Trade parlance controls classification of a protein-rich nutrient product, keeping it outside the milk food entry.

The expression "milk foods" in entry 14 of Notification No. 17/70 was construed in its trade and industry sense, not by technical composition alone. Applying trade parlance, the majority held that SPERT was a protein-rich concentrated nutrient supplementary food and that the department had not shown it was known in the market as a milk food. On that evidence, the product did not fall within the entry and was not liable to excise duty under it.

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Issues: Whether the product SPERT was covered by entry 14 of the Schedule to Notification No. 17/70 dated 1-3-1970 as a milk food and therefore liable to duty.

Analysis: The majority construed entry 14 in its textual setting and held that the expression "milk foods" had to be understood in the sense in which the trade and industry would ordinarily understand it. The product was found to be a protein-rich concentrated nutrient supplementary food in which calcium caseinate was a major contributor to the protein content and the department had not produced convincing material to show that the product was known as a milk food in trade parlance. On the evidence, the product did not fall within the mischief of the entry.

Conclusion: SPERT was not covered by entry 14 of Notification No. 17/70 dated 1-3-1970 and was exempt from excise duty, so the appeal failed.

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