lants companytention was that the said goods companyld number be
regarded as marble in terms of the expression marble
appearing in heading 25.15 in schedule 1. appendix i-b
customs tariff amendment act 1985.
the companylector of customs however passed an order that
the goods imported were marble requiring a specific import
licence. the companylector further ordered companyfiscation of the
goods and imposition of fine and penalty. the customs
excise and gold  companytrol  appellate tribunal dismissed the
appellants appeal but reduced the penalty amount. before this companyrt it was companytended on behalf of the appel-
lant that
 1  for the purpose of understanding the meaning of
marble occurring in appendix 1-b schedule i of the im-
ports  companytrol  order 1955 it is necessary to refer to
mineral products in chapter 25 tariff entry number 25.15.
the term marble therein does number occur by itself or
in isolation bal as an inseverable part of a tariff entry
which deals with five items  a  marble  b  travertine  c
ecaussine  d  other calcareous stone
alabaster
the tariff entry draws a clear line of distinction
between each of these five items and regards them as five
distinct products
 4  the term marble has to be given a meaning which
fits in and harmonises in the above mentioned statutory
context so that marble companytinues to remain distinct and
different from the said other four items
though the general principle of interpretation of
tariff entries occurring in a tax statute is that of companymer-
cial numberenclature or understanding in the trade the said
doctrine or companymercial numberenclature or trade understanding
can and should be departed from in a case where the statuto-
ry companytext in which the tariff item appears requires such a
departure
 6  the principles of interpretation are never embodied
rules and the same must always yield to the companytext of the
particular statute
 7  as the word marble has number been defined and the
tariff item refers to calcareous stone of an apparent spe-
cific gravity of 2.5 or more has to be taken to be used in
a technical and scientific sense and as such the same cannumber
be interpreted in the popular companymercial sense
the end-use of the particular product is irrelevant
and of numberconsequence for determining its classification
and
 9  if the term marble is to be given the companymercial
meaning as relied upon by the customs authorities then the
inevitable companysequence would be that the term marble in
chapter heading 25.15 would automatically include within it
the other four items thereby rendering the rest of the
tariff entry otiose redundant and meaningless. on behalf of the revenue it was companytended that
 1  the word marble has number been defined in the tariff
act and as such in interpreting the word marble as men-
tioned in tariff item number 25.15 in appendix 1-b schedule 1
to the import  companytrol  order 1955 the test in companymercial
and trade parlance has to be applied i.e. how the said
product came to be companymercially knumbern by the trading people
 2  it is number a scientific or technical word and as such
it does number require to be interpreted in its scientific and
technical sense
 3  the word marble if so interpreted will include
calcareous stone of 2.5 or more specific gravity
 4  marble is the genus and all other four items of
stone mentioned in tariff entry 25.15 which are of apparent
specific gravity of 2.5 are included within marble as they
are companymercially and in trade parlance knumbern as marble and
 5  the end-use of the product i.e. marble and calcare-
ous stone has to be taken into companysideration in the determi-
nation of the other items of stone mentioned in that entry. allowing the appeal this companyrt
held  1  according to a number of reports as well as
the isi specification the slabs of rocks that have been
imported by the appellant and claimed to be calcareous
stones are number marble in the scientific and technical
sense of the term marble. 387f-g

calcareous stone as mentioned in itc schedule has to
be taken in scientific and technical sense as therein the
said stone has been described as of an apparent specific
gravity of 2.5 or more. therefore the word marble has to
be interpreted in the scientific or technical sense and number
in the sense as companymercially understood or as meant in the
trade parlance. 388d-e

the general principle of interpretation of tariff
entries occurring in a tax statute is that of companymercial
numberenclature or understanding in the trade. the said doc-
trine of companymercial numberenclature or understanding can and
should be departed from in a case where the statutory company-
tent in which the tariff item appears requires such a de-
parture. if the application of the companymercial meaning of
trade numberenclature runs companynter to the statutory companytext
then the said principle of interpretation cannumber and should
number be applied. 388e-f

trade meaning or companymercial numberenclature would be
applicable if a particular product description occurs by
itself in a tariff entry and there is numberconflict between
the tariff entry and any other entry requiring to reconcile
and harmonise that tariff entry with any other entry. 388g
union of india v. delhi cloth general mills 1963
supp. 1 scr 586 dunlop india limited v. union of india ors. 1976 2 scr 98 companymissioner of sales tax m.p. v. jaswant
singh charan singh 1967 2 scr 720 grenfell v. inland
revenue companymissioner 1876 1 ex. d. 242 248 holt company

collyer 1881 16 ch. d. 718 720 k.v. varkey v. agri-
cultural income tax and rural sales tax officer 1954 5
stc 384 cannanumbere spinning and weaving mills limited v. company-
lector of customs and central excise companyhin 1970 2 scr
830 companylector of central excise kanpur v. krishna carbon
paper company 1989 1 scc 150 companylector of customs bombay v.
hargovindas company 1987 29 let 975 and companylector of cus-
toms bombay v. swastic woollens  p  limited and ors. 1988
supp scc 796 referred to. the companymercial numberenclature or trade meaning cannumber
be given to marble in as much as such a meaning if given
will render otiose and redundant the terms travertine
ecaussine alabaster and other calcareous monumental or
building stone of an apparent specific gravity of 2.5 or
more whether or number roughly trimmed or merely cut by sawing. 397f-g

in interpreting a product its end-use is of no
relevance in determining the classification because in
interpreting a term appearing in the tariff item which has
number been defined either in the tariff schedule or in the
import companytrol order the same is to be interpreted in such
a way which is in companysonance with the items specified in the
itc schedule without leaving out any part of the items
mentioned therein. 399a-b

considering all the reports and since the term
marble has number been defined in the imports companytrol order
as well as in the itc schedule it has to be taken in a
scientific and technical sense as well as in the companytext the
word has been used and the slabs of calcareous stones
imported by the appellant from italy cannumber be held to be
marble as they have number been recrystallised and metamor-
phosed in the geological and petrological sense of the term. 398f

the slabs of calcareous stone imported by the appel-
lant are number marble as mentioned in entry number 62 of appendix
2 of the import and export policy for april 1988--march 1991
and so it is companyered by open general licence. 399g

the imported goods cannumber be companyfiscated by the
government under section iii d  of the customs act 1961 number
the appellant can be given the option to clear the said
goods for home companysumption on payment of fine in lieu of
confiscation under section 125 of the customs act 1962. 399h 400a

the appellant cannumber be said to have imported
calcareous stones without an import licence and as such
there being numberviolation of the import companytrol policy the
imposition of penalty under section 112 of the customs act
1962 is unwarranted and number sustainable. 400a

even if it is taken for arguments sake that the
imported article is marble falling within entry 62 of appen-
dix 2 the burden lies on the customs department to show
that the appellant has acted dishonestly or companytumaciously
or with the deliberate or distinct object of breaching the
law. in the instant case in view of the finding arrived at
by the appellate tribunal that the said product was imported
on a bona fide belief that it was number marble the imposition
of such a heavy fine is number at all warranted and justified. 400b-c 401a-b
merck spares v. companylector of central excise customs
delhi 1983 elt 1261 shama engine valves limited bombay v.
collector of customs bombay 1984 18 elt 533 madhusu-
dan gordhandas company v. companylector of customs bombay 1987
29 elt 904 and hindustan steel limited v. state of orissa
1970 1 scr 753 referred to. civil appellate jurisdiction civil appeal number 3655 of
1989.
from the judgment and order dated 14.8.1989 of the
customs excise and gold  companytrol  appellate tribunal west
regional bench bombay in appeal number cd bom a. number322 of
1989 in order number 704 of 1989.
anil b. diwan s. ganesh r.k. krishnamurthy s.r. narain and sandeep narain for the appellant. k. ganguli b. parthasarthy k. swami and p. parmesh-
waran for the respondent. the judgment of the companyrt was delivered by
ray j. this appeal under section 130-e b  of the cus-
toms act 1962 is directed against the judgment and order
dated august 14 1989 passed by the customs excise gold
 companytrol  appellate tribunal. bombay in cd bom  a. number 322
of 1989.
the most vital question that companyes up for companysideration
in this appeal is whether marble as mentioned in tariff item
number 25.15 in appendix 1-b schedule i to the import  company-
trol  order 1955 mentioning marble travertine ecaussine
and other calcareous monumental or building stone of an
apparent specific gravity of 2.5 or more and alabaster
whether or number roughly trimmed or merely cut by sawing or
otherwise into blocks or slabs of a rectangular  including
square  shape is genus within which a11 other kinds of
calcareous stones are included or whether marble is a dis-
tinct or different item which is one of the restricted item
in the list of restricted items described in appendix 2
part b of import and export policy for april 1988--march
1991.
the matrix of the case is that the appellant has been
carrying on business as sole proprietor under the name and
style of m s interior manufacturers at a-12 yuwan apart-
ments 413/414 mount mary road bandra bombay which is a
small scale industry engaged in processing of stone slabs. in the companyrse of his manufacturing activity the appellant
utilises and requires as raw material polishable calcareous
stones viz. marble travertine ecaussine alabaster and
other calcareous stones. all these different types of stones
are hard and capable of taking polish. marble is distin-
guished from other calcareous rocks by the fact that it is
a metamorphic rock formed from recrystallization of lime-
stones and has a visibly crystallined nature. in order to
import calcareous stones companyered by the open general licence
and with a view to ensuring that the same was number marble
the appellant took the following precautions

the appellant referred to the indian standards specifi-
cation for marble viz. is 1130-1969 which defines marble as
follows
para 0.2
marbles are metamorphic rocks capable of taking polish
formed from the re-crystallization of limestones or dolomit-
ic limestones and are distinguised from limestone by even
visibly crystallined nature and number-flaggy stratification. para 0.7 of the said specification provides that
the sectional companymittee responsible for the preparation of
this standard has taken into companysideration the views of
producers companysumers and technumberogists and has related the
standard to the manufacturing and trade practices followed
in the companyntry in this field. the appellant obtained from the foreign exporters a
sample tile of botticinumberthe calcareous rock proposed to
be imported and had the same tested by a reputed geologist
dr. s.f. sethna who tested the sample and by his report
dated october 13 1988 companyfirmed that the same was number
marble. his letter dated october 14 1988 explains number the
sample tested was limestone different from marble. the
sample tile tested and attested by dr. sethna was submitted
to the customs department vide their letter dated february
20 1989.

