JUDGMENT - Dr. B.P. SARAF, J.:---The question of law that falls for determination in this writ petition is whether "Balsam Tolu B.P." is a drug or it is a food essence falling under Item 8 of Clause 1 of Schedule H to the Bombay Municipal Corporation Act ("B.M.C."). 2. The petitioner is a partnership firm registered under the India Partnership Act. it carries on the business, inter alia, of importing and selling drugs. It holds a licence dated 16 October, 1978 issued under the Drugs and Cosmetics Act, 1940. It also holds a valid import licence for import of drugs. On 26 June, 1990, the petitioner entered into a contract with one H.E. Deniel Limited of England for the purchase and import of 10 M. tons of "Balsam Tolu B.P.". The expression "B.P." denotes the grade of Balsam Tolu i.e. "British Pharmacopeal Grade". A consignment containing the above item arrived the Port of Bombay sometime in the year, 1990. The said consignment was cleared by the customs as drugs covered by the above licence. It may be pertinent to observe in this connection that petitioner had imported Balsam Tolu B.P. in the past too. Althroughout it was classified by the B.M.C. itself as a drug and no octroi was levied on the import thereof in Greater Bombay as octroi is not leviable on drugs. 3. It may also be pertinent in this connection that sometime in the year, 1981, some officials of the B.M.C. in charge of octroi tried to depart from this interpretation and classify Balsam Tolu B.P. imported by one M/s. Fair Deal Corporation Pvt. Ltd., as an article of food or drink falling under Item 8 of Schedule H. The above action being challenged by the said concern before this Court by filing a writ petition (which was numbered as Writ Petition No. 2004 of 1983) the Deputy Assessor and Collector (Octroi) of B.M.C., by his letter dated 6 January, 1984 informed the advocate of the said concern that no octroi was leviable on Balsam Tolu B.P. and that the octroi recovered from them would be refunded. The said concern was also asked to withdraw the above writ petition. In that view of the matter, the above writ petition was withdrawn. As a result, Balsam Tolu B.P. continued to be classified as a drug not subject to octroi. The said concern was also asked to withdraw the above writ petition. In that view of the matter, the above writ petition was withdrawn. As a result, Balsam Tolu B.P. continued to be classified as a drug not subject to octroi. The present writ petitioner had also imported Balsam Tolu B.P. in the past which too was classified by the B.M.C. as a drug and not subject to octroi. In the year, 1990, when the above consignment which is subject matter of the controversy in the present case reached Bombay Port, the Octroi Inspector of the B.M.C. posted at Indira Docks, as usual, endorsed on the reverse of the bills of entry submitted by the petitioner to the custom authorities that the "bills were not liable to octroi". However, before the goods could be cleared, the said endorsement was cancelled and the petitioner informed that octroi at the rate of 7 per cent ad valorem would be leviable on Balsam Tolu B.P. imported by it treating it as edible item of food and drink specified in Item 8 of Schedule H to the Act. The petitioner has challenged the above action of the B.M.C. 4. The challenge to the proposed levy of octroi on Balsam Tolu B.P. is on grounds more than one. First, that the B.M.C. itself having classified Balsam Tolu B.P. as drug althroughout in the past, it is not open to it, without any cogent reason or material, to change the classification and to treat it again as a food essence falling under Item 8 of Schedule H. Second, that Balsam Tolu B.P. is not a food essence but it is an item used in preparation of medicines. Even if Balsam Tolu B.P. is also suspectible to be used for any purpose other than "pharmaceutical", the grade of Balsam Tolu imported by the petitioner i.e. "British Pharmacopeal grade" is only intended for use in the preparation of medicines and not as a food essence. The petitioner submits that in any view of the matter, so far as he is concerned, he is not even a dealer in food items or food essence. He is a dealer in drugs and carries on the said business on the strength of a drug licence issued by the competent authority under the relevant statute. The petitioner submits that in any view of the matter, so far as he is concerned, he is not even a dealer in food items or food essence. He is a dealer in drugs and carries on the said business on the strength of a drug licence issued by the competent authority under the relevant statute. Balsam Tolu B.P. imported by the petitioner is treated as a "drug" under the Drugs Act and it is for that reason that the supervision and control over the import, purchase and sale of the same is in the hands of the authorities under the Drugs Control Act. In that view of the matter, according to the petitioner, the goods imported by the petitioner cannot be classified as a food essence. 