July 28, 1987, after the amendments were made in LA Act by the Amendment Act, the owners made applications under Sections 151 and 152, CPC for award of enhanced solatium and interest. The High Court allowed the applications. When execution applications were laid, the executing court dismissed them, but on revision the High Court allowed them and directed execution of enhanced solatium and interest. It is from this order that the appeals, by special leave, were preferred by the Union of India before this Court. This Court in para 7 and 8 (pages 502-503) held as under :
“7. It is settled law that after the Reference Court has granted an award and decree under Section 26(1) of the Act which is an award and judgment under Section 26(2) of the Act or on appeal under Section 54, the only remedy available to a party is to file an application for correction of clerical or arithmetical mistakes in the decree. The award of solatium and interest would be granted on enhancement of compensation when the court finds that the compensation was not correct. It is a part of the judgment or award. Admittedly, as on that date the claimants were entitled to solatium at 15% and interest at 6%. The Amendment Act 68 of 1984 came into force as on 24-9-1984. It is settled law that if the proceedings are pending before the Reference Court as on that date, the claimants would be entitled to the enhanced solatium and interest. In view of the fact that the Reference Court itself has answered the reference and enhanced the compensation as on 24-12-1081, the decree as on that date was correctly drawn and became final.
8. The question then is whether the High Court has power to entertain independent applications under Sections 151 and 152 and enhance solatium and interest as amended under Act 68 of 1984. This controversy is no longer res integra. In State of Punjab V. Jagir Singh [1995 Supp.(4) SCC 626] and also in catena of decisions following thereafter in Union of India V. Pratap Kaur [(1995) 3 SCC 263]; State of Maharashtra V. Maharau Srawan Hatkar [(1995) 3 SCC 316 : JT 1995 (2) SC 583];State of Punjab V. Babu Singh [1995 Supp. (2) SCC 406]; Union of India V. Raghubir Singh [(1989) 2 SCC 754]; and K.S. Paripoornan V. State of Kerala [(1994) 5 SCC 593] this Court has held that the Reference Court or the High Court has no power or jurisdiction to entertain any applications under Sections 151 and 152 to correct any decree which has become final or to independently pass an award enhancing the solatium and interest as amended by Act 68 of 1984. Consequently, the award by the High Court granting enhanced solatium at 30% under Section 23 (2) and interest at the rate of 9% for one year from the date of taking possession and thereafter at the rate of 15% till date of deposit under Section 28 as amended under Act 68 of 1984 is clearly without jurisdiction and, therefore, a nullity. The order being a nullity, it can be challenged at any stage. Rightly the question was raised in execution. The executing Court allowed the petition and dismissed the execution petition. The High Court, therefore, was clearly in error in allowing the revision and setting aside the order of the executing Court.”
18. In Swaran Singh it has been clearly held that the High Court has no power to entertain an independent application under Section 151 and Section 152 of the CPC and enhance solatium and interest as amended under the Amendment Act.
19. The sentence “Admittedly, as on that date the claimants were entitled to solatium at 15% and interest at 6%” in para 7 in Swaran Singh is hardly a distinguishing feature.Swaran Singh is on all fours and is squarely applicable to the present fact situation. We have no reason, much less a justifiable reason, to doubt the correctness of law laid down in Swaran Singh.
20. Swaran Singh has been referred to by this Court in para 26 (page 208) of comparatively recent judgment in Sarup Singh and followed. In para 25 (page 208 of the report) this Court in Sarup Singh held as under :
“25. In the present cases the judgment and order passed by the High Court before Amendment Act of 68 of 1984 became final and binding as no appeal was brought to this Court thereafter. However, consequent to the amendment in the Land Acquisition Act, the appellants had filed civil miscellaneous applications for the grant of 30% solatium and 9% interest for first year and 15% interest thereafter. This Court has also held in a catena of decisions that a decree once passed and which has become final and binding cannot be sought to be amended by filing petition under Sections 151 and 152, CPC.”
21. Legal position is no more res integra that an award and decree having become final under the LA Act cannot be amended or altered seeking enhancement of the statutory benefits under the amended provisions brought in by the Amendment Act in the LA Act by filing petitions under Section 151 and Section 152 of the CPC. In view of this, the award and decree passed by the High Court on April 28, 1989 has to be held to be without jurisdiction and nullity. It goes without saying that a plea of nullity of a decree can always be set up before the executing court. Any judgment and order which is a nullity never acquires finality and is thus open to challenge in the executing proceedings.
22. The decisions of this Court in Balvant N. Viswamitra and National Agricultural Cooperative Marketing Federation of India Ltd. relied upon by the learned counsel for the respondents have no relevance to the controversy in hand. The propositions of law laid down therein are beyond question but these propositions have no application to the facts of the present case.
23. Civil Appeal is, accordingly, allowed. The order of the High Court dated April 1, 2003 and the order of the Additional District Judge, Karnal dated April 6, 1999 are liable to be set aside and are set aside. The execution petition filed by the respondents seeking execution of the award and decree dated April 28, 1989 stands dismissed. The parties shall bear their own costs.
Civil Appeal No. 5116 of 2005
24. In view of judgment passed in Civil Appeal 5115/2005 above, this Civil Appeal is also allowed in the same terms. The parties shall bear their own costs.
Civil Appeal No. 5096 of 2005 and Civil Appeal Nos. 5097-5098 of 2005
25. In view of the judgment passed in Civil Appeal 5115 of 2005 and Civil Appeal No. 5116 of 2005 today, these Civil Appeals do not survive and stand disposed of as such.

Tuesday, 27 November 2012

Commissioner of Central Excise, New Delhi Vs. M/s Connaught Plaza Restaurant (P) Ltd., New Delhi

Law Kerala - Tuesday, November 27, 2012

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
D.K. JAIN AND JAGDISH SINGH KHEHAR, JJ.
