1987 PLP 2337 (MLD)

9. Cement-- "Cement" includes clinker but does not include products known as or used as cement paints. (1) White or coloured cement One hundred and five rupees and thirty-five paisa per tonne. (2) All other sorts of cement Forty-two rupees and thirty five paisa per tonne." Item 27 reads as follows:

PRODUCTS OF CHEMICAL AND ALLIED INDUSTRIES 25 ...................................................... 26 ..

27. Paints, pigments, varnishes and polishes

All sorts paints (including as or used as cement paints), pigments, distempers, colours, dyes, enamels, varnishes, glazes, lusters, thinners, blocks, cellulose lacquers and polishes (except creams and polishes falling under item No.25), and their ancillaries, in any form, liquid, solid, semi-solid, paste, powder or granules-- (1) If retail price and quantity are legibly, prominently and indelibly printed on each container of package. 22 per cent of the retail price. (2) If not covered by sub-item (1). 2200 per cent, ad valorem." In item 27 cement paint was also included in the category of paints. The definition of cement paint has not been given anywhere nor there is any evidence on record to show what is a cement paint and how it differ from coloured cement.

2. Mr. Noorul Hassan the learned counsel for the respondents contended that in the absence of the definition of the cement paint literal and dictionary meaning should be taken into consideration. According to the learned counsel any cement used for painting or colouring the house shall be called cement paint. The contention of the learned counsel does not seem to be tenable. Under the schedule "coloured cement" and "cement paints" have been categorised as two different items attracting rates of duty. . Difference between the two should not depend on the mode of user. If the contention of the learned counsel is extended it may lead to illogical result and one item will overlap the other. Cement paint has been categorised in the categories of varnish, paint etc. and it is treated different from coloured cement which has a category of its own under the heading 'mineral products'. The respondents without applying their mind changed the classification and no reason for change has been given. The only reason seems to have been given by the respondents is that is 'Cement paint' has been categorised under item No.27 the coloured cement should be included in the definition of paint. Mere inclusion of cement paint under item No.27 does not automatically make it cement paint. The decision of this question rests on evidence of experts of Technical nature to determine what is a cement paint and how it differs from coloured cement. These questions can be determined only by recording evidence which we are afraid in these proceedings we cannot do. However, the fact remains that the respondents have classified coloured cement as cement paint without any evidence and without applying their mind to the facts and circumstances of the case and the legal provisions operating at the relevant time. In view of these circumstances and reasons we hold that the impugned orders passed by the respondents are without lawful authority and are of no legal effect. We remand the case to the respondent No.3 for proper adjudication and to decide the question of difference between coloured cement and cement paint in the light of evidence if produced by the parties. Subject to these observations the petition is allowed. M.Y.H./B-36/K Petition allowed.