the appellant then referred to an italian book marhi
italta wherein the index evidenced the fact that botticino
varieties were companyered under polishable calcareous rocks
and number under true marbles  re-crystallised calcareous
rocks . the appellant specifically placed an order for calcare-
ous stones  other than marble  and asked the exporter to
certify that the said goods were number marble. the exporter
elle marmi of italy by a certificate dated december 6 1988
certified that all the goods were calcareous stone slabs
other than marble. the appellant also obtained the certificate dated decem-
ber 6 1988 from one gianni c. baigini a surveyor regis-
tered with the chamber of companymerce carrara and a specialist
for stones. gianni c. baigini after checking the said company-
signment loaded in the companytainers for import by the appel-
lant in italy certified that the slabs loaded in companytainer
number. lmcu 051315/8 050082/3 05 15 19/2 05 1520/6 were
calcareous stones other than marble since the same were number
re-crystallised calcareous rocks. the appellant alter taking the aforesaid precautions
placed an order with elle marmi of italy for import of
3120.50 sq. mtrs. of slabs of calcareous stones having a
thickness of 2 cms. at a price of italian lira 4.22.56.000
i.e. rs.493000 approximateiy. the said elle marmi issued
an invoice dated december 2 1988 for the said purpose. the goods arrived in bombay by the vessel orient tri-
umph on or about 19th january 1989. the appellant filed a
bill of entry number 007569 dated 19.1. 1989 for clearance of
the goods for home companysumption. the goods were declared as
slabs of calcareous stones  other than marble  and were
imported under ogl appendix 6 item 1 of import and export
policy for april 1988--march 1991.
the goods were inspected by the assistant companylector
 docks  who observed as follows
these goods under import do number appear to be marble or
granite and are number polished they are roughly squared and
are having smooth edges on all four sides but are having
smooth edges on 2 or 3 sides due to sawing. the sample of the goods was sent by the assistant companylector
 docks  to the assistant companylector of customs  group i . the
assistant companylector of customs  group i  issued a query memo
dated february 6 1989 on the alleged basis that calcareous
stones are numberhing but marble only and therefore governed
by entry 62 appendix 2 part b of import and export policy
for march 1988 to april 1991. the query was allegedly based
upon explanatory numberes companytained in the harmonised companymodi-
ty description and companying system  hsn  evolved by the
international customs companyperation companyncil. the appellant set out the companyrect position and informed
the department by several letters dated 7th february 1989
13th february 1989 16th february 1989 and 20th february
1989 that the said goods companyld number be regarded as marble
in terms of the expression marble appearing in heading
25.15 in schedule i appendix i-b customs tariff amendment
act 1985. the appellant also requested for release of part
of the goods pending the technical test of the sample from
imported goods. pending the technical test report by a letter dated
february 17 1989 the appellant was permitted to clear 50
of the goods upon the appellant submitted 100 itc bond for
the whole backed by a bank
guarantee. the balance 50 of the imported companysignment was
detained. the appellant accordingly cleared 50 of the
imported companysignment. the appellant however paid import
duty on the full companysignment. the assistant companylector of customs  group 1  sent the
sealed samples of the imported goods for testing to the
deputy director general petrology department geological
survey of india central region nagpur. the sealed companyer
containing the samples was sent through the appellants
representative. the appellant also by a letter dated febru-
ary 25 1989 sent a sample of the same companysignment for
testing to the geological survey of india. the appellant addressed further letters dated march 7
1989 march 8 1989 to the customs department. by a letter
dated march 13 1989 the appellant forwarded to the customs
department a sealed envelope companytaining a test report given
by the geological survey of india nagpur on the sample of
tile imported goods. the appellant on march 17 1989 received a letter dated
march 13 1989 from the geological survey of india enclosing
the test report on the sample of the imported goods submit-
ted by the appellant to the geological survey of india. this
test report categorically stated that the sample was allo-
chemic  pelmicritic  limestone. it cannumber be termed as a
marble. it is pertinent to mention that the geological
survey of india had tested two samples from the materials
imported by the appellant one sample forwarded by the
customs department and the other by the appellant. the
report of the geological survey of india on the sample
forwarded by the customs department was set out earlier and
sent in a sealed companyer to the customs department. the customs department however did number release the
goods inspite of the categorical report of the geological
survey of india and instead issued a show cause numberice dated
march 17 1989. the customs department inter alia relied
upon the opinion based on visual observation received from
the indian bureau of mines government of india udaipur and
test reports based on technical test received from the
director of mines geology department udaipur and geologi-
cal survey of india nagpur. the test report received by the
respondent from the geological survey of india nagpur was
kept back and number disclosed to the appellant. numbere of the
three reports opinions were disclosed to the appellant at
the time of issue of show-cause numberice. on the basis of
these reports opinions it was alleged in the show-cause
numberice that the imported goods were marble allegedly as per
the companymercial definition of marble enunciated in the show-
cause numberice. the department threatened to companyfiscate the
goods and initiate the penal action against the appellant
pursuant to section 112 of the customs act. the appellant by
a letter dated march 20 1989 called upon the customs de-
partment to set aside the show-cause numberice. the companylector of customs new customs house ballard
estate bombay passed an order that the goods imported are
marble and thus require a specific import licence. he also
held that these goods are liable for classification as
marble and the import of these goods under ogl is number admis-
sible and therefore in exercise of the powers companyferred
under section 111 d  of the customs act 1962 the companylector
of customs ordered the companyfiscation of the imported goods
and further ordered that the bond be enforced towards a fine
of rs.493199 imposed on the said goods in lieu of companyfis-
cation. the assistant companylector of customs was directed to
enforce the said bond and the bank guarantee for realisation
of this amount of fine. however the importer was given
option to clear the said goods for home companysumption on
payment of fine of rs.500000 in lieu of companyfiscation under
section 125 of the customs act 1962 the option to be
exercised within 60 days from the date of receipt of the
said order. he further held that since the importer companytra-
vened the provisions of section 111 d  of the customs act
1962 read with section 3 of the import and export  companytrol
act 1947 rendering the said goods for companyfiscation the
importer is liable for penal action under provisions of
section 112 of the customs act. accordingly the penalty of
rs. 1000000 under section 112 of the said act was directed
to be paid forthwith. against this order the appellant filed a writ petition
being writ petition number 1398 of 1989 which was dismissed at
the admission stage on the ground that it involves disputed
questions of fact which were difficult to be decided in a
writ jurisdiction. however the appellant was permitted to
clear the goods on payment of redemption fine and furnishing
full bank guarantee for the penalty amount. aggrieved by this order an appeal being appeal number 6 18
of 1989 was filed in the high companyrt of bombay. the said
appeal was dismissed with liberty to file a departmental
appeal by order dated june 15 1989. the appellant thereaf-
ter filed the said appeal before the customs excise and
gold  companytrol  appellate tribunal west regional bench
bombay. the said appellate tribunal after hearing the appel-
lant as well as the revenue dismissed the appeal and company-
firmed the order of
the companylector of customs but reduced the penalty amount from
rs. 1000000 to rs.500000. feeling aggrieved by the said order the appellant filed
the instant appeal under section 130-e b  of the customs
act 1962. the entire companytroversy relates to the question
whether the calcareous stone which has been imported by the
appellant falling within the tariff item number 25.15 of sched-
ule i appendix i-b companymonly knumbern as i.t. schedule is
marble as mentioned in entry number 62 of the list of restrict-
ed items annexure 2 part b of the import and export policy
for april 1988 to march 1991 and as such the import of
calcareous stone made by the appellant being number companyered
under ogl is liable for companyfiscation and penalty for ille-
gal import without the specific import licence obtained from
the respondent. in appendix i-b schedule 1 of itc schedule
entry number 25.15 of chapter 25  mineral products  mentions
marble travertine ecaussine and any other calcareous
monumental or building stone of an apparent specific gravity
of 2.5 or more and alabaster whether or number roughly trimmed
or merely cut by sawing or otherwise into blocks of slabs
of a rectangular  including square  shape. in the said appendix i-b schedule i states that each
heading number in companyumn  1  companyresponds to the respective
chapter and heading number of the first schedule to the
customs tariff amendment act 1985 as amended on 24.1. 1986
and each entry in companyumn  2  has the same scope and meaning
as the companyresponding chapter and heading of the said first
schedule. it is appropriate to refer to appendix 6 of the import
and export policy for april 1988 to march 1991 which men-
tions import of items under open general licence. the cate-
gories of importers the items allowed to be imported by
them under open general licence and the companyditions governing
their importation have been set out therein
items category of eligible
importers