NOVEMBER 27, 2012
CIVIL APPEAL NOS. 5307-5308 0F 2003
COMMISSIONER OF CENTRAL EXCISE, NEW DELHI APPELLANT
VERSUS
M/S CONNAUGHT PLAZA RESTAURANT (P) LTD., NEW DELHI RESPONDENT
Head Note:-
Central Excise and Tariff Act, 1985 - Central Excise Act, 1944 - Section 35L - Whether ‘soft serve’ served at the restaurants/outlets commonly and popularly known as McDonalds, is classifiable under heading 21.05 (as claimed by the revenue) or under heading 04.04 or 2108.91 (as claimed by the assessee)? 
Held:- the Tribunal erred in law in classifying ‘softserve’ under tariff sub-heading 2108.91, as “Edible preparations not elsewhere specified or included”, “not bearing a brand name”. We hold that ‘soft serve’ marketed by the assessee, during the relevant period, is to be classified under tariff sub-heading 2105.00 as “ice-cream”.
J U D G M E N T
D.K. JAIN, J.
1. The short question of law for consideration in these appeals, filed by the revenue, under Section 35L of the Central Excise Act, 1944 (for short “the Act”) is whether ‘soft serve’ served at the restaurants/outlets commonly and popularly known as McDonalds, is classifiable under heading 21.05 (as claimed by the revenue) or under heading 04.04 or 2108.91 (as claimed by the assessee) of the Central Excise and Tariff Act, 1985 (for short “the Tariff Act”).
2. During the relevant period, the respondent-assessee was engaged in the business of selling burgers, nuggets, shakes, soft-serve etc. through its fast food chain of restaurants, named above. In so far as the manufacture and service of ‘soft serve’ is concerned, the assessee used to procure soft serve mix in liquid form from one M/s Amrit Foods, Ghaziabad; at Amrit Foods, raw milk was pasteurised, skimmed milk powder was added (the milk fat content in the said mixture is stated to be 4.9%, not exceeding 6% at any stage); sweetening agent in the form of sugar or glucose syrup and permitted stabilizers were added; the mixture, in liquid form, was then homogenized, packed in polyethylene pouches and stored at 0 to 40C. This material was then transported to the outlets under the same temperature control, where the liquid mix was pumped into a ‘Taylor-make’ vending machine; further cooled along with the infusion of air, and finally, the end product, ‘soft serve’, was drawn through the nozzle into a wafer cone or in a plastic cup and served to the customers at the outlet.
3. For the periods from April 1997 to March 2000, three show cause notices came to be issued to the assessee. These alleged that the ‘soft serve’ ice-cream was classifiable under Chapter 21, relating to “Miscellaneous Edible Preparations” of the Tariff Act, attracting 16% duty under heading 21.05, sub-heading 2105.00 -“Ice-cream and other edible ice, whether or not containing cocoa”. Invoking the proviso to sub-section (1) of Section 11A of the Act, additional duty was also demanded. A proposal for imposing penalty on the assessee and on their Managing Director was also initiated.
4. While adjudicating on the first show cause notice, vide order dated 31st May, 2000, the adjudicating authority held that : ‘soft serve’ was classifiable under heading 04.04. Describing the goods as “other dairy produce; edible products of animal origin, not elsewhere specified or included”, it held that the process undertaken by the assessee amounted to manufacture and the extended period of limitation was not applicable. However, while adjudicating on the second show cause notice, vide order dated 28th September, 2001, the adjudicating authority concluded that: soft serve was classifiable under heading 21.05; the process undertaken by the assessee for conversion of soft serve mix to ‘soft serve’ amounted to manufacture and that the assessee was not entitled to small scale exemption because of use of the brand name “McDonalds”. While adjudicating on the third show cause notice, the adjudicating authority reiterated that : ‘soft serve’ was classifiable under heading 21.05; the process undertaken by the assessee for conversion of soft serve mix to ‘soft serve’ amounted to manufacture and small scale exemption was not available to the assessee because of use of the brand name “McDonalds”. In an appeal filed by the assessee, the Commissioner of Central Excise (Appeals) reversed the above finding and classified ‘soft serve’ under the sub-heading 2108.91.
5. Being aggrieved, cross appeals were filed, both by the revenue as also the assessee, before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, as it then existed, (for short “the Tribunal”). The appeals arising from the first two show cause notices were disposed of by the main order, dated 29th January, 2003. The appeal arising from the third show cause notice was disposed of by the Tribunal vide order dated 3rd August, 2004, following its earlier decision in order dated 29th January, 2003. The Tribunal came to the conclusion that the process undertaken by the assessee, namely, conversion of soft serve mix to ‘soft serve’ amounted to manufacture and that ‘soft serve’ was classifiable under sub-heading 2108.91, describing the goods as “Edible preparations, not elsewhere specified or included” – “not bearing a brand name”, attracting nil rate of duty. The Tribunal held thus :-
“In view of the technical literature, ISI Specification and provisions made in Prevention of Food Adulteration Act, 1955 and Rules made thereunder, the impugned product cannot be classified as icecream merely on the ground that the consumer understood the same as ice-cream or the ingredients of both the products are same. The statement given by the Managing Director also cannot be a basis for determining the exact classification of the product in the Central Excise Tariff. The ratio of the decision in the case of Shree Baidyanath Ayurved Bhavan Limited case is not applicable to the facts of the present matter. The dispute in the said case was as to whether the ‘Dant Manjan Lal’ is Ayurvedic medicine or ‘Tooth Powder’. In that context, the Supreme Court observed that resort should not be had to the scientific and technical meaning of the terms and expressions used but to their popular meaning, which does not mean that if a particular product is not ice-cream it can be classified as ice-cream because some consumers treated it as ice-cream. Accordingly, the product in question is not classifiable under Heading 21.05 of the Central Excise Tariff.”
