M.N. Chandurkar, Actg. C.J.
1. This is an appeal by the Union of India against the order of the learned Single Judge, who held that a substance which is known as cocoa cake does not fall within item 21(2) of the First Schedule-Import Tariff to the Indian Tariff Act, 1934 (hereinafter referred to as 'the Act'). The process as a result of this cocoa cake is manufactured is not in dispute. This cocoa cake is used for the manufacture of cocoa, chocolates and malted milk foods by the respondents-company.
2. The principal raw material required for the manufacture of cocoa, chocolates and malted milk food is cocoa beans, which are obtained by the process of fermenting and drying the seeds of a tropical or equatorial tree known as The bromine cocoa. These seeds are cleaned, roasted and cracked and the broken pieces of the beans known as 'nibs' are separated from the shells. The nibs are ground and converted into a fine paste, which is called 'mass'. This mass is treated with chemicals and subjected to very high pressure in order to remove the excess fat. The substance which results from this process is referred to as 'cake' as it is in a pressed form. This is also known as cocoa cake and this is the substance with which we are concerned. When it is proposed to use this cocoa cake as low fat cocoa, the residual fat will be around 10%, but when it is proposed to use the residual product as high fat or breakfast cocoa the residual fat will be around 20%. The fat which is removed is known as cocoa butler. The cocoa cake after pulverising and blending with flavors is used for the manufacture of food drinks or a proprietory cocoa powder. The ground paste of the nibs mixed with sugar cocoa butter, flavouring material, lecithin etc. can be ultimately used in the manufacture of chocolate.
3. In 1967 the respondents imported 575 bags of cocoa cake and declared that the said cocoa cake fell within item 18(a) of the First Schedule to the Act. The relevant item 18(a) reads as follows:
Item No. Name of article. Standard rate of duty.
18. Cocoa and chocolate
other than confectionery:
(a) cocoa powder. 60 per cent ad valorem.
The required duty was paid by the respondents. On or about 24th January 1968 the respondents received a short-levy notice wherein it was claimed that the said consignment was assessable under item 21(2) of the First Schedule to the Act in respect of which the appropriate rate of duty was 100%. The respondents were, therefore, called upon to pay the difference amounting to Rs. 30,648-80. Item 21(2) referred to above reads as follows:
Item No. Name of article Standard rate of duty.
All sorts of food not 100 per cent ad valorem.
21(2) otherwise specified.
The respondents had contended that the said article cocoa cake was covered by item 87 of the First Schedule to the Act which is a residuary item as there was no specific item relating to cocoa cake. Alternatively, it was contended by them that the said article fell within item 18(a) of the said Schedule. Finally, it was held in the proceedings regarding short-levy by the Government of India that the cocoa cake could not be covered by item 18(a) but it was covered by item 21(2) and the reason given by the Government of India while so holding was that the cocoa cake fell within the definition of 'food' in the Prevention of Food Adulteration Act which defined 'food' as 'any article used as food drink for human consumption other than drugs and water and includes (a) any article which ordinarily enters into or is used in the consumption or preparation of human loud and (b) any flavouring matter or condiment.' This decision of the Government of India was challenged by the respondents in a petition filed under Article 226 of the Constitution of India.
4. The stand taken by the Union of India was that cocoa cake was ordinarily an article which enters into or is used in the composition or preparation of human food and therefore it fell within item 21(2).
5. The learned Single Judge referred to the affidavit of Dr. D.V. Rege, who was the Head of the Food Technology in the University of Bombay. Dr. Rege has described cocoa cake as 'a lumpy, gritty and unpalatable substance which if eaten or tried to be swallowed would stick to the palate'. The learned Single Judge rejected the contention of the Union of India that reliance could be placed on the definition of 'food' in the Prevention of Food Adulteration Act in support of their contention that cocoa cake being a component of food should also be treated as food for the purpose of item 21(2). The learned Judge found that the said article cocoa cake was not consumed directly and could not be described as an article of food and, therefore, was not covered by item 21(2). The learned Judge, therefore, set aside the order of the Government of India and directed the appellants to refund an amount of Rs. 38,311/- to the respondents. This judgment is now challenged by the Union of India in this appeal.
6. In fairness to the learned Counsel for the appellants, it must be stated that he did not press the argument which was advanced before the learned Single Judge that for construing item 21(2) of the First Schedule to the Act reliance could be placed on the definition of 'food' in the Prevention of Food Adulteration Act. In our view, this was a right concession because the provisions of the Prevention of Food Adulteration Act could be of no assistance to the appellants as that definition could be used only for the purpose of ascertaining the meaning of 'food' referred to in that Act alone.
7. However, while giving up the contention that the Union of India was entitled to rely on the definition of 'food' in the Prevention of Food Adulteration Act, the learned Counsel seemed to adopt the contents of that same definition as part of the argument before us and it was contended before us that since cocoa cake was used as a component of food it should itself be treated as food for the purpose of item 21(2). While construing item 21(2) and ascertaining as to what would be the meaning of 'food' referred to therein, it would be clearly permissible to ascertain whether cocoa cake is understood as food in common parlance. Food in common parlance is a very general term and as defined in Webster's Third New International Dictionary, 'food' is a general term used for what is eaten by man and other creatures for the sustenance of life. It is obvious that the burden to show that cocoa cake fell within item 21(2) was on the Union of India. There is nothing in the affidavit filed on behalf of the Union of India to show that cocoa cake was generally consumed or eaten by man or was by itself treated as an edible substance for human consumption. As a matter of fact, there is evidence to show that before this cocoa cake becomes edible, it has to be subjected to a further process of pulverising and blending with flavors and thereafter it can be used in the manufacture of food drinks or cocoa powder. It may be true that merely because a substance is unpalatable it may not cease to be food, but at the same time it has to be established by the Union of India, if it wanted the substance cocoa cake to be subjected to duty as an item of food, to show that cocoa cake was used as an edible substance by itself. An article of 'food' is not the same as the component of food though there may be instance where a component may also be an article of food and when used for preparation of another article the final product may also be an article of food. It cannot, however, be assumed as a general rule that every component of food will also be food. As we have pointed out, there is nothing on record to show that this article cocoa cake is edible by itself and merely because it is a component of articles which could be called food, it does not by itself become food or can be described as such. The Union of India, in our view, has miserably failed to establish that cocoa cake is an article of food which falls within item 21(2) of the First Schedule to the Act. We do not therefore see any reason to interfere with the view taken by the Learned Single Judge.
8. The appeal must, therefore, fail and it is dismissed with costs. The bank guarantee will stand discharged.