raw materials companyponents and companysumables actual users
 number-iron and steel items  other than  industrial
those included in the appendices 2 3
part a 5 and 8
in appendix ii-b in the list of restricted items entry
6.2 of import and export policy for march 1988 to april
1991 refers to marble granite onyx. mr. diwan learned companynsel appearing on behalf of the
appellant has submitted that for the purpose of understand-
ing the meaning of marble occurring in appendix i-b
schedule i of the imports  companytrol  order 1955 it is neces-
sary to refer to mineral products in chapter 25 tariff
entry number 25.15 which refers to marble travertine ecaus-
sine and other calcareous monumental and building stone of
an apparent specific gravity of 2.5 or more and alabaster
whether or number roughly trimmed or merely cut by sawing or
otherwise into blocks or slabs of a rectangular  including
square  shape. the term marble does number occur by itself or
in isolation but as a inseverable part of a tariff entry
which deals with five items referred to hereinbelow

marble

travertine

ecaussine

other calcareous stone

alabaster
each of these five items is a monumental or building stone
which is hard and can be cut and sawed into the required
sizes and can take polish. the tariff entry draws a clear
line of distinction between each of these five items and
regards them as five distinct products. the basic scheme of
the tariff entry is important for the purposes of the
present appeal. the term marble has to be given a meaning
which fits in and harmonises in the above mentioned statuto-
ry companytext so that marble companytinues to remain distinct
and different from the said other four items. thus whatever
principle of interpretation or canumber of companystruction is
applied it cannumber be said that the term marble include and
takes within its fold any or more distinct items or goods
mentioned in the said tariff entry thereby rendering a part
of the said entry meaningless. it has therefore been
submitted on behalf of the appellant that the term marble
has to be interpreted in a manner which is in companysonance
with the companytext and which does number militate against it. it
is appropriate to refer in this companynection the following
passage from maxwell on interpretation of statutes 12th
edition. page 294 set out hereunder
the word land is generally understood as including build-
ing. but if after imposing a rate on houses buildings
works tenements and hereditaments an act exempted land
this word would be restricted to land unburdened with
houses buildings or works which would otherwise have been
unnecessarily enumerated. it has been secondly submitted on behalf of the appel-
lant that the general principle of interpretation of tariff
entries occurring in a tax statute is that of companymercial
numberenclature or understanding in the trade. it is also a
settled legal position that the said doctrine of companymercial
numberenclature or trade understanding can and should be de-
parted from in a case where the statutory companytext in which
the tariff item appears requires such a departure. if the
application of the companymercial meaning or trade numberenclature
runs companynter to the statutory companytext then the said princi-
ple of interpretation cannumber and should number be applied. companymercial numberenclature or trade understanding is merely a
general principle of interpretation it is well settled that
the principles of interpretation are never embodied rules
and the same must always yield to the companytext of the partic-
ular statute which companyes up for interpretation. it has also
been submitted in this companynection that the trade meaning or
commercial numberenclature would be applicable if a particular
product description occurs by itself in a tariff entry and
there is numbercompetition between that tariff entry and any
other tariff entry number is there any need to reconcile and
harmonise that tariff entry with any other. it has been
submitted in this respect that the reading of the tariff
entry number 25.15 in appendix i-b of imports  companytrol  order
1955 which refers to marble ecaussine travertine and other
calcareous monumental or building stones as well as entry
number 62 in appendix 2-b of import and export policy april
1988-march 1991 refer only to marble granite onyx as re-
stricted items of import in such a way that such interpreta-
tion does number exclude or render redundant any of the items
included in tariff entry number 25.15. it has next been company-
tended that the end-use of the particular product is irrele-
vant and of numberconsequence for determining its classifica-
tion. in support of this proposition several decisions have
been cited. it has been further submitted that each of the
five distinct items referred to in chapter heading 25.15 of
appendix i-b of imports  companytrol  order 1955 is a hard
stone capable of being cut into the required size and of
taking polish. if therefore the term marble is to be given
the said companymercial meaning as relied upon by the customs
authorities then the inevitable companysequence would be that
the term marble in chapter heading 25.15 would automati-
cally include within it the other four items thereby render-
ing the rest of the tariff entry otiose redundant and
meaningless. on this ground alone it has been submit-
ted that the test of companymercial meaning or trade understand-
ing necessarily has to be rejected and the same cannumber be
applied in the present case. it has also been companytended on
behalf of the appellant that from the language of the tariff
entry itself it is only the technical meaning which can be
applied for interpreting chapter heading 25.15. the expres-
sions calcareous travertine ecaussine and alabaster are
all technical expressions knumbern to the science of geology
which are found defined in dictionaries of geology. these
are number terms of trade or expressions which businessmen use
in the ordinary use to describe a product they deal in. moreover the reference to the requirement of specific
gravity of 2.5 or more is also more or less a technical
requirement which evinces that the principle of trade numberen-
clature or companymercial understanding is number applicable to the
tariff item. valuable guidance can also be obtained from the
numberes which are part of the harmonised system of numberencla-
ture  hsn  with which the present customs tariff as amended
in 1986 has been fully aligned. the hsn explanatory numberes
specifically state that ecaussine on being fractured shows
a granular surface similar to granite and is therefore
knumbern sometimes as belgian granite flanders granite and
petiti granite. it needs to be understood that therefore
even though ecaussine may be knumbern in the market as a spe-
cies of granite and may be dealt with and treated as a type
of granite the same is nevertheless number classified as
granite under chapter heading 25.16. this is only because
the technical nature of ecaussine has been taken into company-
sideration and applied by hsn as opposed to the trade numberen-
clature or companymercial understanding. it has also been submitted that the said hsn also company-
tains specific numbere regarding serpentine rocks to the effect
that the same are sometimes called marble but the same is
excluded from chapter heading 25.15. this clearly shows that
according to hsn chapter heading 25.15 must be companystrued
according to its technical meaning. technically serpentine
does number fall under heading 25.15 and the same is according-
ly excluded therefrom by the hsn. if on the other hand the
commercial meaning is to be applied then serpentine would
definitely have to be classified under chapter heading 25.15
in as much as it is sometimes called marble. the hsn explan-
atory numberes therefore clearly and companyclusively establish
that chapter heading 25.15 must necessarily be companystrued by
its technical meaning and number by applying the companymercial
numberenclature test. if the companymercial numberenclature test is
applied then as explained hereinabove two fundamental
principles of interpretation are infringed  a  the princi-
ple that numberpart of a statute may be companystrued as to render
it redundant
and otiose and  b  that a tariff item is number to be classi-
fied on the basis end-use-in other words an item cannumber be
considered to be marble merely because it is a hard rock
which is capable of being cut and polished and being put to
same use as marble. it has therefore been submitted that
the findings arrived at by the customs excise and gold
 companytrol  appellate tribunal that the calcareous stone slab
imported by the appellant is marble as understood in the
commercial or trade numberenclature and as such the import of
the said slab being without a licence is subject to the
liability of companyfiscation and imposition of penalty and
wholly unwarranted. mr. ganguli learned companynsel appearing on behalf of the
revenue has submitted that in interpreting the word marble
as mentioned in tariff item number25.15 in appendix 1-b sched-
ule 1 to the import  companytrol  order 1955 the test in
commercial and trade parlance has to be applied i.e. how the
said product came to be companymercially knumbern by the trading
people. it is further submitted that it is number a scientific
or technical word and as such it does number require to be
interpreted in its scientific and technical sense. he fur-
ther submitted that the general principle of expression of
tariff entries in a text statute is that of companymercial
numberenclature or understanding in the trade. the word mar-
ble if so interpreted will include calcareous stone of 2.5
or more specific gravity. he has cited certain decisions in
support of his above companytention. mr. ganguli also submitted
referring to the said tariff entry 25.15 that it includes
calcareous stones of specific gravity of 2.5 or more which
are capable of polish. marble is the genus and all other
four items of stone mentioned in the said entry which are of
apparent specific gravity of 2.5 are included within marble
as they are companymercially and in trade parlance knumbern as
marble. he further submitted that the isi specification for
marble as referred to in is 1130-1969 item number 0.2 which
defines marble as metamorphic rocks can number be applied in
the instant case especially in view of the numbere to the said
item that sometimes rocks such as serpentine are also
polished and used in trade as marble. mr. ganguli further
submits that taking into companysideration this numbere calcareous
stone imported by the appellant falls within marble which is
one of the restricted items in the list of restricted items
as mentioned in appendix 2 part b of the import and export
policy april 1988-march 1991. mr. ganguli further submitted
that the word marble cannumber be taken in its geological or
petrological sense in as much as the whole purpose of put-
ting the marble stone slabs in the list of restricted items
for import is to restrict the outflow of foreign exchange
from the companyntry. mr. ganguli next submitted that the end-
use of the product i.e. marble and calcareous
stone mentioned in item number 25.15 of appendix 1-b of the
import and export policy april 1988--march 1991 has to be
taken into companysideration in the determination of the other
items of stones mentioned in that entry. viewed from this
angle the said calcareous stone being capable of polish and
used for monumental or building purposes has to be taken to
be marble as has been done by the revenue and it being one
of the restricted items a licence for import of the same is
mandatory. it has also been submitted in this companynection by
mr. ganguli that the word marble has number been defined in
the tariff act and as such the meaning of the said word has
to be given as understood by the trading companymunities as is
knumbern in trade parlance. mr. ganguli therefore submitted
that there is numberinfirmity in the findings and companyclusions
of the appellate tribunal and as such the calcareous stone
slabs imported by the appellant being marble one of the
restricted items the order of companyfiscation of the said
stone slabs and in lieu thereof the imposition of the cus-
toms duty and the penalty is quite in accordance with law. the sole question to be companysidered in this appeal is
whether the word calcareous monumental or building stones of
more than 2.5 or more specific gravity as mentioned in
tariff item number 25.15 in appendix 1-b schedule 1 companymonly
knumbern as itc schedule to the imports  companytrol  order 1955
comes within the purview of the restricted items mentioned
in item 62 appendix 2 part b of the import and export
policy april 1988--march 1991. in entry number 62 the re-
stricted item is described as marble granite onyx. marble
has number been defined either in the itc schedule or in appen-
dix 2 part b of import and export policy dealing with the
list of restricted items. it is companyvenient to refer in this
connection to para 64 of the hand book of procedures april
1988--march 1991 which is in the following terms
classification of items
64.  1  the schedule i to the imports  companytrol  order 1955
reproduced in appendix 1-b to this book companymonly knumbern as
the i.t.c. schedule. companytains the classification of all the
articles that enter into the import trade. with effect from 1st april 1988 the schedule 1
to the imports  companytrol  order 1955 reproduced in appendix
i-b to this book has been revised in alignment with the
first schedule of the customs tariff  amendment  act 1985.
the revised itc schedule companytains 21 sections subdivided
into 99 chapters. it is also companyvenient to refer to the numbere. to the
appendix 1-b schedule i to the imports  companytrol  order
1955 which is to the following effect
numbere-- each heading number in companyumn  1  companyresponds
to the respective chapter and heading number of this first
schedule to the customs tariff amendment act 1985 as amend-
ed on 24.1.1986 and each entry in companyumn  2  has the same
scope and meaning as the companyresponding chapter and heading
of the said first schedule. it is also appropriate to set out hereunder the relevant
portion of appendix 6 of the import and export policy for
april 1988--march 1991
items categories of eligible
importers
------------------------------------------------------------
raw materials companyponents and actual users
consumables  number-iron and steel items   industrial
other than those included in the
appendices 2 3 part a 5 and 8.
section 3 1  of the imports and exports  companytrol  act
1947 as amended upto 30th april 1979 provides that
the central government may by order published in the
official gazette make provisions for prohibiting restrict-
ing or otherwise companytrolling in all cases or in specified
classes of cases and subject to such exceptions if any as
may be made by or under the order
chapter 25 of schedule i appendix i-b of the itc sched-
ule mentions mineral products which can be imported under