6. It is manifest that the Tribunal based its conclusion on the technical meaning and specifications of the product “icecream”, stipulated in the Prevention of Food Adulteration Act, 1955 (for short “the PFA”) and rejected the common parlance test, viz. the consumers’ understanding of the product. Being aggrieved by the said approach, the revenue is before us in these appeals.
7. Mr. Arijit Prasad, learned counsel appearing for the revenue, submitted that the enquiries conducted by the revenue revealed that in common trade parlance, ‘soft serve’ is known as “ice-cream”; all the ingredients used and the process of manufacture adopted for preparation of ‘soft serve’ is essentially the same as is adopted for manufacture of an “ice-cream”; and therefore, manufacture of ‘soft serve’ cannot be said to be distinct from the manufacture of “ice-cream”. It was urged that the specifications for manufacture of “ice-cream” under the PFA are irrelevant in so far as the question of classification of goods under the Tariff Act is concerned. It was asserted that the identity of ‘soft serve’ is associated with how the public at large identifies it, and not by the parameters or specifications indicated in other statutes including the PFA in relation to “ice-cream”. According to the learned counsel ‘soft serve ice-cream’, ‘soft ice-cream’ and ‘Softies’ are commonly taken as different kinds of “ice-cream”. Finally, it was submitted that since the product is sold from the outlets of “McDonalds”, the brand is in the customer’s mind when he/she enters the outlet and therefore, it cannot be covered under sub-heading 2108.91, as erroneously held by the Tribunal.
8. Mr. V. Lakshmi Kumaran, learned counsel appearing for the assessee, on the other hand, asserted that but for heading 21.05, “ice-cream” itself was a dairy product and would have been classified under heading 04.04. Therefore, ‘soft serve’ would also be classifiable under heading 04.04. It was argued that ‘soft serve’ cannot be referred to as “icecream” even by applying the common parlance test, in as much as ‘soft serve’ is sold throughout the world not as “ice-cream” but only as ‘soft serve’. “Ice-cream”, the world over, is commonly understood to have milk fat content around 10% whereas ‘soft serve’ does not contain milk fat of more than 5%.
9. Referring to the technical meaning of “ice-cream”, given in Kirk-Othmer Encyclopedia of Chemical Technology, Third Edition – Volume 15 and “Outlines of Dairy Technology” by Sukumar De, learned counsel vehemently submitted that all these books describe “ice-cream” as a dessert, which is frozen to a hard stage, whereas, soft serve dispensed through the Taylor machine is served in a semi-solid state, by processing the pre-mix by blowing air into it. ‘Soft serve’ is not as hard as an ice-cream is, and thus, cannot be called as “ice cream” even if tested on the touchstone of the common parlance test. The main thrust of the submission of the learned counsel was that if the assessee markets ‘soft serve’ as “ice-cream”, they will be liable to prosecution under the PFA, because the milk fat content in ‘soft serve’ is less than 10%, a statutory requirement for manufacture of “ice-cream”. In support of the submission, learned counsel commended us to the decision of this Court in State of Maharashtra Vs. Baburao Ravaji Mharulkar & Ors., (1984) 4 SCC 540  wherein it was held that a person selling ice-cream with 5% milk fat content instead of minimum 10% milk fat, was selling adulterated ice-cream and was liable to prosecution. Reliance was also placed on the decision of this Court in Akbar Badrudin Giwani Vs. Collector of Customs, Bombay, (1990) 2 SCC 203  to contend that in matters pertaining to classification of a commodity, technical and scientific meaning of the product is to prevail over the commercial parlance meaning.
10. Lastly, Mr. V. Lakshmi Kumaran urged that even if we were to hold that ‘soft serve’ is an “ice-cream”, under notification No.16/2003-CE (NT) dated 12th March, 2003, granting exemption to “softy ice-cream” dispensed through a vending machine, issued under Section 11C of the Act, the assessee will not be liable to pay any Excise duty in respect of “softy ice-cream” during the relevant period.
11. In short, the case of the assessee is that “soft serve” is a product distinct and separate from “ice-cream” since the world over “ice-cream” is commonly understood to have milk fat content above 8% whereas ‘soft serve’ does not contain more than 5% of milk fat; it cannot be considered as “ice-cream” by common parlance understanding since it is marketed by the assessee the world over as ‘soft serve’; “ice-cream” should be understood in its scientific and technical sense; and hence, for these reasons, ‘soft serve’ is to be classified under heading 04.04 as “other dairy produce” and not under heading 21.05. On the other hand, Revenue claims that “ice-cream” has not been defined under heading 21.05 or in any of the chapter notes of Chapter 21; upon conducting enquiries it was found that ‘soft serve’ is known as “ice-cream” in common parlance; and hence, it must be classified in the category of “icecream” under heading 21.05 of the Tariff Act.
12. Before we proceed to evaluate the rival stands, it would be necessary to notice the length and breadth of the relevant tariff entries that have been referred to by both the learned counsel. “Chapter 4 Dairy Produce, etc. 312 04.04 Other dairy produce; Edible products of animal origin, not elsewhere specified or included -Ghee : 0404.11 --Put up in unit containers and bearing a brand name Nil 0404.19 --Other Nil 0404.90 --Other Nil Heading No. Subheading No. Description of goods Rate of duty (1) (2) (3) (4) 21.05 2105.00 Ice cream and other edible ice, whether or not containing cocoa 16% 21.08 Edible preparations, not elsewhere specified or included 2108.91 -Not bearing a brand name Nil”
13. Chapter 4 of the Tariff Act reads “dairy produce; edible products of animal origin, not elsewhere specified or included.” Heading 04.04 is applicable to “other dairy produce; or edible products of animal origin which are not specified or included elsewhere.” As is evident from Chapter note 4, the terms of heading 04.04 have been couched in general terms with wide amplitude. Chapter note 4 reads:
“4. Heading No. 04.04 applies, inter alia, to buttermilk, curdled milk, cream, yogurt, whey, curd, and products consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter or flavoured or containing added fruit or cocoa and includes fats and oils derived from milk (e.g. milkfat, butterfat and butteroil), dehydrated butter and ghee.”