5. In reply, learned Counsel for the B.M.C. Mr. Bharucha submits that the fact that in the past Balsam Balsam Tolu B.P. was classified as a drug is not relevant as the principle of estoppel has no application in such matters. According to him, the user of Balsam Tolu by the petitioners is of no relevance. According to him, the language of Item 8 of Schedule H is plain and unambiguous and as such the doctrine of contemporaneo expositio has no application. Counsel submits that the popular commercial meaning of work appearing in the list of item in a fiscal statute should be considered in matters of classification. According to the Counsel, classification is a matter of evidence and whether a particular item falls under one entry or the other should be left to the authorities concerned to decide by examining witnesses etc. He has produced a number of dictionaries and other literatures to show that though Balsam Tolu is used in pharmaceutical preparations, it can also be used as a food essence. 6. I have carefully considered the rival submissions of the Counsel for the parties. In this case there is no dispute about the fact that the B.M.C. itself has althroughout interpreted Item 8 of Schedule H not to cover Balsam Tolu B.P. It has been classified as a drug which is exempt from octroi. An attempt was made by the officers of the B.M.C., as back as in the year, 1981, to classify it as a food item or food essence. An attempt was made by the officers of the B.M.C., as back as in the year, 1981, to classify it as a food item or food essence. Such action being challenged, the B.M.C. struck to its earlier interpretation and came up with clarification that it was not food essence but a drug which would not be subject to octroi and that any octroi recovered on the said item erroneously treating it as a food essence would be refunded to the parties concerned. The B.M.C. acted on the above classification althroughout till the year, 1989 when again an attempt was made to depart from it. Nothing new appears to have happened in the year, 1990 to call a departure from the timehonoured interpretation of Balsam Tolu B.P. and Item 8. The contention of the B.M.C. is that in the year, 1988 it forwarded the sample of Balsam Tolu B.P. to the Chemical Analyser to ascertain its quality and uses who reported that it was liable under Item 8 as food essence. According to the B.M.C., the above report is the foundation of its change of opinion in regard to classification of Balsam Tolu B.P. I have seen the report of the Analyst dated 20 January, 1990 which is annexed as Exh. 1 to the affidavit filed by the B.M.C. In the said report Properties, Grades, Uses and Medical use of Balsam Tolu have been set-out from Condensed Chemical Dictionary, 6th Edition. In the said report under the head "uses", it is stated as below : "Medicine, perfumery, chya Cinta Cofectionary (Clans) Fumigating compositions Chequing gum. As per the reference from xerox Index Page No. 118 Balsam Tolu. In prefumery, confectionary and chewing gums. In pharmacy, as ingredient and vehicle for expectorants. Medical Use: Harble expectorant. As per reference from page No. 315 of "Marinuble the extra pharamacopic. Tolu Balsam(S.P.) Uses: It has very mild antiseptic properties and has some expectorant action but is mainly used as Tolu Syrup to flavour cough mixtures. There is no reference in British Pharmacopoeia of 1973. In the above report, the Analyst also refer. "However as per partys letter party is using for cough expectorant and others. Therefore it is for administration to decide whether it should be made liable for octroi under item No. 8 as. There is no reference in British Pharmacopoeia of 1973. In the above report, the Analyst also refer. "However as per partys letter party is using for cough expectorant and others. Therefore it is for administration to decide whether it should be made liable for octroi under item No. 8 as. "Food essence" or not." (Emphasis supplied) It is evident from the above report that the Analyst nowhere said that Balsam Tolu is not a drug item or that it is not an item which can be used as medicine. . He himself mentioned a number of its medical uses and left it to the B.M.C. to decide whether it can be assessed under Item 8 on Schedule H or not in view of the fact that the petitioner was using it as medicine. Thus, it is clear that no new material has come in the possession of the B.M.C. to justify any departure from the classification accepted and acted upon by it for more than two decades. 7. It is well settled that when a particular construction has for some years been put upon an item of taxable commodity in fiscal statute in favour of the tax payer and that construction has been generally acted upon and acquiesced in by the authorities, a strong presumption arises in favour of that construction. departure from that interpretation is not permitted except for very cogent reason. As observed by the Supreme Court in (C.I.T. v. Balkrishna Malhotra)1, (1971)81 I.T.R. 759: "It may be that another view of the law is possible but law is not a mere mental exercise. The courts while reconsidering decisions rendered a long time back particularly under taxing statutes cannot ignore the harm that is likely to happen by unsettling law that had been once settled." In the above case, the Supreme Court refused to depart from the interpretation placed on the relevant provision of the Income-tax Act by the Madras High Court even though it was felt that the different view of the latter might be reasonably possible. This approach is also necessary to maintain some consistency of interpretation in the matter of fiscal statutes in the interest of all concerned. As observed by the Supreme Court in (Parashuram Pottery Works Co. This approach is also necessary to maintain some consistency of interpretation in the matter of fiscal statutes in the interest of all concerned. As observed by the Supreme Court in (Parashuram Pottery Works Co. Ltd. v. I.T.O.)2, "....we have to bear in mind that the policy of law is that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity." Unless the above dictum of the Supreme Court is followed, litigation will have no end except when legal ingenuity is exhausted, which is never likely to happen. 