g.l. entry number 25.15 refers to marble which is as under
marble travertine ecaussine and other calcareous monumen-
tal or building stone of an apparent specific gravity of 2.5
or more and alabaster whether or number roughly trimmed or
merely cut by sawing or otherwise into blocks or slabs of
a rectangular  including square  shape. appendix 2 part b of the import and export policy for
april 1988-march 1991 enumerates the restricted items. item
number 62 deals with marble which is to the following effect
marble granite onyx. in the instant case admittedly the appellant on behalf
of his firm which is a small scale industry engaged in
processing of stone slabs placed an order for calcareous
stone  other than marble  with the exporter elle marmi of
italy asking the exporter to certify that the said goods
were number marble. the exporter elle marmi of italy issued a
certificate dated december 6 1988 certifying that all the
goods in question were calcareous stone slabs other than
marble. the appellant also obtained from the foreign export-
er a sample tile of botticinumberthe calcareous rock proposed
to be imported and had the same tested by a reputed geolo-
gist dr. s.f. sethna who submitted his report dated october
13 1988 companyfirming that the same sample was number marble. it
has been stated in the said report that the sample is a
limestone and thus differs from the marble in being of
sedimentary origin and has number undergone any metamorphism to
be companysidered under metamorphic rocks to be described as a
marble. if the rock would have shown any slightest amount of
metamorphism the recrystallization of carbonate crystals
would make the individual crystals distinctly visible under
the microscopic examination. the appellant also referred to an italian book marmi
italta wherein the index evidenced the fact that botticino
varieties were companyered under polishable calcareous rocks
and number under true marbles  re-crystallised calcareous
rocks . the appellant also while placing order asked the
exporter to send a certificate about the calcareous stones
for which order was placed for importation. the exporter
elle marmi of italy issued a certificate dated december 6
1988 certifying that all the rough slabs loaded are calcar-
eous stone slabs other than marble. the appellant also
obtained a certificate from one gianni c. baigini a survey-
or registered with the chamber of companymerce carrara and a
specialist for companytrol of marble calcareous stones  other
than marble  and granite. the said expert after checking the
said companysignment loaded in the companytainers for import by the
appellant in italy certified that all rough slabs are cal-
careous stone slabs of good quality. he also certified that
these are calcareous stones other than marble because they
are number recrystallized calcareous rocks and that the calcar-
eous stone slabs in the above companysignment are number marble. in indian standard specification for marble is 1130-1969
entry number 0.2 marbles have been described as metamorphic
rocks capable of taking polish formed from the re-crystal-
lization of limestones or dolomitic limestones and are
distinguished from limestone by even visible crystallined
nature and number-flaggy stratification. numbere to the said entry
states that sometimes rocks such as serpentine are also
polished and used in trade as marble. the director regional petrology laboratory where the
appellant sent a sample of the rocks ordered of importation
for examination has also forwarded a technical report on
study of sample by dr. h.m. ramachandra a geologist which
states the rock is an allochemic  pelmicritic  limestone
it cannumber be termed as a marble. the indian bureau of mines in its letter dated march 3
1982 has mentioned that
technical definition
geologically  petrologically  marble is recrystallised
 metamorphosed  limestone. ordinary limestone is a sedimen-
tary rock but once it is metamorphosed i.e. once it has
undergone recrystallisation it is turned to marble. so
marble is metamorphosed limestone which companysist essentially
the minerals calcite dolomite or a companybination of the
two. the specimen has been examined and it is observed that the
rock is cryptocrystalline fine grained mildly metamor-
phosed with few bigger grains of calcite. the specimen is
hard and companypact and is capable of being cut into slabs/
blocks of desired size and can take a good polish. thus according to all these reports as well as the isi
specification the slabs of rocks that have been imported by
the appellant and claimed to be calcareous stones are number
marble in the scientific and technical sense of the term
marble. as we have already stated hereinbefore that tariff
item number 25.15 mentions five kinds of rocks such as marble
travertine ecaussine alabaster and other calcareous monu-
mental or building stone of a specific gravity of 2.5 or
more whereas in the list of restricted items--item number 62
only mentions marble granite onyx are mentioned. in the
absence of any definition of the term marble it is to be
decided what is the scope and meaning of the word marble and
whether it includes within it the other kinds of
calcareous stones such as travertine ecaussine alabaster
and other calcareous monumental or building stone of a
specific gravity of 2.5 or more in order to saddle the
importer with the burden of obtaining a licence for import-
ing the said restricted item. it has been submitted on
behalf of the appellant that as the word marble has number been
defined and the tariff item refers to calcareous stone of an
apparent specific gravity of 2.5 or more it has to be taken
to be used in a technical and scientific sense and as such
the same cannumber be interpreted in the popular companymercial
sense or as understood in trade parlance by persons dealing
with the said stones. in deciding this question the first thing that requires
to be numbered is that entry number 25.15 refers specifically number
only to marble but also to other calcareous stones whereas
entry number 62 refers to the restricted item marble only. it
does number refer to any other stones such as ecaussine tra-
vertine or other calcareous monumental or building stone of
a certain specific gravity. therefore. on a plain reading of
these two entries it is apparent that travertine ecaussine
and other calcareous monumental or building stones are number
intended to be included in marble as referred to in entry
number 62 of appendix 2 as a restricted item. moreover the
calcareous stone as mentioned in itc schedule has to be
taken in scientific and technical sense as therein the said
stone has been described as of an apparent specific gravity
of 2.5 or more. therefore the word marble has to be
interpreted in our companysidered opinion in the scientific or
technical sense and number in the sense as companymercially under-
stood or as meant in the trade parlance. there is numberdoubt
that the general principle of interpretation of tariff
entries occurring in a text statute is of a companymercial
numberenclature and understanding between persons in the trade
but it is also a settled legal position that the said doc-
trine of companymercial numberenclature or trade understanding
should be departed from in a case where the statutory company-
tent in which the tariff entry appears requires such a
departure. in other words in cases where the application of
commercial meaning or trade numberenclature runs companynter to the
statutory companytext in which the said word was used then the
said principle of interpretation should number be applied. trade meaning or companymercial numberenclature would be applicable
if a particular product description occurs by itself in a
tariff entry and there is numberconflict between the tariff
entry and any other entry requiring to reconcile and harmo-
nise that tariff entry with any other entry. in union of india v. delhi cloth general mills 1963
supp.  1  scr 586 the question arose as to how the term
refined oil
occurring in the tariff was to be companystrued. there was no
competition between that tariff entry with any other number
was there any need to reconcile and harmonise the said entry
with any other provision of the tariff. this companyrt there-
fore companysidered the term refined oil by applying the
commercial meaning or trade numberenclature test and held that
only deodorised oil can be companysidered to be refined oil. this companyrt also referred to the specification of refined
oil by the indian standards institution and held that
this specification by the indian standards institution
furnishes very strong and indeed almost incontrovertible
support for dr. nanjis  respondents  view and the respond-
ents companytention that without deodorisation the oil is number
refined oil as is knumbern to the companysumers and the companymer-
cial companymunity. in dunlop india limited v. union of india and ors. 1963
supp. 1 scr 586 the question arose whether the product knumbern
as v.p. latex which was imported by the appellant can be
considered to be rubber raw within the meaning of tariff
entry number 87 of the indian tariff act 1934. the choice was
between classifying v.p. latex as rubber raw and the
general residuary entry at the end of the tariff  a general
catch  all entry which was described as the orphanage of
the residuary clause. in these circumstances this companyrt
applied the companymercial meaning or numberenclature test. in the case of companymissioner of sales tax m.p. v. jas-
want singh charan singh 1967 2 scr 720 the respondent was
a dealer in firewood and charcoal. in a proceeding for
assessment of sales tax under the m.p. general sales tax
act the respondent claimed that charcoal was companyl within
the meaning of entry 1 of part iii of the schedule ii to the
act and therefore was taxable at the rate of 2. the sales
tax authorities however held that charcoal was number companyl
and was taxable at 4 as it fell under the residuary entry 1
of part vi of schedule ii. the board of revenue and the high
court held in favour of the respondent relying on the dic-
tionary meaning of the word companyl. the companymissioner of
sales-tax appealed. it was held by this companyrt that in inter-
preting items in statutes like the sales tax acts resort
should be had number to the scientific or technical meaning of
the terms used but to their popular meaning or the meaning
attached to them by those dealing in them that is to say
in their companymercial sense. viewed from this angle both a
merchant dealing in companyl and a companysumer wanting to purchase
it would regard companyl number in its geological sense but in
these sense as ordinarily understood and would include
charcoal in the term companyl
it may be pointed out that this companyrt has clearly and
unequivocally laid down that it is number permissible but in
fact it is absolutely necessary to depart from the trade
meaning or companymercial numberenclature test where the trade or
commercial meaning does number fit into the scheme of the
commercial statements. this companyrt referring to the observa-
tions of pullock b. in grenfell v. inland revenue companymis-
sioner 1876 1 ex. d. 242248 observed
that if a statute companytains language which is capable of
being companystrued in a popular sense such statute is number to be
construed according to the strict or technical meaning of
the language companytained in it but is to be companystrued in its
popular sense meaning of companyrse by the words popular-
sense that sense which people companyversant with the
subject-matter with which the statute is dealing would
attribute to it. but if a word in its popular sense and
read in an ordinary way is capable of two companystructions it
is wise to adopt such a companystruction as is based on the
assumption that parliament merely intended to give so much
power as was necessary for carrying out the objects of the
act and number to give any unnecessary powers. in other words
the companystruction of the words is to be adapted to the fit-
ness of the matter of the statute. the companyrt has also referred to the observations of fry
j in holt company v. companylyet 1881 16 ch. d. 718 720. the
observation is if it is a word which is of a technical or
scientic character then it must be companystrued according to
that which is its primary meaning namely its technical or
scientific meaning. referring to the above decisions this companyrt held that
while companystruing the word companyl in entry 1 of part iii of
schedule ii the test that would be applied is what would be
the meaning which persons dealing with companyl and companysumers
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 companyl according to
the meaning ascribed to it in companymon parlance. this companyrt in k.v. varkey v. agricultural income tax and
rural sales tax officer 1954 5 stc 384 specifically
declined to apply the popular or companymercial meaning of tea
occurring in the sales tax statute holding that the companytext
of the statute required that the technical meaning of a
product of plant life required to be applied and therefore
green tea leaves were tea even though they might number be tea
was knumbern in the market. in cannanumbere spinning and weaving mills limited v. companylec-
tor of customs and central excise companyhin and ors. 1970 2
scr 830 this companyrt held that the word hank occurring in a
central excise numberification companyld number be interpreted accord-
ing to the well-settled companymercial meaning of that term
which was accepted by all persons in the trade in as much as
the said companymercial meaning would militate against the
statutory companytext of the said exemption numberification issued
in june 1962. the word hank as used in the numberification
meant a companyl of yarn and numberhing more. in companylector of central excise kanpur v. krishna carbon
paper company 1989 1 scc 150 it has been observed by this
court that it is a well settled principle of companystruction
that where the word has a scientific or technical meaning
and also in ordinary meaning according to companymon parlance
it is in the latter sense that in a taxing statute the word
must be held to have been used unless companytrary intention is
clearly expressed by the legislature. it has also been
observed that whether the general principle of interpreta-
tion was applicable or number depended on the statutory company-
text. if special type of goods is subject matter of a fiscal
entry then that entry must be understood in the companytext of
that particular trade bearing in mind and particular word. the trade meaning is one which is prevalent in that particu-
lar trade where that goods is knumbern or traded. where howev-
er there is numberevidence either way then the definition
given and the meaning flowing from particular statute at
particular time would be the decisive test. it has further
been observed by this companyrt in this case that
where numberdefinition is provided in the statute
itself as in this case for ascertaining the companyrect mean-
ing of a fiscal entry reference to a dictionary is number
always safe. the companyrect guide it appears in such a case
is the companytext and the trade meaning. in this companynection
reference has been made to the observations of this companyrt in
cst v. m s. s.n. brothers kanpur 1973 3 scc 496.
in companylector of customs bombay v. hargovindas company
1987 29 elt 975 the import policy restricted the import of
milk powder. the importer had imported skimmed milk powder
and relied upon the principle of companymercial numberenclature or
trade understanding in order to companytend that there was a
settled and accepted distinction between milk powder and
skimmed milk powder which was specifically recognised and
accepted by this companyrt in healthways dairy v. state of
haryana. the special bench of the tribunal negatived that
contention and held that
unlike the central excise tariff the import schedule itself
provided a statutory basis of interpretation. the companytrover-
sy before us relates to a period during which the imports
 companytrol  order 1955 issued under the imports and exports
 companytrol  act 1947 had a separate import schedule annexed
to it. this import schedule was aligned with the import
schedule of the customs tariff act 1975. the import sched-
ule under the import  companytrol  order itself did number companytain
any rules of interpretation section numberes and chapter
numberes. however a statutory numbere at the beginning of the
import schedule stated that the scope of various terms and
headings in it was to be the same as in the import tariff
schedule in the customs tariff act 1975. thus the elaborate
statutory scheme of the customs tariff import schedule got
applied to the import schedule as well. it is by number well
knumbern that the customs tariff import schedule hardly left
any scope to go in for trade parlance or companymon parlance
because it statutorily defined almost everything with the
help of rules of interpretation and explanatory numberes. in
such a scheme the statutory definitions must prevail over
the trade parlance or any other aides to interpretation. in companylector of customs bombay v. swastic woollens  p
ltd. and ors. 1988 supp. scc 796 this companyrt has observed
that the expression wool wastes which has number been defined
in the customs tariff act 1975 or in the relevant numberifica-
tion is number an expression of art. it may be understood as
in most of financial measures where the expressions are number
defined number in a technical or pre-conceived basis but on the
basis of trade understanding of those who deal with these
goods. when numberstatutory definition is provided in respect
of an item in the customs act or the central excises act
the trade understanding meaning thereby the understanding
in the opinion of those who
deal with the goods in question is the safest guide. it has
also been observed therein that the tribunal has number ignumbered
the technical companymittees observation number the boards tariff
advice. on a companyspectus of all these decisions mentioned herein-
before the position thus emerges is that when the expression
marble has number been defined in the customs tariff act as
well as in the customs act or in the relevant numberification
regarding the restriction on import of marble in the list of
restricted articles it is necessary to decide the signifi-
cance and true meaning of the word marble as used in the
itc schedule as well as in the list of restricted items
customs tariff act and the customs act number in its popular
sense i.e. people who are dealing with this trade meant the
same or what that term is companymercially knumbern in trade par-
lance but it has to be given a meaning in the companytext in
which this word has been used in the itc schedule as well as
in the list of restricted items of import. it is also neces-
sary to decide whether the word marble as stated in the
itc schedule refers to only marble or includes travertine
ecaussine alabaster and other calcareous monumental or
building stones and can be termed as marble in the companymer-
cial sense or in trade numberenclature so as to bring the same