14. On the other hand, Chapter 21 of the Act is applicable to “Miscellaneous Edible Preparations”. Heading 21.05 refers to “ice-cream and other edible ice”. It is significant to note that none of the terms have been defined in the chapter. Further heading 2108.91 is a residuary entry of wide amplitude applicable to “edible preparations, not elsewhere specified or included” and “not bearing a brand name”.
15. According to the rules of interpretation for the First Schedule to the Tariff Act, mentioned in Section 2 of the Tariff Act, classification of an excisable good shall be determined according to the terms of the headings and any corresponding chapter or section notes. Where these are not clearly determinative of classification, the same shall be effected according to Rules 3, 4 and 5 of the general rules of interpretation. However, it is also a well known principle that in the absence of any statutory definitions, excisable goods mentioned in tariff entries are construed according to the common parlance understanding of such goods.
16. The general rules of interpretation of taxing statutes were succinctly summarized by this Court in Oswal Agro Mills Ltd. & Ors. Vs. Collector of Central Excise & Ors., 1993 Supp (3) SCC 716 at page 720; as follows :
“4. 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/products would be classified. To find the appropriate classification description employed in the tariff nomenclature should 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 it must 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 can we delete anything 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.……….. .. 
*** *** *** 
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 mathematical 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 draftsman 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 Manmohan Das v. Bishun Das : (1967) 1 SCR 836, a Constitution Bench held as follows:
“…The ordinary rule of construction is that a provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons, such as, where a literal construction would reduce the provision to absurdity or prevent manifest intention of the legislature from being carried out.”
17. Therefore, in order to find an appropriate entry for the classification of ‘soft serve’, it would be necessary to first construe the true scope of the relevant headings. As noted above, none of the terms in heading 04.04 and heading 21.05 have been defined and no technical or scientific meanings have been given in the chapter notes. Evidently, ‘soft serve’ is not defined in any of the chapters aforesaid. Under these circumstances, it becomes imperative to examine if the subject good could come under the purview of any of the classification descriptions employed in the Tariff Act. Having regard to the nature of the pleadings, the issue is whether the term “ice-cream” in heading 21.05 includes within its ambit the product ‘soft serve’. That leads us to the pivotal question, whether, in the absence of a statutory definition, the term “ice-cream” under heading 21.05 is to be construed in light of its scientific and technical meaning, or, whether we are to consider this term in its common parlance understanding to determine whether its amplitude is wide enough to include ‘soft serve’ within its purview.
Common Parlance Test :
18. Time and again, the principle of common parlance as the standard for interpreting terms in the taxing statutes, albeit subject to certain exceptions, where the statutory context runs to the contrary, has been reiterated. The application of the common parlance test is an extension of the general principle of interpretation of statutes for deciphering the mind of the law maker; “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.” [(See : Oswal Agro Mills Ltd (supra)].
19. A classic example on the concept of common parlance is the decision of the Exchequer Court of Canada in The King Vs. Planter Nut and Chocolate Company Ltd., (1951) C.L.R. (Ex. Court) 122. The question involved in the said decision was whether salted peanuts and cashew nuts could be considered to be "fruit" or "vegetable" within the meaning of the Excise Tax Act. Cameron J., delivering the judgment, posed the question as follows:
“...would a householder when asked to bring home fruit or vegetables for the evening meal bring home salted peanuts, cashew or nuts of any sort? The answer is obviously `no'.” 
Applying the test, the Court held that the words “fruit” and “vegetable” are not defined in the Act or any of the Acts in pari materia. They are ordinary words in every-day use and are therefore, to be construed according to their popular sense.
20. In Ramavatar Budhaiprasad Etc. Vs. Assistant Sales Tax Officer, Akola, (1962) 1 SCR 279  the issue before this Court was whether betel leaves could be considered as “vegetables” in the Schedule of the C.P. & Berar Sales Tax Act, 1947 for availing the benefit of exemption. While construing the import of the word “vegetables” and holding that betel leaves could not be held to be “vegetables”, the Court observed thus :
“…But this word 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.”
21. In Commissioner of Sales Tax, Madhya Pradesh Vs. Jaswant Singh Charan Singh, (1967) 2 SCR 720  the Court had to decide whether “charcoal” could be classified as “coal” under Entry I of Part III of Schedule II of the Madhya Pradesh General Sales Tax Act, 1958. Answering the question in the affirmative, it was observed as follows :
“3. Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is now well-settled that while interpreting items in statutes like the Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense……” 
XXX XXX XXX XXXX 
“5. The result emerging from these decisions is that while construing the word ‘coal’ in Entry I of Part III of Schedule II, the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A sales tax statute is being one levying a tax on goods must in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as coal according to the meaning ascribed to it in common parlance. Viewed from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include ‘charcoal’ in the term ‘coal’. It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense be spoken as coal.”
22. In Dunlop India Ltd. Vs. Union of India & Ors., (1976) 2 SCC 241 at page 251, while holding that VP Latex was to be classified as “raw rubber” under Item 39 of the Indian Tariff Act, 1934, this Court observed:
“29. It is well established that in interpreting the meaning of words in a taxing statute, the acceptation of a particular word by the trade and its popular meaning should commend itself to the authority.” 
