TMI Blog1979 (12) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... item 1-A(1) of the Schedules. When the mistake was detected, they filed a petition on 20-10-1973 to the Assistant Collector of Central Excise, Pondicherry to delete lozenges from the list of excisable items mentioned in their application filed under rule 173(b) of the Central Excise Rules, and also prayed that they may be permitted not to pay central excise duty thereafter. They have further prayed that the duty collected in the past may also be refunded to them. In this petition, they have detailed the items that might come under item 1-A(1) and contended that Lozenges do not fall within the tariff description of any one of those various specified items mentioned in that entry. In support of their contention, the petitioners furnished the views expressed by certain standard books on confectionery and also the description and the specifications given for some of the items by the Indian Standards Institution. By a one line order dated 8-1-1974, the Assistant Collector held that 'Lozenges' manufactured by the petitioners will fall under the category of 'candy' which is to be assessed as confectionery under tariff item 1-A(1). This was confirmed by the appellate and revisional authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities. On the other hand, the learned Counsel for the respondents contended that emphasis should not be made on the ingredients used in the manufacture or the process of manufacture but the words will have to be understood in the popular or common man's understanding and so understood, there could be no doubt that lozenges could be treated as either sweets or candies. In this connection, the learned counsel for the respondents also relied on the label affixed by the petitioners in marketting the product 'Lozenges' wherein it is stated extra strong mint Lozenges below the words 'Parry sweets". 4. Section 3 of the Act imposed a duty on all excisable goods set forth in the First Schedule to the Act. There are a number of major headings under which a maha number of sub-items are also mentioned in the First Schedule. The first heading is 'food'. Under that, we find a number of items viz. items 1, 1-A, 1-B, 1-C, 1-D, 1-E and 1-F. Each of the items give a description of the goods and the rate of duty leviable in respect of the same. Item 1-A of the First Schedule reads as follows:- "1-A. Confectionery, cocoa powder and chocolates in or in relation to the manufacture of which any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their letter dated 11-10-1974, replied as follows- "(i) Candy is a light, bright and glossy confection made by purling sugar syrup boiled to a thick consistency. In other words, candy is crystallised sugar made by repeated boiling and low evaporation. A lozenge on the other hand is entirely different. Its process of manufacture involves a cold process without any boiling being done, unlike confectionery or candy. The lozenge is made out of finally pulverised sugar or icing sugar with certain binding materials, suitable flavours and colour added, worked up to dough consistency without the aid of heat, rolled flat and then stamped into separate lozenges by cutting. (ii) Usually candy is defined as light, and brilliant confection made by pulling sugar syrup, boiled to a thick consistency. Lozenges are made of sugar, flavoured with essence and coloured to taste. Usually for the preparation of lozenges finely pulverised sugar, glucose syrup and a binder, such as gum tragacanth or liquid calatime is worked up to a dough consistency without the aid of heat, which is rolled flat and then stamped into separate lozenges by cutting. The only difference we see between candy and lozenges i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute, Mysore, who in their letter dated 6-2-1974, have stated - "Usually candy is defined as light and brilliant confection made by pulling sugar syrup, boiled to a thick consistency, lozenges are made of sugar, flavoured will essence and coloured to taste. Usually for the preparation of lozenges, finely pulverised sugar, glucose syrup and a binder such as gum tragacanth or liquid gelatin is worked up to a dough consistency without the aid of heat which is rolled flat and then stamped into separate lozenges by cutting. The only difference we see between candy and lozenges is application of heat. Also probably in the case of candy the ratio of sucrose to glucose may be higher than in lozenges." As may be seen from the informations, specifications, descriptions and manufacturing process in relation to lozenges, no preliminary boiling or cooking of the ingredients is required in the manufacture of lozenges, whereas candies are made only with aid of heat and cooking is involved in the process. Even though the learned Counsel for the respondents is not in a position to deny that there is such a difference in the manufacture of candies and lozenges, he contended that this difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e process referred to in the Indian Standard Institute's specifications and the view expressed by the Indian Standard Institute in their letter dated 11-10-1974, also clearly show that lozenges cannot be brought under the category of 'candies'. It may also be mentioned that in the opinion given by the Indian Standard Institute in their letter dated 11-10-1974, they have also referred to the understanding of the word 'candies' in England and America. In this connection, we may refer to a decision of the Supreme Court reported in Union of India v. Delhi Cloth and General Mills Co. Ltd., A.I.R 1963 S.C. 791, wherein the Supreme Court observed that in technical matter like this, the views expressed by the Indian Standards Institution must by preferred I see from some of the specifications of the Indian Standards Institution produced that the sectional committee which decides these matters are composed of eminent persons in trade, industry and Government as also consumers and other experts. Their views therefore deserve acceptance by court except where there are other strong considerations to the contrary. Having regard to all these facts, I am of the opinion that the view expressed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef for refund relating to the period, prior to 20-10-1973. What the learned Counsel for the petitioner wants to contend is that Rule 11 of the Central Excise Rules enables the petitioners to file an application for refund and such an application will have to be filed only with the Assistant Collector and they need not file any suit. Therefore, to the extent the petitioners could be given relief under Rule 11, the excise authorities should have given them the relief. The rule reads- "No duties or charges which have been paid or have been adjusted in an account current maintained with the Collector under rule 9, and of which repayment wholly or in part is claimed in consequence of the same having been paid through inadvertence, error or mis-construction, shall be refunded (unless the claimant makes an application for such refund under this signature and lodges it with the proper officer) within three months from the date of such payment or adjustment, as the case may be." 11. It is manifest that the petitioners having filed an application for refund on 20-10-1973 will be entitled to a refund of the excise duty mistakenly paid for a period of three years prior to that date. No que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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