Civil Appeal No 2456 of 1987
From the Order dated 2751987 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal No E 231285 C KK Venugopal R Narain section Ganesh R Shah RK Ram and DN Mishra for the Appellant
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
In this appeal under section 35L of the Central Excise and Salt Act 1944 hereinafter called the Act  the question involved is whether Decoplast manufactured by the Asian Paints India Ltd the appellant herein is plastic emulsion paint 341 and therefore classifiable under Tariff Item 14I3iv of the First Schedule of the Act as plastic emulsion paint or it should be classifiable under Tariff Item No 14Iv that is as paints not otherwise specified
The Customs Excise and Gold Control Appellate Tribunal hereinafter called the CEGAT  by the impugned order challenged in this appeal held that Decoplast is plastic emulsion paint
The appellant felt aggrieved thereby
In so holding the Technical Member of the Tribunal observed that in view of its composition characteristics and uses Decoplast should be considered as emulsion paint
The Judicial Member of the Tribunal was of the view that the Revenue had not adduced any evidence of rebuttal of the evidence adduced by the appellant as the commercial understanding but the evidence adduced by the appellant was intrinsically untrustworthy
Therefore inspite of the affidavits and absence of evidence in rebuttal he agreed with the other member that Decoplast is plastic emulsion paint and the appeal before the Tribunal should be dismissed
It appears that the appellants had filed revision application before the Government of India against the order of the Revenue authorities
Ultimately the same was rejected by the Government of India
It is not necessary to set out in detail all the events
The appellant had moved the High Court of Bombay against the order of the Government of India and the High Court by its order directed as follows The order dated 17th December 1979 passed by the Govt
Of India in revision in the Petitioners  case is set aside inasmuch as the Revision Authorities have not controverted or rebutted the evidence in the form of affidavits relied on by the Petitioners to show that their product could not be regarded as a plastic emulsion paint amongst persons dealing in such products
The Revision order thus failed to follow the well established rule of interpreting entries in the Excise Tariff namely to classify products by their common parlance and trade understanding and not by their scientific or technical meaning
It is necessary that the matter be remanded to the Revision Authorities to decide the same afresh according to law
However as the Revision Authority under the demanded Central Excise and Salt Act has been replaced by the Customs Excise and Gold Control Appellate Tribunal the said Tribunal is directed to 342 hear the Petitioners  Revision Petition and to determine the same as an appeal before it
The Tribunal shall give an opportunity to both the petitioners and the Excise Authorities to rely on any evidence and material either on record or otherwise which they may lead or produce in support of their case
The parties will be given full opportunity of affidavits if any during the hearing
In pursuance to the said order the matter came before the Tribunal
Before the Tribunal it was contended on behalf of the appellant that the manufacture was water thinable paint but the same could not be held to be plastic emulsion paint for the product was not known in the trade as plastic emulsion paint nor was it bought and sold so
According to the appellant the paint essentially comprised of pigment and a binder or a vehicle and that while the binder and the vehicle were interchangeable it was stated that the binder generally referred to solid part which in this case was synthetic resin and the solvent could be water or some other diluent
There was elaborate evidence adduced before the Tribunal on behalf of the appellant
Reference was made to the specifications of plastic emulsion paint as given by ISI
It was contended on behalf of the appellant that Decoplast could not be considered as plastic emulsion paint for reasons inter alia as follow i Plastic emulsion paint comprises of one emulsion as against two contained in Decoplast ii In the case of plastic emulsion drying takes place by evap oration of water whereas in the case of decoplast by oxidation of alkyd iii Trade did not recognise decoplast as plastic emulsion paint iv In the literature published by them decoplast was not described as plastic emulsion paint v Decoplast was substitute for cement paint vi Even though decoplast could be used both for interior and exterior use it was a product inferior to plastic emulsion paint vii In case of plastic emulsion paint primer had to be applied to The surface to be pained while in the case of Decoplast on 343 coating on Decoplast itself serves as a primer