“34. We are, however, unable to accept the submission. 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 the usual course. But once an article is classified and put under a distinct entry, the basis of the classification is not open to question. Technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, we then see no difficulty for statutory classification under a particular entry.”
23. In Shri Bharuch Coconut Trading Co. and Ors. Vs. Municipal Corporation of the City of Ahmedabad & 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 (sic)?” The Court held that when a person goes to a commercial market to ask for coconuts, "no one will consider brown coconut to be vegetable or fresh fruit much less a green fruit. No householder would purchase it as a fruit.” Therefore, the meaning of the word ‘brown coconut’, and whether it was a green fruit, had to be “understood in its ordinary commercial parlance.” Accordingly it was held that brown coconut would not be considered as green fruit.
24. In Indian Aluminium Cables Ltd. Vs. Union of India & Ors., (1985) 3 SCC 284  this Court observed the following:
“…This Court has consistently taken the view that, in determining the meaning or connotation of words and expressions describing an article in a tariff schedule, one principle which is fairly wellsettled is that those words and expressions should be construed in the sense in which they are understood in the trade, by the dealer and the consumer. The reason is that it is they who are concerned with it and, it is the sense in which they understand it which constitutes the definitive index of the legislative intention”.
25. In Collector of Central Excise, Kanpur Vs. Krishna Carbon Paper Co., (1989) 1 SCC 150  this Court has opined thus :
“12. It is a well settled principle of construction, as mentioned before, that where the word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clearly expressed by the legislature….. …But there is a word of caution that has to be borne in mind in this connection, the words must be understood in popular sense, that is to say, these must be confined to the words used in a particular statute and then if in respect of that particular items, as artificial definition is given in the sense that a special meaning is attached to particular words in the statute then the ordinary sense or dictionary meaning would not be applicable but the meaning of that type of goods dealt with by that type of goods in that type of market, should be searched.”
26. In Reliance Cellulose Products Ltd., Hyderabad Vs. Collector of Central Excise, Hyderabad-I Division, Hyderabad, (1997) 6 SCC 464  it was observed:
“20. In other words, if the word used in a fiscal statute is understood in common parlance or in the commercial world in a particular sense, it must be taken that the Excise Act has used that word in the commonly understood sense. That sense cannot be taken away by attributing a technical meaning to the word. But if the legislature itself has adopted a technical term, then that technical term has to be understood in the technical sense. In other words, if in the fiscal statute, the article in question falls within the ambit of a technical term used under a particular entry, then that article cannot be taken away from that entry and placed under the residuary entry on the pretext that the article, even though it comes within the ambit of the technical term used in a particular entry, has acquired some other meaning in market parlance. For example, if a type of explosive (RDX) is known in the market as Kala Sabun by a section of the people who uses these explosives, the manufacturer or importer of these explosives cannot claim that the explosives must be classified as soap and not as explosive.”
27. There is a catena of decisions that has dealt with the classification of Ayurvedic products between the categories of medicaments and cosmetics and in the process made significant pronouncements on the common parlance test.
28. In Shree Baidyanath Ayurved Bhavan Ltd. Vs. Collector of Central Excise, Nagpur, (1996) 9 SCC 402  at page 404 this Court while applying the common parlance test held that the appellant’s product “Dant Lal Manjan” could not qualify as a medicament and held as follows:
“The Tribunal rightly points out that in interpreting statutes like the Excise Act the primary object of which is to raise revenue and for which purpose various products are differently classified, resort should not be had to the scientific and technical meaning of the terms and expressions used but to their popular meaning, that is to say the meaning attached to them by those using the product. It is for this reason that the Tribunal came to the conclusion that scientific and technical meanings would not advance the case of the appellants if the same runs counter to how the product is understood in popular parlance.”
29. In Naturalle Health Products (P) Ltd. Vs. Collector of Central Excise, Hyderabad, (2004) 9 SCC 136  two appeals were under consideration. One was with respect to Vicks Vapo Rub and Vicks Cough Drops while the other was with respect to Sloan's Balm and Sloan's Rub. It was observed that when there is no definition of any kind in the relevant taxing statute, the articles enumerated in the tariff schedules must be construed as far as possible in their ordinary or popular sense, that is, how the common man and persons dealing with it understand it. The Court held that in both the cases the customers, the practitioners in Ayurvedic medicine, the dealers and the licensing officials treated the products in question as Ayurvedic medicines and not as Allopathic medicines, which gave an indication that they were exclusively Ayurvedic medicines or that they were used in the Ayurvedic system of medicine, though they were patented medicines. Consequently, it was held that the said products had to be classified under the Chapter dealing with medicaments.
30. B.P.L. Pharmaceuticals Ltd. Vs. Collector of Central Excise, Vadodara, (1995) Suppl. 3 SCC 1  was a case in which product "Selsun Shampoo" was under consideration for the purpose of classification under the Tariff Act. According to the manufacturers this shampoo was a medicated shampoo meant to treat dandruff which is a disease of the hair. This Court held that having regard to the preparation, label, literature, character, common and commercial parlance, the product was liable to be classified as a medicament. It was not an ordinary shampoo which could be of common use by common people. The shampoo was meant to cure a particular disease of hair and after the cure it was not meant to be used in the ordinary course.
31. Therefore, what flows from a reading of the aforementioned decisions is that in the absence of a statutory definition in precise terms; words, entries and items in taxing statutes must be construed in terms of their commercial or trade understanding, or according to their popular meaning. In other words they have to be constructed in the sense that the people conversant with the subject-matter of the statute, would attribute to it. Resort to rigid interpretation in terms of scientific and technical meanings should be avoided in such circumstances. This, however, is by no means an absolute rule. When the legislature has expressed a contrary intention, such as by providing a statutory definition of the particular entry, word or item in specific, scientific or technical terms, then, interpretation ought to be in accordance with the scientific and technical meaning and not according to common parlance understanding.