8 In view of the above discussion, I am of the clear opinion that though the B.M.C. is not bound by the rule of res judicata or estoppel by record, it cannot depart from a finding given by it earlier in the absence of very cogent reasons. In the instant case, I do not find any material or reason whatsoever which might justify the action of the B.M.C. in departing from the classification of Balsam Tolu B.P. made and acted upon by it for long two decades. 9. I now turn to the merits of the case. Item 8 of Schedule H is a part of several items grouped together in Class I under the head "articles of food and drink ". Item 8 reads: (8) Edioles-bacom and hames, 7 per cent table butter, butter other ad-valorem. than table butter, margarine, 3+ per cent ad dried or preserved valorem (non- fruits and nuts excluding refundable) or Dry fresh fruits and betal nuts fruits and Dried. canned fish, cheese, confec- Nuts tionery, jams and jellies, milk condensed and preserved, 3 per cent ad- all sorts of farinaceous valorem for forsen foods, pickles, cocoa, cocoa mutton carcasses. beans and chocolates, biscu- its and cakes, lard or edible 3 per cent ad- animal fat, mawa, milk cream, valorem for unwrapped chakka and curds, fruit Bread. juices and all beverages, Glucose, Dextrose or any fruit 3 per cent ad- sugar, oilman stores (except valorem for biscuit edible oils), preserved pro- costing not more visions, baking or curry than Rs. 16 per Kg. juices and all beverages, Glucose, Dextrose or any fruit 3 per cent ad- sugar, oilman stores (except valorem for biscuit edible oils), preserved pro- costing not more visions, baking or curry than Rs. 16 per Kg. powder, sachharin, all kinds of food colours and essences, 2 per cent ad- glucose of all other kinds, valorem for malt extract, honey, papad, Ice-cream only. meat-fresh or preserved for whatever use, and all kinds of food or drink not specifically provided for, excepting whole milk, toned milk and skim milk powder. From the above item, it is evident that all commodities specified therein are articles of food and drink. The expression relevant for the present purpose is "all kinds of food colours and essence". This is preceded by "baking or curry powder, sachharin" and followed by "glucose of all other kinds malt extract, honey, papad" etc. It is evident from the items of food and drink enumerated in Item of day-to-day use as food and drink only are included therein. 10 The principles which govern the interpretation of items in the list of taxable goods are no more res integra. Various principles or tests have been evolved by the Supreme Court from time to time for interpretation of items of taxable goods. One of the well-known principles of interpretation is that words of every day use must be construed not in the scientific or technical sense but as understood in the common parlance. If a statute contains a language which is capable of being construed in a popular sense, such a statue should not be construed according to the strict or technical meaning of the language contained in it but it should be construed in its"popular sense", meaning thereby the sense which people conversant with the subject matter with which the statute is dealing would attribute to it . The above test was applied by the Supreme Court in (Ramavatar Budhaiprasad v. Assistant Sales Tax Officer)3, (1961) 12 S.T.C. 286 to interpret the expression "vegetables" appearing in Sales Tax Act and it was held that the word "vegetables" appearing in the taxing statute is to be understood as in common parlance i.e. denoting the class of vegetables which are grown in a kitchen garden or in a farm or are used for the vegetable. In that view of the matter, "betel leaves" were held not to be vegetables. In that view of the matter, "betel leaves" were held not to be vegetables. The same test was followed by the Supreme Court in (Indo International Industries v. Commissioner of Sales Tax)4, (1981) 7 S.T.C. 359 to hold that "clinical syringes" cannot be considered as "glassware" though according to the dictionaries it may be so. Applying the very same test, it was held in (Commissioner of Sales Tax v. Macneill Barry Ltd.)5, (1986)61 S.T.C. 76 that ammonia paper and ferro paper did not fall under the entry "paper" as the same were not employed for any of the purposes and subjected to any of the processes for which a paper as commonly understood is generally used. On the same anology in (Thillal Chidambara Nadar v. Additional Appellate Assistant Commissioner)6, (1985)60 S.T.C.. 80 (S.C.), it was held that ripened coconut is not fresh fruit or vegetable. 