A In support of appellant s contention affidavits had been filed by them and the same were considered in extenso by the Tribunal
Reference has also been made to the Book Outlines of Paint Technology by WM Morgan
On the other hand on behalf of the Revenue it was stated that it was not disputed that Decoplast is a water soluble paint and that it had got two resins in emulsion form namely Polymer Vinyle Acetate and copolymer alkyds
Attention was drawn to the Indian Standard Specification for plastic emulsion paint which is as follow The material shall consist of pigments with suitable extenders in suitable proportions in a medium consisting of any state synthetic polymer emulsion in water with other suitable ingredients as may be necessary to produce a material so also satisfy the requirements of this standard
 Our attention was also drawn to the definition given by ISI which is as under Generally a paint in which the medium is an emulsion  or an emulsion like dispersion of an organic binder in water
Industrially the same is mainly restricted to those paints in which the medium is an emulsion  of a synthetic resin
The medium may also be called a latex by analogy with a natural rubber latex polyvinyl acetat emulsion paint is a typical example
The Tribunal addressed itself to the question whether Decoplast could be considered as plastic emulsion paint in view of i its composition ii its characteristics iii its uses and iv its reputation in trade parlance
It is well settled that the commercial meaning has to be given to the expressions in Tariff items
Where definition of a word has not been given it must be construed in its popular sense
Popular sense means that sense which people conversant with the subject matter with which the Statute is dealing would attribute to it
See CIT Andhra Pradesh vs Ms Taj Mahal Hotel Secunderabad This Court observed in Indo International Industries vs Commissioner of Sales Tax UP  that in interpreting items in statutes like the Excise Act or Sales Tax Acts whose primary object 344 was to raise revenue and for which purpose to classify diverse products articles and substances resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning that is to say the meaning attached to them by those dealing in them
Justice Cameron of the Canadian Exchequer Court in King vs Planter s Co 1951 CLR exhibit 122 and the decision of the United States Supreme Court in Two Hundred Chests of Tea   emphasised that commercial understanding in respect of the tariff items should be preferred
It was observed that the legislature does not suppose our merchants to be naturalists or geologists or botanists
In this case the use of these two items and their composition when analysed revealed that in essence they performed the same functions as plastic emulsion paint does though there was some difference in them
Affidavits of traders and others had been filed
These were examined and accepted by the Technical Member and these were not rejected by the Judicial Member
The Revenue did not adduce any evidence in rebuttal
Therefore in view of the composition characteristics user and how it is known in the trade the Tribunal came to the conclusion that Decoplast was plastic emulsion paint
This is a finding of fact arrived at on relevant and valid materials
There was no misdirection in law
Therefore there is no ground for interference with the said order
In the aforesaid view of the matter we decline to entertain the appeal under section 35L of the Act
The appeal is therefore dismissed
GN Appeal dismissed


Summary:
The appellants were convicted under section 120B and section 224109 of the Indian Penal Code and section 52 Of the Prevention of Corruption Act 1947 by the Court of Special judge constituted under the Criminal Law Amendment Act 1952
it was contended for them that the conviction was bad on the ground inter alia that the pardon tendered to the approver by the District Magistrate under section 337 of the Code of Criminal Procedure by virtue of which he was examined as a witness by the Special judge was without 1219 jurisdiction
The contention was that the provisions Of section 337 were not applicable to the case as the offence under section 52 Of the Prevention of Corruption Act 1947 was punishable with imprisonment which may extend to ten years while section 337 Of the Code of Criminal Procedure enabled a District Magistrate to tender a pardon in the case of any offence triable exclusively by the High Court or a Court of Session or any offence punishable with imprisonment which may extend to ten years 
But under sections 83 and 9 of the Criminal Law Amendment Act 1952 for the purposes of the Code of Criminal Procedure the Court of Special judge is deemed to be a Court of Session trying cases without jury  Held that although the offence was triable exclusively by the Court of Special judge the District Magistrate had authority to tender a pardon under section 337 of the Code of Criminal Procedure as the Court of Special judge was in law a Court of Session