Classification of ‘Soft-Serve ’
32. In light of these principles, we may now advert to the question at hand, viz. classification of ‘soft serve’ under the appropriate heading. As aforesaid, the Tribunal has held that in view of the technical literature and stringent provisions of the PFA, ‘soft serve’ cannot be classified as “ice-cream” under Entry 21.05 of the Tariff Act. We are of the opinion, that in the absence of a technical or scientific meaning or definition of the term “ice-cream” or ‘soft serve’, the Tribunal should have examined the issue at hand on the touchstone of the common parlance test.
33. As noted before, headings 04.04 and 21.05 have been couched in non-technical terms. Heading 04.04 reads “other dairy produce; edible products of animal origin, not elsewhere specified or included” whereas heading 21.05 reads “ice-cream and other edible ice”. Neither the headings nor the chapter notes/section notes explicitly define the entries in a scientific or technical sense. Further, there is no mention of any specifications in respect of either of the entries. Hence, we are unable to accept the argument that since ‘soft serve’ is distinct from “ice-cream” due to a difference in its milk fat content, the same must be construed in the scientific sense for the purpose of classification. The statutory context of these entries is clear and does not demand a scientific interpretation of any of the headings. Therefore, in the absence of any statutory definition or technical description, we see no reason to deviate from the application of the common parlance principle in construing whether the term “ice-cream” under heading 21.05 is broad enough to include ‘soft serve’ within its import.
34. The assessee has averred that ‘soft serve’ cannot be regarded as “ice-cream” since the former is marketed and sold around the world as ‘soft serve’. We do not see any merit in this averment. The manner in which a product may be marketed by a manufacturer, does not necessarily play a decisive role in affecting the commercial understanding of such a product. What matters is the way in which the consumer perceives the product at the end of the day notwithstanding marketing strategies. Needless to say the common parlance test operates on the standard of an average reasonable person who is not expected to be aware of technical details relating to the goods. It is highly unlikely that such a person who walks into a “McDonalds” outlet with the intention of enjoying an “ice-cream”, ‘softy’ or ‘soft serve’, if at all these are to be construed as distinct products, in the first place, will be aware of intricate details such as the percentage of milk fat content, milk non-solid fats, stabilisers, emulsifiers or the manufacturing process, much less its technical distinction from “ice-cream”. On the contrary, such a person would enter the outlet with the intention of simply having an “ice-cream” or a ‘softy icecream’, oblivious of its technical composition. The true character of a product cannot be veiled behind a charade of terminology which is used to market a product. In other words, mere semantics cannot change the nature of a product in terms of how it is perceived by persons in the market, when the issue at hand is one of excise classification.
35. Besides, as noted above, learned senior counsel, appearing for the assessee quoted some culinary authorities for the submission that ice cream must necessarily contain more than 10% milk fat content and be served only in a frozen to hard stage for it to qualify as “ice cream”. It was argued that classifying ‘soft serve’, containing 5% milk fat content, as “ice cream”, would make their product stand foul of requirements of the PFA which demands that an “ice-cream” must have at least 10% milk fat content.
36. Such a hard and fast definition of a culinary product like “ice- cream” that has seen constant evolution and transformation, in our view, is untenable. Food experts suggest that the earliest form of ice cream may have been frozen syrup. According to Maguelonne Toussaint-Samat in her History of Food, “They poured a mixture of snow and saltpeter over the exteriors of containers filled with syrup, for, in the same way as salt raises the boiling-point of water, it lowers the freezing-point to below zero.” The author charters the evolution of “ice cream” in the landmark work from its primitive syrupy form to its contemporary status with more than hundred different forms, and categorizes ‘soft serve’ as one such form.
37. Noted author C. Clarke states the following in “The Science of Ice Cream”:
The legal definition of ice cream varies from country to country. In the UK ‘ice cream’ is defined as a frozen food product containing a minimum of 5% fat and 7.5% milk solids other than fat (i.e. protein, sugars and minerals), which is obtained by heat-treating and subsequently freezing an emulsion of fat, milk solids and sugar (or sweetener), with or without other substances. ‘Dairy ice cream’ must in addition contain no fat other than milk fat, with the exception of fat that is present in another ingredient, for example egg, flavouring, or emulsifier.’ In the USA, ice cream must contain at least 10% milk fat and 20% total milk solids, and must weigh a minimum of 0.54 kg I-’.Until 1997, it was not permitted to call a product ‘ice cream’ in the USA if it contained vegetable fat. Ice cream is often categorized as premium, standard or economy. Premium ice cream is generally made from best quality ingredients and has a relatively high amount of dairy fat and a low amount of air (hence it is relatively expensive), whereas economy ice cream is made from cheaper ingredients (e.g. vegetable fat) and contains more air. However, these terms have no legal standing within the UK market, and one manufacturer’s economy ice cream may be similar to a standard ice cream from another.” 
Therefore, while some authorities are strict in their classification of products as “ice cream” and base it on milk fat content, others are more liberal and identify it by other characteristics. There is, thus, no clear or unanimous view regarding the true technical meaning of “ice cream”. In fact, there are different forms of “ice cream” in different parts of the world that have varying characteristics.