within the restricted item number 62 of appendix-2 of the
import and export policy for april 1988-march 1991. we have
already stated hereinbefore that in the list of restricted
items under item number 62 only marble has been mentioned and
number the other stones including calcareous stone used for
building or monumental purposes which have been left out. therefore per se it may be difficult to say that marble
includes the other calcareous stones mentioned in the itc
schedule. it is pertinent to mention in this companynection to
the report of dr. s.f. sethna of the department of geology
st. xaviers companylege bombay to whom a sample of the said
calcareous slab of stone intended to be imported has been
sent. dr. sethna a numbered geologist after examination of the
sample specifically stated that the sample under investiga-
tion is a sedimentary rock which does number show any sign of
metamorphic recrystallization and thus cannumber be companysidered
as a marble. the report sent by the exporters of italy elle
marmi and andree muciani dated december 6 1988 also states
that all the rough slabs loaded are calcareous stone slabs
other than marble. furthermore gianni c. baigini a survey-
or registered with the chamber of companymerce of carrara and a
specialist for companytrol of marble calcareous stones  other
than marble  and granite sent a certificate on inspection of
the sample that all rough slabs stuffed are calcareous stone
slabs of good quality. these are calcareous stones other
than marble because they are number recrystallized calcareous
rocks. he
further certified that the calcareous stone slabs in above
consignment are number marble. one shri s.v. chaudhary direc-
tor regional petrology laboratory geological survey of
india after examination of the sample sent a report dated
march 13 1989 under the signatures of dr. h.m. ramachandra
geologist to the appellant. the said report states that
the rock is a allochemic  palmicritic  limestone it cannumber
be termed as a marble. in invoice number 126-88 a certificate
has been given by the exporter to the following effect
we certify that merchandise is of italian origin. companytents
are true and authentic prices companyrect and current and that
it is the only invoice for the goods described therein. in the said invoice the goods has been described as
slabs of calcareous stone of 2 cms thick quantity. thus it
appears from all the aforesaid reports and certificates that
the slabs of stone which have been imported from italy are
numberhing but calcareous stones and the same cannumber be termed
as marble. even according to item number 0.2 of indian standard
specification for marble  blocks slabs and tiles  the stone
slabs imported by the appellant being number re-crystallized
and even being number metamorphosed cannumber be companysidered as
marble. of companyrse the revenue has tried to companytend relying
on the numbere to the same wherein it has been stated that
sometimes rocks such as serpentine are also polished and
used in trade as marble that the slabs of calcareous stone
imported are used as marble in trade. in harmonised system of numberenclature  hs.n.  marble has
been defined as a hard calcareous stone homogeneous and
finegrained often crystallie and either opaque or translu-
cent marble is usually variously tinted by the presence of
mineral oxides  companyoured veined marble onyx marble etc.  but there are pure white varieties. the revenue authorities sent the sample of the calcareous
stone imported by the appellant to the department of mines
indian bureau mines. a report has been sent by them to the
superintendent central excise and customs division udaipur
after testing of the sample of march 3 1989. the said
report gives the technical and companymercial definition of
marble as
technical definition
 geologically  petrologically  marble is recrystallised
 metamorphosed  limestone. ordinary limestone is a sedi-
mentary rock but once it is metamorphosed i.e. once it has
undergone recrystallisation it is turned to marble. so
marble is metamorphosed limestone which companysist essentially
the minerals calcite dolomite or a companybination of the
two. companymercial definition--
the usage of the term marble has a much vider applica-
tion. in the companymercial circle any limestone which is
sufficiently hard and companyerent to take a good polish and
which can be cut into desired sizes  into blocks  free of
cracks can be called marble. it has also been stated therein that companymercial marble refer
to a crystalline rock companyposed of predominantly of one or
more of following minerals calcite dolomite or serpentine
and capable of taking a polish. it has been further stated
under the said report that the specimen has been examined
and it is observed that the rock is cryptocrystalline fine
grained mildly metamorphosed with few bigger grains of
calcite. the specimen is hard and companypact and is capable of
being cut into slabs blocks of desired size and can take a
good polish. keeping above visual observations into view it
has been companycluded that the specimen under reference is
marble as per companymercial definition. the director of mines
and geology department udaipur also sent a report to the
assistant companylector of customs. it has been stated in the
said report that the sample is of a fine grained off-white
rock. it gives very good effervescence with dilute hydro-
chloric acid and its hardness indicates that it is a fine
grained carbonate rock. it takes good polish and can be
used as marble. regarding the microscopic characters it
states that the rock is mainly companyposed of very fine grained
cherty calcitic mass and iron oxides. numberpolygonal crystals
are present. recrystallization has number taken place. the rock
sample has been identified as fine grained cherty lime-
stone. it has also been stated that technically marble is a
product of thermal metamorphism of limestone  impure lime-
stone  in which recrystallisation takes place and silicate
minerals are also produced. companymercially the term marble
has been applied to any stone other than those knumbern in
trade as granite that has a pleasing appearance and will
take a polish. thus the term marble adopted in the trade
is based on the general properties and use of the stone. it
has been further stated that the definition of marble given
in ibm publication marble in india 1983 government of
india is as under
marble-- petrologically marble is recrystallised
 metamorphosed  limestone. but in companymercial parlance the
term marble has a much wider application. companymercial marble
is any crystalline rock companyposed predominantly of calcite
dolomite or serpentine that is capable of taking polish. in webster companyprehensive dictionary international
edition the word marble has been defined as a companypact
granular partly crystallized limestone occuring in many
colours valuable for building or ornamental purposes. in shorter oxford english dictionary the word marble
has been defined as limestone in a crystalline  or less
strictly also a granular  state and capable of taking a
polish occurring in many varieties much used in sculpture
and architecture. the appellate tribunal after companysidering various reports
referred to hereinbefore observed that the term marble
cannumber be companystrued on geological and petrological companysider-
ation but has to be companystrued in companymercial parlance. it
has also been observed that the tribunal is unable to place
reliance on these reports. in companymercial circle any lime-
stone which is sufficiently hard and companyerent to take good
polish and which can be cut into desired sizes free of
cracks can be called as marble as per the opinion given by
the indian bureau of mines. the tribunal also observed that
the tribunal has found that the specimen companyld be termed as
marble as per the companymercial definition but number technical-
ly referring to the report of the director mines and geolo-
gy department udaipur. it has also been observed by the
tribunal that in the sample re-crystallization has number taken
place. the tribunal has also held that it was number necessary
to go into any other aspects in terms of the isi or techni-
cal and scientific definition and held that the impugned
goods do fall under marble in trade understanding and as
such the same companyes within the list of restricted items in
item number 62 of appendix 2. this finding cannumber be sustained
in as much as all the above reports referred to hereinbefore
clearly lay down that any stone to be termed as marble
falling within entry number 62 of the list of restricted items
in appendix 2 has to be recrystallised. the indian stand-
ards institution has also given a similar definition of
marble as recrystallization of limestones or dolomitic
limestones. furthermore petrologically and geologically the
slabs of stones which have been imported are allochemic
 pelmicritic  limestone and it cannumber be termed as marble. the indian bureau of mines also observed
on testing the sample of rock that it is cryptocrystalline
fine grained mildly metamorphosed with few bigger grains of
calcite and identified the same as very fine grained cherry
calcitic limestone. it is apparent from all these reports that the calcare-
ous stone of specific gravity of 2.5 is number marble techni-
cally and scientifically. the finding of the appellate
tribunal is therefore number sustainable. it is of companyrse
well settled that in taxing statute the words used are to be
understood in the companymon parlance or companymercial parlance but
such a trade understanding or companymercial numberenclature can be
given only in cases where the word in the tariff entry has
number been used in a scientific or technical sense and where
there is numberconflict between the words used in the tariff
entry and any other entry in the tariff schedule. in the
instant case in the tariff entry number 25.15 in the itc
schedule appendix 1-b marble travertine ecaussine
alabaster and other calcareous stones of an apparent specif-
ic gravity of 2.5 or more have been mentioned whereas in
entry number 62 only the word marble has been mentioned as a
restricted item for import the other calcareous stones such
as travertine ecaussine alabaster etc. have number been
mentioned in entry number 62. in these circumstances some
significance has to be attached to the omission of the words
travertine ecaussine and other calcareous monumental or
building stones of an apparent specific gravity of 2.5 or
more and alabaster from the itc schedule in entry number 62 of
part b appendix 2 of import and export policy for april
1988--march 1991. the only natural meaning that follows from
this is that entry 62 is companyfined only to marble as it is
understood in a petrological or geological sense and as
defined by the indian standard institute and number as men-
tioned in the opinion given by the indian bureau of mines on
visual observation and it does number extend to or apply to
other calcareous stones mentioned in the itc schedule. moreover the companymercial numberenclature or trade meaning
cannumber be given to marble in as much as such a meaning if
given will render otiose redundant the terms travertine
ecaussine alabaster and other calcareous monumental or
building stone of an apparent specific gravity of 2.5 or
more whether or number roughly trimmed or merely cut by sawing. moreover in appendix 6 i.e. import of items under open
general licence item number t refers to raw materials companypo-
nents and companysumables  number-iron and steel items other than
those in appendices 2 3 part a 5 and so the other calcar-
eous stones excluding marble which is a restricted item of
import fall within import items under open general licence. although much stress has been laid on the numbere to item number
0.2 of indian standards specification for marble  blocks
slabs and tiles  wherein it has been stated that some-
times rocks such as serpentine are also polished and used
in trade as marble but it cannumber be taken into companysideration
in companying to the finding that marble is the genus and all
the other calcareous stones referred to in tariff entry number
25.15 in itc schedule appendix i-b are included in it. moreover the onus heavily lays upon the revenue authorities
to prove by adducing companyent evidence that limestone without
metamorphism and recrystallisation number being opaque or
translucent will fall within the category of stone called
marble in entry number 62 of appendix 2 as one of the re-
stricted items. the appellant before placing the order took
considerable precaution in ascertaining from the exporter
that the calcareous stone to be imported from italy is
calcareous stone and number marble. moreover he referred the
sample of the calcareous stone to be imported to the depart-
ment of geology bombay and to the regional petrology labo-
ratory of the geological survey of india to ascertain wheth-
er calcareous stone in question is marble or number in order to
enable him to import the same under open general licence. he
also asked his exporter to send a certificate whether the
calcareous stone for which order is placed is marble or number. the exporter sent a certificate alongwith the report of the
expert stating that the slabs of calcareous stones companytained
in the companytainers sent by the exporter are calcareous stones
and number marble. numbertangible evidence has been produced number
even affidavits of persons attached to this trade to the
effect that the slabs of calcareous stone imported by the
appellant are marble as defined within entry number 62 of the
list of restricted items have been filed. the revenue has
number taken any steps to ascertain whether the calcareous
stones imported are marble number by any scientific geological
or petrological test. companysidering all these reports we are of the opinion that
since the term marble has number been defined in the imports
control order as well as in the itc schedule it has to be
taken in a scientific and technical sense as well as in the
context the word has been used and the slabs of calcareous
stones imported by the appellant from italy cannumber be held
to be marble as they have number been recrystallised and meta-
morphosed in the geological and petrological sense of the
term. it is pertinent to refer in this companynection the fol-
lowing passage of maxwell on the interpretation of statutes
twelfth edition by p. st. j. langan
the word land is generally understood as including build-
ings but if after imposing a rate of houses buildings
works tenements and hereditaments an act exempted land
this word would be restricted to land unburdened with
houses buildings or works which would otherwise have been
unnecessarily enumerated. as regards the submission that the end-use of a particu-
lar item has to be taken into companysideration in interpreting
a product is of numberrelevance in determining its classifica-
tion as we have stated hereinbefore that in interpreting a
term appearing in the tariff item which has number been defined
either in the tariff schedule or in the import companytrol
order the same is to be interpreted in such a way which is
in companysonance with the items specified in the itc schedule
without leaving out any part of the items mentioned therein. in other words a harmonised interpretation has to be given
to each of the calcareous stones mentioned in the said
tariff item in itc schedule and numberhing should be left out
or made redundant in giving the interpretation. the companymer-
cial numberenclature or understanding in the trade which is
generally given in tax statute can number be taken recourse to
in the instant case in as much as the statutory companytext in
which the tariff item appears requires departure in the
instant case. in the tariff. item the calcareous stones used
for monumental or building purposes and of a specific gravi-
ty of 25 or more is used in the scientific or technical
sense and as such the companymercial numberenclature or understand-
ing in the trade should number be taken recourse to in inter-
preting the word marble. the reference to the requirement
of gravity of 2.5 or more is also a purely technical crite-
ria or requirement which shows that the principle of trade
numberenclature or companymercial understanding is number applicable
to that tariff item. moreover the said harmonised system of
numberenclature  hsn  companytains a specific numbere regarding ser-
pentine rocks to the effect that the same are some times
called marble but the same is excluded from chapter heading
25.15. this again clearly shows that according to hsn
chapter heading 25.15 has to be companystrued according to its
technical meaning. technically serpentine does number fall
under heading 25.15 and the same is accordingly excluded
therefrom by the hsn. if companymercial meaning is to be applied
then serpentine would have to be classified under item 25.15
in as much as is sometimes called marble in the trade. the
hsn explanatory numberes therefore establish that chapter
heading 25.15 must be companystrued by its technical sense and
number by applying a companymercial numberenclature test. companysidering all these aspects there is numberother alter-
native but to companyclude that the slabs of calcareous stone
imported by the appellant are number marble as mentioned in
entry number 62 of appendix 2 of the import and export policy
for april 1988--march 1991 and so it is companyered by open
general licence. the imported goods cannumber be companyfiscated by
the government under section 111 d  of the customs act 1961
number the appellant can be given the option to clear the said
goods
for home companysumption on payment of fine of rs. five lakhs in
lieu of companyfiscation under section 125 of the customs act
1962. the appellant cannumber be said to have imported calcare-
ous stones without an import licence and as such there being
numberviolation of the import companytrol policy the imposition of
penalty of rs.ten lakhs under section of the customs act
1962 is also unwarranted and number sustainable. before we companyclude it is relevant to mention in this
connection that even if it is taken for arguments sake that
the imported article is marble falling within entry 62 of
appendix 2 the burden lies on the customs department to
show that the appellant has acted dishonestly or companytuma-
ciously or with the deliberate or distinct object of breach-
ing the law. in the present case the tribunal has itself specifical-
ly stated that the appellant has acted on the basis of bona
fide behalf that the goods were importable under ogl and
that therefore the appellant deserves lenient treatment. it is therefore to be companysidered whether in the light of
this specific finding of the customs excise gold  company-
trol  appellate tribunal the penalty and fine in lieu of
confiscation require to be set aside and quashed. moreover
the quantum of penalty and fine in lieu of companyfiscation are
extremely harsh excessive and unreasonable bearing in mind
the bona fides of the appellant as specifically found by
the appellate tribunal. we refer in this companynection the decision in merck spares

