Lozenges are not excisable under item 1-A(1) of the First Schedule to the Central Excise and Tariff Act, 1944, as they do not fall under any of the categories mentioned in the item, including the category of 'candy'.

The petitioners are, among other things, manufacturers of confectionery items, in their factory situated at Nellikuppam, South Arcot Dt., Tamil Nadu. They held a Central Excise Licence for the manufacture of general confectionery items dutied under item 1-A of the First Schedule to the Central Excise and Tariff Act, 1944 (hereinafter referred to as the 'Act'). In their application for central excise licence made under Rule 173(b) of the Central Excise Rules, they have mentioned 'Lozenges', as one of the items manufactured by the petitioners. These 'Lozenges' prepared by the petitioners were being assessed to the central excise duty as if they fall under item 1-A of the Schedule to the Act. The petitioners state that they have wrongly included in their application and were also paying mistakenly duty on Lozenges as if these Lozenges are also covered under item 1-A(1) of the Schedules. When the mistake was detected, they filed a petition on 20-10-1973 to the Assistant Collector of Central Excise, Pondicherry to delete lozenges from the list of excisable items mentioned in their application filed under rule 173(b) of the Central Excise Rules, and also prayed that they may be permitted not to pay central excise duty thereafter. They have further prayed that the duty collected in the past may also be refunded to them. In this petition, they have detailed the items that might come under item 1-A(1) and contended that Lozenges do not fall within the tariff description of any one of those various specified items mentioned in that entry. In support of their contention, the petitioners furnished the views expressed by certain standard books on confectionery and also the description and the specifications given for some of the items by the Indian Standards Institution. By a one line order dated 8-1-1974, the Assistant Collector held that 'Lozenges' manufactured by the petitioners will fall under the category of 'candy' which is to be assessed as confectionery under tariff item 1-A(1). This was confirmed by the appellate and revisional authorities. It may also be mentioned that both the appellate and revisional authorities also did not give any reason for coming to this conclusion except to state that 'lozenges' is included in the word 'candy' and is assessable to excise duty. It is against these orders, the petitioners have filed the present writ petitions praying for awrit of certiorarito quash the orders of the assessing authorities holding that 'Lozenges' are excisable under Item 1-A(1) and for amandamusdirecting the respondents to dispose of the refund application afresh on the basis that 'Lozenges' are not excisable goods.

2.It may be mentioned at this stage that with effect from 1-3-1975, as stated by the learned Counsel for the petitioners, a residuary entry in 68 was introduced so that even if 'Lozenges' do not come under the description mentioned in item 1-A(1), it will be now excisable under entry 68 with effect from 1-3-1975. There appears to have been a further amendment sometime in 1978, by which item 1-A(1) itself was deleted but these do not concern us and therefore, we need not state anything more than to note the amendments.

3.The learned Counsel for the petitioners contended that though the heading of excisable products in item 1-A of the Schedule is 'confectionery' the description given in item 1-A(1) shows that the products itemnised in that item are exhaustive and that, therefore, in order to attract excise duty, the product will have to fall under anyone or other of the categories mentioned in item 1-A(1). It was then contended by the learned Counsel for the petitioner that the products mentioned in item 1-A(1) show that they could all be brought under one category of confectionery items produced by the process of heating and cooking. In other words, heating and cooking are common elements in the process of manufacturing of everyone of these items. Therefore, in order to bring any particular commodity with