38. On the basis of the authorities cited on behalf of the assessee, it cannot be said that “ice cream” ought to contain more than 10% milk fat content and must be served only frozen and hard. Besides, even if we were to assume for the sake of argument that there is one standard scientific definition of “ice cream” that distinguishes it from other products like ‘soft serve’, we do not see why such a definition must be resorted to in construing excise statutes. Fiscal statutes are framed at a point of time and meant to apply for significant periods of time thereafter; they cannot be expected to keep up with nuances and niceties of the gastronomical world. The terms of the statutes must be adapted to developments of contemporary times rather than being held entirely inapplicable. It is for precisely this reason that this Court has repeatedly applied the “common parlance test” every time parties have attempted to differentiate their products on the basis of subtle and finer characteristics; it has tried understanding a good in the way in which it is understood in common parlance.
39. Learned counsel for the assessee had strongly relied on Akbar Badrudin Giwani (supra) to buttress his claim, that in matters pertaining to classification of commodity taxation, technical and scientific meaning of the product will prevail rather than the commercial parlance, and hence on this basis, headings 04.04 and 21.05 were to be harmoniously construed so that ‘soft serve’ would be classified under heading 04.04. We are afraid, reliance on this judgment is misplaced and out of context. It would be useful to draw a distinction between the contexts of Akbar Badrudin Giwani (supra) and the present factual matrix.
40. In Akbar Badrudin Giwani (supra) the issue was whether the slabs of calcareous stones (which were in commercial parlance known as marble) being imported by the Appellant were to be regarded as “marble” under Item No. 62 of the List of Restricted Items, Appendix 2, Part 8 of Import and Export Policy given that Item No. 25.15 (Appendix 1-B, Schedule I to the Import (Control) Order, 1955 referred to “marble, travertine, ecaussine and other calcareous monumental or building stone of an apparent specific gravity of 2.5 or more and Alabaster…”. Hence, the controversy revolved around whether “marble” should be construed in its scientific and technical meaning, or according to its commercial understanding, in order to determine whether the appellant’s goods would come within the ambit of Entry No. 62 of List of Restricted Items. The Court examined both the entries and opined that Item No. 25.15 referred specifically not only to marble but also to other calcareous stones having specific gravity of 2.5, whereas, Entry No. 62 referred to the restricted item “marble” only. The content of Item No. 25.15 had been couched in scientific and technical terms and therefore, “marble” had to be construed according to its scientific meaning and not in the sense as commercially understood or meant in trade parlance. Hence, in this context this Court held that the general principle of interpretation of tariff entries is of a commercial nomenclature but the said doctrine of commercial nomenclature or trade understanding should be departed from in a case where the statutory content in which the tariff entry appears, requires such a departure. In other words, a trade understanding or commercial nomenclature can be given only in cases where the word in the tariff entry has not been used in a scientific or technical sense and where there is no conflict between the words used in the tariff entry and any other entry in the Tariff Schedule. Thus, these observations of the Court were made in a context where one of the tariff entries was couched in a scientific and technical sense and had to be harmonized with the other entry. It would have run counter to the statutory content of the legislation, to construe the term “marble” in its commercial sense.
41. It is significant to note that the question of classification of ‘soft serve’ is based on a different set of facts in a different context. Heading 21.05 which refers to “ice cream and other edible ice” is not defined in a technical or scientific manner, and hence, this does not occasion the need to construe the term “ice-cream” other than in its commercial or trade understanding. Since, the first condition itself has not been fulfilled; the question of harmonizing heading 21.05 with 04.04 by resort to the scientific and technical meaning of the entries does not arise at all. Hence, we are of the opinion that the ratio of Akbar Badrudin Giwani (supra) does not apply to the facts of the present case.
42. Learned counsel for the assessee had vociferously submitted that the common parlance understanding of “ice-cream” can be inferred by its definition as appearing under the PFA. According to Rule A 11.20.08 the milk fat content of “ice-cream” and “softy ice-cream” shall not be less than 8% by weight. Hence, according, to the learned counsel, the term “ice-cream” under heading 21.05 had to be understood in light of the standards provided in the PFA, more so when selling “Ice-cream” with fat content of less than 10% would attract criminal action, as held in Baburao Ravaji Mharulkar (supra).
43. We are unable to persuade ourselves to agree with the submission. It is a settled principle in excise classification that the definition of one statute having a different object, purpose and scheme cannot be applied mechanically to another statute. As aforesaid, the object of the Excise Act is to raise revenue for which various goods are differently classified in the Act. The conditions or restrictions contemplated by one statute having a different object and purpose should not be lightly and mechanically imported and applied to a fiscal statute for non-levy of excise duty, thereby causing a loss of revenue. [See: Medley Pharmaceuticals Limited Vs. Commissioner of Central Excise and Customs, Daman, (2011) 2 SCC 601  and Commissioner of Central Excise, Nagpur Vs. Shree Baidyanath Ayurved Bhavan Limited, (2009) 12 SCC 419]. The provisions of PFA, dedicated to food adulteration, would require a technical and scientific understanding of “Ice-cream” and thus, may require different standards for a good to be marketed as “ice-cream”. These provisions are for ensuring quality control and have nothing to do with the class of goods which are subject to excise duty under a particular tariff entry under the Tariff Act. These provisions are not a standard for interpreting goods mentioned in the Tariff Act, the purpose and object of which is completely different.
44. Learned counsel for the assessee also contended that based on Rule 3(a) of the General Rules of Interpretation which states that a specific entry shall prevail over a general entry, ‘soft serve’ will fall under heading 04.04 since it is a specific entry. We do not see any merit in this contention. The learned counsel for the assessee had himself contended that “ice-cream” was a dairy product and would have been classified under heading 04.04 if heading 21.05 had not been inserted into the Tariff Act. However, in the presence of heading 21.05, “ice-cream” cannot be classified as a dairy product under heading 04.04. Hence, it is obvious that in relation to heading 04.04, heading 21.05 is clearly a specific entry. Therefore, we cannot subscribe to the claim that heading 04.04 is to be regarded as a specific entry under Rule 3(a) of the General Rules of Interpretation, since such an interpretation would be contrary to the statutory context of heading 21.05. In conclusion, we reject the view taken by the Tribunal and hold that ‘soft serve’ is to be classified as “ice-cream” under heading 21.05 of the Act.