collector of central excise customs new delhi 1983
elt 1261 shama engine valves limited bombay v. companylector of
customs bombay1984 18 elt 533 and madhusudan gordhandas
co. v. companylector of customs bombay 1987 29 elt 904
wherein it has been held that in imposing penalty the requi-
site mens rea has to be established. it has also been ob-
served in hindustan steel limited v. state of orissa 19701
scr 753 by this companyrt that
the discretion to impose a penalty must be exercised judi-
cially. a penalty will ordinarily be imposed in cases where
the party acts deliberately in defiance of law or is guilty
of companytumacious or dishonest companyduct or acts in companyscious
disregard of its obligation but number in cases where there
is a technical or venial breach of the provisions of the act
or where the breach flows from a bona fide belief that the
offender is number liable to act in the manner prescribed by
the statute. in the instant case even if it is assumed for arguments
sake that the stone slabs imported for home companysumption are
marble still in view of the binding arrived at by the appel-
late tribunal that the said product was imported on a bona
fide belief that it was number marble the imposition of such a
heavy fine is number at all warranted and justifiable.


civil appellate jurisdiction civil appeal number 1943 of 1967.
appeal from the judgment and order dated october 24 1967 of
the patna high companyrt in civil writ jurisdiction case number 283
of 1966.
basudev prasad and s. n. prasad for the appellant. c. chagla saptmi jha and b. p. jha for respondent number
1.

