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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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

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  

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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.

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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)  

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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 ice-cream 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.”

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6.It is manifest that the Tribunal based its conclusion on the  

technical meaning and specifications of the product “ice-cream”,  

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  

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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 “ice-cream” 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,  

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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.1, 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, Bombay2, 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.

1  (1984) 4 SCC 540 2  (1990) 2 SCC 203

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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 “ice-cream” 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 :

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0404.11 --Put up in unit containers and  bearing a brand name

Nil

0404.19 --Other Nil

0404.90 --Other Nil

Heading  No.

Sub-heading  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 butter-milk,  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-

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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.3; 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  

3  1993 Supp (3) SCC 716 at page 720

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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  

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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  

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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.4. 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, Akola5, the issue before this Court was whether betel  

leaves could be considered as “vegetables” in the Schedule of the  

4  (1951) C.L.R. (Ex. Court) 122 5  (1962) 1 SCR 279

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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 Singh6, 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

6  (1967) 2 SCR 720  

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“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.7, 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.”

7  (1976) 2 SCC 241

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23. In Shri Bharuch Coconut Trading Co. and Ors. Vs. Municipal  

Corporation of the City of Ahmedabad & Ors.8, 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.9,  

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 well-settled 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.10, this Court has opined thus :

8  1992 Suppl.(1) SCC 298 9  (1985) 3 SCC 284 10  (1989) 1 SCC 150

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“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, Hyderabad11, 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  

11  (1997) 6 SCC 464  

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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, Nagpur12,  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, Hyderabad13, 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  

12  (1996) 9 SCC 402 13  (2004) 9 SCC 136

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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,  

Vadodara14 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.  

14  (1995) Suppl. 3 SCC 1

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31.  Therefore, what flows from a reading of the afore-mentioned  

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  

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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  

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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 ice-cream’, 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.  

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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  

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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  

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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.  

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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  

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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.

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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, Daman15 and Commissioner of Central Excise, Nagpur Vs.  

Shree Baidyanath Ayurved Bhavan Limited16]. The provisions of PFA,  

15  (2011) 2 SCC 601 16  (2009) 12 SCC 419

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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  

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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  

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(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 ‘soft-serve’  

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 ‘soft-serve’ 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:

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“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 non-levy 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 non- alcoholic 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  

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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.

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50. Resultantly, the appeals are allowed and the impugned orders  

of the Tribunal are set aside, leaving the parties to bear their  

own costs.

……..…………………………………. (D.K. JAIN, J.)  

……..…………………………………. (JAGDISH SINGH KHEHAR, J.)

NEW DELHI, NOVEMBER 27, 2012

RS

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ITEM NO.1-A               COURT NO.2             SECTION III

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS

                   CIVIL APPEAL NO. 5307-5308 OF 2003

COMMNR.OF CENTRAL EXCISE,NEW DELHI                Appellant (s)

                VERSUS

M/S.CONNAUGHT PLAZA REST.(P)LTD.N.D.              Respondent(s)

Date: 27/11/2012  These Appeals were called on for       pronouncement of Judgment today.

For Appellant(s) Mr. Arijit Prasad, Adv.                      Mr. P. Parmeswaran,Adv.

For Respondent(s) Mr. Alok Yadav, Adv. Mr.Rajesh Kumar,Adv.

                        -----

Hon'ble Mr. Justice D.K. Jain pronounced the  judgment of the Bench comprising His Lordship and  Hon'ble Mr. Justice Jagdish Singh Khehar.

The appeals are allowed and the impugned orders  of the Tribunal are set aside, leaving the parties to  bear their own costs.     

    [ Charanjeet Kaur ]         Court Master  

          [ Kusum Gulati ]        Court Master  

 [ Signed reportable judgment is placed on the file ]

35

Page 36

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ITEM NO. IN Chambers                             SECTION III

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                     CIVIL APPEAL NO. 5307-5308 OF 2003

COMMNR.OF CENTRAL EXCISE,NEW DELHI                Appellant (s)                  VERSUS M/S.CONNAUGHT PLAZA REST.(P)LTD.N.D.              Respondent(s)

Date: 27/11/2012  These Appeals were taken up in chambers.

CORAM :       HON'BLE MR. JUSTICE D.K. JAIN  HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR   

                           ......                           

In the first page of judgment dated 27th  

November, 2012 pronounced in C.A. Nos. 5307-5308 of  

2003,  cause title shall be read as  follows :

"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

                       WITH CIVIL     APPEAL     NO.     8097     of     2004   

COMMISSIONER OF CENTRAL  EXCISE, DELHI-II

—                 APPELLANT  

VERSUS

M/S CONNAUGHT PLAZA  RESTAURANT (P) LTD.,THROUGH  ITS MANAGING DIRECTOR"

— RESPONDENT

    [ Charanjeet Kaur ]         Court Master  

          [ Kusum Gulati ]        Court Master  

 [ Signed reportable order is placed on the file ]

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                                                                                                          REPORTABLE            IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

"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

O     R     D     E     R        In the first page of judgment dated 27th  

November, 2012 pronounced in C.A. Nos. 5307-5308 of  

2003,  cause title shall be read as  follows :

"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

                       WITH CIVIL     APPEAL     NO.     8097     of     2004   

COMMISSIONER OF CENTRAL  EXCISE, DELHI-II

—                 APPELLANT  

VERSUS

M/S CONNAUGHT PLAZA  RESTAURANT (P) LTD.,THROUGH  ITS MANAGING DIRECTOR"

— RESPONDENT

                             .........................              [ D.K. JAIN, J.]

                            ..........................        [ JAGDISH SINGH KHEHAR,J. ]

NEW DELHI,

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NOVEMBER 27, 2012

39