45. At this stage it may be relevant to refer to Trade Notice No. 45/2001 dated 11th June, 2001 of Mumbai Commissionerate IV which came to our notice. According to the said notification, “softy ice-cream/soft serve” dispensed by vending machines, sold and consumed as “ice-cream”, is classifiable under Entry 21.05 of the Act. The same is reproduced below:
Classification of Softy Ice Cream being sold in restaurant etc. dispensed by vending machine —[ Mumbai Commissionerate IV Trade Notice No.45/2001, dt. 11.6.2001] Ice Cream dispensed by vending machine falling under chapter 21 has been made liable to nil rate of duty vide Sl. No.8 of Notification No.3/2001-CE dated 1.3.2001. Doubts have been raised as regards to the classification of softy ice cream/soft serve dispensed by vending machine and soft serve mix used for its manufacture prior to 1.3.2001. A manufacturer was obtaining soft serve mix and processing it in his restaurant for manufacture of softy ice cream. The process involved lowering of temperature so that it changes its form from liquid to semi-solid state and incorporation of air, which results in production of overrun, in Tylor Vending Machine. The product that emerges after this process is a completely different product and is ready to be consumed immediately. It has all the ingredients of an ice cream. The product is sold and consumed as ice cream. In the circumstances, it is clarified by the Board that softy ice cream is correctly classifiable under heading 21.05 of Central Excise Tariff. As per HSN Explanatory Notes, heading 19.01 also cover mix bases (e.g. powders) for making ice cream. It has been further clarified that soft serve mix will be correctly classifiable under heading 19.01. All the trade associations are requested to bring the contents of this trade notice to the attention of their member manufacturers in particular, and trade in general. Sd/- (Neelam Rattan Negi) Commissioner Central Excise, Mumbai-IV”
While it is true that the trade notice is not binding upon this Court, it does indicate the commercial understanding of ‘softserve’ as ‘softy ice- cream’. Further, as this trade notice is in no way contrary to the statutory provisions of the Act, we see no reason to diverge from what is mentioned therein.
46. In view of the aforegoing discussion, we are of the opinion that the Tribunal erred in law in classifying ‘softserve’ under tariff sub-heading 2108.91, as “Edible preparations not elsewhere specified or included”, “not bearing a brand name”. We hold that ‘soft serve’ marketed by the assessee, during the relevant period, is to be classified under tariff sub-heading 2105.00 as “ice-cream”.
47. Lastly, learned counsel for the assessee had also contended that in the event ‘soft serve’ was classifiable under heading 21.05, the assessee was entitled to the benefit under Notification No. 16/2003-CE (NT) dated 12th March 2003. The notification reads:
“Notification: 16/2003-C.E. (N.T.) dated 12-Mar-2003 Softy ice cream and non-alcoholic beverage dispensed through vending machine exempted during period 1-3- 1997 to 28-2-2001 Whereas the Central Government is satisfied that a practice that was generally prevalent regarding levy of duty of excise (including nonlevy thereof) under section 3 of the Central Excise Act, 1944 (1 of 1944) (hereinafter referred to as the said Act), on softy ice cream and non-alcoholic beverages dispensed through vending machines, falling under Chapters 20, 21 or 22 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), and that such softy ice cream and nonalcoholic beverages dispensed through vending machines were liable to duty of excise which was not being levied according to the said practice during the period commencing on and from the 1st day of March, 1997 and ending with 28th February, 2001. Now, therefore, in exercise of the powers conferred by section 11C of the said Act, the Central Government hereby directs that the whole of the duty of excise payable on such softy ice cream and non alcoholic beverage dispensed through vending machines, but for the said practice, shall not be required to be paid in respect of such softy ice cream and non alcoholic beverages on which the said duty of excise was not being levied during the aforesaid period in accordance with the said practice.”
48. We are afraid we are unable to take this argument into account since such a plea was not urged before the Tribunal in the first place. Given that this is a statutory appeal under Section 35L of the Act, it is not open to either party, at this stage of the appeal, to raise a new ground which was never argued before the Tribunal. Our scrutiny of the arguments advanced has to be limited only to those grounds which were argued by the parties and addressed by the Tribunal in its impugned order. Since, the impugned orders at hand do not reflect the argument raised by the learned counsel for the assessee; we do not find any justification to entertain this submission. Nonetheless, for the sake of argument, even if we assume that this ground had been urged before the Tribunal, in our view, learned counsel’s reliance on this notification is misplaced. Upon a reading of the notification it is clear that the exemption in the notification is granted for the whole of excise duty which was payable on such softy ice cream and non alcoholic beverages dispensed through vending machines, but was not being levied during the relevant period, which is not the case here. In the present case, as aforenoted, three show cause notices had been issued to the assessee alleging that ‘soft serve’ was classifiable under heading 21.05 and attracted duty @ 16%. The show cause notices issued by the revenue also indicated that the assessee was liable to pay additional duty under Section 11A of the Act. This clearly shows that the excise duty was payable by the assessee and was being levied by the revenue. Therefore, the assessee’s case does not fall within the ambit of the said notification and is not eligible for the exemption granted to “softy ice-cream”, dispensed through a vending machine for the relevant period.
49. For the view we have taken, it is unnecessary to examine the issue whether the product in question bears a brand name.
50. Resultantly, the appeals are allowed and the impugned orders of the Tribunal are set aside, leaving the parties to bear their own costs.
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