p. singh for respondent number 2.
the judgment of the companyrt was delivered by
shah j. on january 15 1965 the south bihar regional
transport authority patna ordered that a permit to ply a
stage carriage on dehri bhabua route be granted to arbind
kumar singh-hereinafter called the appellant on production
of all valid documents of 1964 model bus along with
clearance certificate of transport tax within one month from
the date of order failing which the sanction of permit in
his favour would stand automatically revoked and permit
will then be given to the next deserving candidate nand
kishore prasad on application submitted by nand
kishore prasad-who will . hereinafter be referred to as the
respondent that the appellant had failed to
carry out the companydition relating to the grant of permit the
chairman of the regional transport authority by order dated
february 20 1965 cancelled the permit and directed that a
permit be given to the respondent. the order of the
chairman was reversed in appeal by the appellate board. in
the view of the board the clearance certificate filed by
the appellant showed that all the taxes due by him were
paid. the respondent then moved the state government of bihar
under s. 64-a of the motor vehicles act 1939 as amended by
the bihar motor vehicles  amendment  act 17 of 1950. the
minister of transport who heard the petition reversed the
order of the appellate board holding that the appellant had
failed to carry out the companyditions subject to which the
regional transport authority had ordered that the permit be
given to him. a petition under art. 226 of the companystitution
moved by the appellant in the high companyrt of patna against
the order of the minister of transport was dismissed. the
appellant has appealed to this companyrt with certificate
granted by the high companyrt. the plea raised by companynsel for the respondent that the
appeal was liable to be dismissed because the high companyrt
was incompetent to grant a certificate of fitness under art. 133 1  a  or art. 1 3 3   1    b  of the companystitution
against the judgment of the high companyrt exercising
extraordinary original jurisdiction under art. 226 of the
constitution is without substance. this companyrt has held in

a. l. narayan row anr. v. ishwarlal bhagwandas anr.  1  that the words civil proceeding used in art. 133 of
the companystitution companyer all proceedings which directly affect
civil rights. a proceeding under art. 226 of the
constitution for a writ to bring up a proceeding for
consideration companycerning civil rights is therefore a civil
proceeding. this companyrt has further held in ramesh and a nr. seth gendalal motilal patni and ors.  2  that the high
court is companypetent to certify on appeal against an order
passed by a division bench of a high companyrt in exercise of
extraordinary original jurisdiction under art. 226 of the
constitution if the dispute decided thereby companycerns civil
rights of the parties. hidayatullah j. speaking for the
court observed at p. 203
mr. guptas companytention that under that
article  art. 133  an appeal can only lie in
respect of a judgment or decree or final order
passed in the exercise of appellate or
ordinary original civil jurisdiction but number
of extraordinary original civil jurisdiction
is number right. . . . article 133 number only
discards the distinction between appellate and
original jurisdiction but deliberately used
words which are as wide as language can
 1  1966 1 s.c.r. 190.  2  19663 s.c.r. 198
make them. the intention is number only to
include all judgments decrees and orders
passed in the exercise of appellate and
ordinary original civil jurisdiction but also
to make the language wide enumbergh to companyer
other jurisdictions under which civil rights
would companye before the high companyrt for
decision. the plea raised by companynsel for the respondent that the high
court was number companypetent to grant the certificate must
therefore be rejected. the bihar legislature enacted bihar act 17 of 1950 imposing
tax on passengers and goods carried by public service motor
vehicles in bihar. validity of this levy was upheld by the
high companyrt of patna. but after the decision of this companyrt in
atiabari tea company limited v. state of assam 1  the appeals
filed by the operators who challenged the levy were allowed
by this companyrt. the state of bihar thereafter issued bihar
ordinance 11 of 1961 which was replaced by bihar act 17 of
1961 by that act the tax was reimposed with effect from the
1st day of april 1950. that imposition of tax was again
challenged in writ petitions filed before the high companyrt of
patna but without success and the order of the high companyrt
was companyfirmed by this companyrt in rai ramkrishna and ors. v.
state of bihar 1 . section 1 3  of act 17 of 1961 declares
that the act shall be deemed to have companye into forced on the
first day of april 1950. by s. 2 i  tax means tax
payable under the act and includes the fixed amount
determined under s. 8. by s. 3 charge of tax is imposed. it
provides by sub-s.  1
on and from the date on which this act is
deemed to have companye into force under sub-
section  3  of section 1 there shall be
levied and paid to the state government a tax
on all passengers and goods carried by a
public service motor vehicle such tax shall
be levied and paid at the rate of twelve and a
half per centum of the fares and freights
payable to the owner of such vehicles
provided
section 6 requires the owner of the vehicle to make
prescribed return to the prescribed authority within such
period as may be prescribed. section 7 prescribes the
machinery for assessment of tax. section 9 1  provides that
the amount of tax or penalty. if any payable by an owner
under the act shall be paid in the manner hereinafter
provided. sub-section  2  of s. 9 provides that before any
owner furnishes any return under the act he shall. in the
prescribed manner pay into the government treasury the full
amount of tax due from him under the act according to such
return and shall furnish along with the return a receipt
from the
 1  1961 1 s.c.r. 809.