11. Another test akin to the common parlance test is the "special parlance test". According to this test, items in taxing statues should be judged and analysed on the basis of how these expressions are used in the trade or industry or in the market or, in other words how these are dealt with by the people who deal in them. This test was applied by the Supreme Court in (Delhi Cloth General Mills Co. Ltd. v. State of Rajasthan)7, (1980)46 S.T.C. 256 , where it was held that if there is one principle fairly well-settled it is that the words or expressions must be construed in the sense in which they are understood in the trade, by the dealer and the consumer.It is they who are concerned with it, and it is the sense in which they understand it that constitutes the definitive index of the legislative intention when the statute was enacted. Applying the same principle, it was held in (Chiranjit Lal Anand v. State of Assam)8, (1985)60 S.T.C. 89 (S.C.), that "meat on hoof" has to be understood in the context of persons who are dealing in it and so understood it falls within the item "meat". The commercial parlance rule was also referred to in (Aluminium Cables Ltd. v. Union of India)9, (1987)64 S.T.C. 180 (S.C.). 12. Though the common parlance or commercial parlance tests are the generally accepted tests, various other tests have been evolved from time to time to interpret items of taxing statutes. The commercial parlance rule was also referred to in (Aluminium Cables Ltd. v. Union of India)9, (1987)64 S.T.C. 180 (S.C.). 12. Though the common parlance or commercial parlance tests are the generally accepted tests, various other tests have been evolved from time to time to interpret items of taxing statutes. One of such tests is "commonsense test" or "commonsense rule of interpretation". This test was applied by the Supreme Court in (Tungabhadra Industries Ltd. v. Commercial Tax Officer, Kurnool)10, (1960)11 S.T.C. 827 , to hold that hydrogenated groundnut oil continued to be groundnut oil. It was followed in (Alladi Venkateswarlu v. Government of Andhra Pradesh)11 S.T.C. 394 to decide whether "Parched rice" and "Puffled rice" fell within the definition of rice. The Supreme Court observed: We think that we must give a broad enough interpretation to the term rice, in accordance with what may perhaps be best described as the commonsense rule of interpretation laid down by this Court in Tungabhadra Industries Ltd. v. Commercial Tax Officer Kurnool , (1960)11 S.T.C. 827 ". It was Accordingly held that the term "rice"as ordinarily understood in English language would include both "parched" and "puffed" rice. 13. Another test, which is sometimes applied by the courts is "user test". According to this test the use to which the goods can be put can also be considered is interpreting an item. However, this rule of interpretation has got its own limitations because certain goods may be put to certain uses by different persons. That , however, cannot entitle the revenue to apply different rates of tax to the sales of same goods by different persons depending upon the use to which they will be put by the purchasers. To apply this test, therefore, the deciding factor has to be predominant or ordinary purpose or use. This test was applied by the Supreme Court in (Annapurna Carbon Industries Co. v. State of Andhra Pradesh)12, (1976)37 S.T.C. 378 , for deciding whether the "arc carbon" which are known as "Cinema arc carbons" in the market can be classified in another category depending on their use. The Supreme Court observed that the fact that the arc carbons can also be used for searchlights, signalling, stage lighting, or where powerful lighting for photography or other purposes may be required, could not detract from the classification to which the carbon arcs belong. The Supreme Court observed that the fact that the arc carbons can also be used for searchlights, signalling, stage lighting, or where powerful lighting for photography or other purposes may be required, could not detract from the classification to which the carbon arcs belong. From the above decisions it is clear that the user test is not a safe guide to interpretation nor is conclusive. 14. The principles that emerge from the above interpretation can be summed up thus: Where no definition is provided in the statute for ascertaining the correct meaning of a fiscal entry, the same should be construed as understood in common parlance or trade or commercial parlance. Such words must be understood in their popular sense. The strict or technical meaning or the dictionary meaning of the entry is not be resorted to. The nomenclature given by the parties to the word or expression is not determinative or conclusive of the nature of the goods . The same will have to be determined by application of the well-settled rules of principles of interpretation which have been referred to as "common parlance" rule, " trade or commercial parlance" rule, "commonsense rule of interpretation" and "user test". The application of the principles will again depend on the facts and circumstances of each case. No test or tests can be said to be of universal application. Each case will have to be decided by applying one or more rules of interpretation depending upon the facts of that particular case. 15. Applying the above principles, it may now be examined whether Balsam Tolu B.P. is a drug or a food essence. I have perused various pharmacopoeia and other literature where the composition, use, etc. of Balsam Tolu have been described. The condensed Chemical dictionary describes the use of Balsam Tolu as: "Medicine; perfumery (hyacinth); confectionery (glaze)- fumigating compositions; chewing gum." There is no dispute about the use of Balsam Tolu in pharmaceutical preparations. Every literature on the subject clearly goes to show that its primary and dominant