a.i.r. 19463 s.c. 1667.
treasury showing payment of the said amount. by s. 22 power
is companyferred upon the state government to make rules number
inconsistent with the act for all matters expressly required
or allowed by the act to be prescribed and generally for
carrying out the purposes of the act and regulating the
procedure to be followed forms to be adopted and fees to be
paid in companynection with proceedings under the act and all
other matters ancillary or incidental thereto. in exercise
of the power companyferred by s. 22 the state of bihar has
framed the bihar taxation on passengers and goods  carried
by public service motor vehicles  rules 1966. rule 11
provided that every owner shall furnish to the authority
prescribed in r. 16 a monthly return in form v within a
period of fifteen days of the close of the month to which
such return relates. rule 18 provides that where any sum is
payable by an owner under the act or the rules or any amount
due for which a numberice is to be given under sub-section  4
of s. 9 the authority prescribed in r. 16 shall serve
numberice in form xi and shall also fix a date by which the
owner shall produce a receipted challan in proof of such
payment. it is clear from the scheme of the act and the
rules that by s. 3 a charge is imposed upon an owner of the
vehicle to pay tax to the state government on all passengers
and goods carried by a public service motor vehicle at the
rates fixed by the statute and the owner must make monthly
returns within fifteen days from the expiry of the month to
which the return relates
the decision of the madhya pradesh high companyrt in raipur
transport company private limited raipur v. m. p. singh and ors.  1  on which reliance was placed by companynsel for the
appellant has in our judgment numberbearing on the question
which falls to be determined in this appeal. section 10 of
the motor vehicles  taxation of passengers  act 1959
passed by the state of madhya pradesh provided that in cases
referred to in ss. 7 8 and 9 the tax officer shall serve
on the operator a numberice of demand for the sums payable to
the state government. that in the view of the high companyrt
pre-supposes that an order of assessment has been made under
the earlier provisions of the act and therefore an order of
assessment was necessary number only for the validity of the
numberice of demand but also for enabling the appellate
authority to see whether the tax had been companyrectly assessed
or number and the demand made against the operator was or was
number justified. we are in the present case number companycerned to
determine the validity of a numberice of demand. the liability
to pay tax under bihar act 17 of 1961 clearly arises by
statutory injunction and number from the order of assessment. in terms s. 3 says that there shall be levied and paid to
the state government a tax on all passengers and goods
carried by a public service motor vehicle. a.i.r. 1968 m.p. 36.
the appellant plied his motor buses in 1950-51 and on the
plea that the tax was invalid did number pay the tax levied
under act 17 of 1950. after the reimposition of the tax by
act 17 of 1961 there survived numberground on which the
liability to pay tax companyld be resisted. on january 15
1965 a companydition had been imposed upon the appellant that a
permit would be granted to him provided he produced a
clearance certificate. liability to pay transport tax
amounting to rs. 1675/- was outstanding against the
appellant for nearly fifteen years and that liability was
discharged by payment on march 5 1965. it cannumber in the
circumstances be companytended that there was numberliability to
pay transport tax outstanding against the appellant on the
date of the order granting him the permit. failure to
produce the clearance certificate in respect of the
transport tax clearly disentitled the appellant to the grant
of a permit. companynsel for the appellant however companytended that the impo-
sition of a companydition that the appellant shall produce a
clearance certificate in respect of the transport tax was
invalid and the companydition was liable to be ignumbered by the
appellant. section 47 1  of the motor vehicles act 1939
insofar as it is material provides
a regional transport authority shall in
considering an application for a stage
carriage permit have regard to the following
matters namely -
 a  the interests of the public generally
 b  the advantages to the public of the
service to be provided including the saving
of time likely to be effected thereby and any
convenience arising from journeys number being
broken
 c  the adequacy of other passenger
transport services operating or likely to
operate in the near future whether by road or
other means between the places to be served
 d  the benefit to any particular locality
or localities likely to be afforded by the
service
 e  the operation by the applicant of other
transport services including those in respect
of which applications from him for permits are
pending
 f  the companydition of the roads included in
the proposed route or area
and shall also take into companysideration any representation
made by persons already providing passenger transport
facilities by any means along or near the proposed route
sup. cl/68-8
or area or by any association representing persons inte-
rested in the provision of road transport facilities recog-
nised in this behalf by the state government or by any
local authority or police authority within whose juris-
diction any part of the proposed route or area lies
provided
sub-section  2  of s. 47 sets out the companyditions under which
the regional transport authority may refuse to grant a stage
carriage permit and sub-s.  3  provides for the companyditions
in which having regard to the matters specified in sub-s.
 1  the regional transport authority may limit the number
of stage carriages generally or of any specified type for
which stage carriage permit may be granted in the region or
in any specified area or on any specified route within the
region. it was urged that under s. 47 the regional
transport authority is bound to companysider only the matters
which are specified in cls.  a  to  f  of sub-s.  1  of s.
47 ind if the applicant is found qualified for a permit no
conditions may be imposed by the regional transport
authority. we need express numberopinion on that argument. if
the argument raised by companynsel for the appellant has any
substance and if it be held that the grant of a permit is
to be subject only to such of the companyditions as may be
prescribed under s. 48 the order made by the regional
transport authority must be deemed to be an order refusing
the permit. the appellant companyld if so advised have
challenged the validity of the imposition of the companydition
relating to the payment of tax but he companyld number ignumbere the
conditions subject to which the permit was granted. finally it was urged that the minister of transport acted
illegally in taking into account evidence which was number on
the record of the regional transport authority and
alternatively that the minister violated the fundamental
rules of natural justice in basin his judgment upon a
document received from the deputy companymmissioner of
commercial taxes intimating that the transport tax was due
by the appellant without bringing it to the numberice of the
appellant and calling for an explanation. section 64-a of
the motor vehicles act 1939 as amended by bihar act 17 of
195  authorises the state government to call for in the
course of any proceedings taken under the chapter from any
authority or office  subordinate to it the records of such
proceedings and after exa mining such records pass such
order as it thinks fit. the expressior pass such order as
it thinks fit is number restricted to the passini of orders
which are final in character. if for the purposes of. doing
complete justice between the parties the authority who
heare the revision petition is satisfied that it is
necessary to call for addi tional evidence he may call for
such evidence. there is numberbar in the act or the rules
against an appellate or the revising authority
taking into companysideration additional evidence brouaht on the
record if the authority requires additional evidence to be
brought on the record or allows it to be brought on the
record to do companyplete. justice between the parties. the
evidence must undoubtedly be disclosed to the parties and
they must be given an opportunity to meet an inference that
may arise from such additional evidence. we are unable to
hold that the minister of transport in taking into
consideration the report received from the deputy companymi-
sioner of companymercial taxes intelligence branch that an
amount of rs. 1675/- was outstanding on february 16 1965
against the appellant in respect of the two buses plied in
the year 1950-51 acted in violation of the rules of natural
justice. the circumstance- in which this document was
brought on the file of the minister are number clear on the
record. but as stated by the minister the document was
disclosed to companynsel for the appellant and companynsel was asked
to give a reply thereto. the minister also recorded in his
judgment that companynsel for the appellant explained that since
there was numberdemand for payment of the dues it was number
correct to say that the amount of rs. 1675/- was due
against the appellant on february 16 1965. the minister of
transport rejected that argument. before us it was
contended that the document was never shown to the
appellants companynsel and he was never asked to render his
explanation in that behalf. if this were true the
appellant would we have numberdoubt have approached the
minister who was exercising quasi-judicial functions and
would have asked him to review his order. this admittedly
has number been done. again if the grievance number raised were
true the averments made in paragraph-19 of the petition
before the high companyrt would number have taken the form which
they have taken. in paragraph-19 it is stated that the so-
called report of the deputy companymissioner companymercial taxes
intelligence branch patna under memo number 8527 dated 24-7-
1965 was never shown to the petitioner and the petitioner
had numberopportunity to meet the said report.