use is pharmaceutical though it can also be used as an item of perfumery. Even the analyst who was asked to report about the classification of Balsam Tolu, in his report, says that in pharmacy it is used as ingredient for expectorants. It also says that it is mainly used for flavour cough mixtures. Even the analyst who was asked to report about the classification of Balsam Tolu, in his report, says that in pharmacy it is used as ingredient for expectorants. It also says that it is mainly used for flavour cough mixtures. The Pharmacopoeia of India has put Tolu Balsam in the category of expectorant and as an ingredient of Benzoin Compound Tincture. In Martinadales the Extra Pharmacopoeia (Twenty ninth edition) it is stated that Tolu Balsam is considered to have very mild antiseptic properties and some expectorant action but is mainly used to flavour cough mixture. It is generally used in the form of a syrup. Under the head preparations of Tolu Balsam in the above publication, we find Tolu Balsam Syrup and Tolu Balsam Tincture. In Hawleys Condense Chemical Dictionary (Eleventh Edition) it is stated that Balsam is used in flavouring chocolate manufacturing, as an ingredient in expectorants and cough syrups, and as a flagrance in shampoos and hair conditioners. It is also described as a mild allergen. It is clear from the above discussion, that Tolu Balsam is primarily used as cough expectorant or tincture though it can also be used as a flavouring agent in shampoos, chocolates etc. 16 In the instant case, the admitted position is that the petitioner is a dealer in drugs. He has imported Balsam Talu B.P. from England. It is of the British Pharmacopoeia grade. All these clearly go to show that it is intended to be used as a pharmaceutical item. In the Pharmacopoeia of India, Balsam Tolu has been put under the category of expectorant and its preparation has been described as "Tolu Syrup". It is also stated the Tolu Balsam is ingredient of Benzion Tincture. 17. Considering all these factors, it is abundantly clear that in commercial or trade parlance Balsam Tolu is known as a drug. Its primary and dominant use is also pharmaceutical. Balsam Syrup and Balsam Tincture appear to be well known Balsam preparations. In the premises, in my opinion, the B.M.C. had correctly interpreted this item althroughout in the past as a"drug" There is no justification for deviating from the above interpretation and to hold it as food essence falling under item 8. For the reasons set out above the action of the B.M.C. to change the classification of Balsam Tolu B.P. from "drug to "food essence" is not correct. For the reasons set out above the action of the B.M.C. to change the classification of Balsam Tolu B.P. from "drug to "food essence" is not correct. It is not justified in departing from the interpretation given and acted upon by it after long two decades without any cogent reason. 18. Before I conclude, it may be expedient to mention that two other contentions were also advanced by the learned Counsel for the respondents. First, that interpretation of an item of taxable goods is a question of fact to be decided on the basis of evidence, hence this Court should not examine the same in exercise of its writ jurisdiction. Second, that if the item can reasonably bear two interpretations, and one of them which is in favour of the revenue was adopted, this Court has no jurisdiction to interfere with the same merely because the other interpretation favourable to the subject appears to the Court as the better one to adopt. 19. I have carefully considered the above contentions. I, however, find it extremely difficult to accept the same as both the propositions go against the well-settled law on the subject. So far as the power of the Court is concerned, it is the well-settled legal position that interpretation of an item of taxing statute is a question of law which can be decided by the High Court in exercise of powers under Article 226 of the Constitution. (See Godfrey Phillips India Ltd. v. Municipal Corporation of Bombay)13, 1994(1) Bom. C.R. 292). It is equally well-settled by a catena of decisions of the Supreme Court and the High Courts that if the view are possible, the view which is favourable to the tax-payer must be accepted while construing the provision of a taxing statue. Even if there were any doubts as regards the interpretation, the benefit must go to the assessee. In view of the above position, I do not find any merit in the above contentions and reject the same. 20. In the result, this writ petition is allowed. Under the facts and circumstances of the case, there shall be no order as to costs. 21. The Counsel for the B.M.C. prays for stay of this order for eight weeks. The Counsel for the petitioner, however, submits that they have furnished the Bank guarantee which they shall maintain for 60 days hereafter. Under the facts and circumstances of the case, there shall be no order as to costs. 21. The Counsel for the B.M.C. prays for stay of this order for eight weeks. The Counsel for the petitioner, however, submits that they have furnished the Bank guarantee which they shall maintain for 60 days hereafter. The petitioner also submits that it shall file Bank guarantee in respect of any consignment received by it within a period of two months. In that view of the matter no order is called for stay of the order. Certified copy expedited. Petition allowed. *****