1983 PLP 1540 (CLC)

(b) If not covered by clause (a). 200 per cent ad val. (2) Soap other than soap falling under sub item (1)‑ (a) If weight and retail price are legibly, Such rate not exceed prominently and indelibly printed on ing 50 per cent. of the outer wrapper or package or con‑ retail price as may be tainer of soap or is legibly and pro fixed by the Federal minently embossed on soap which is Government by notifi‑ sold unwrapped or unpacked, cation in the official Gazette, and different rates may be fixed with reference ` to, different conditions and circum stances. (b) If not covered by clause (a) ..: 200 percent ad valorem"

2. The Deputy Collector, Central Excises and Land Customs, vide his detailed and well‑reasoned order dated 30th December, 1976 found in the affirmative, holding that the said two products were synthetic detergents which finding was affirmed in appeal as well as in revision by the Collector and the Federal Government respectively.

3. Mr. Pesh Imam, the learned counsel for the petitioners challenged' the aforesaid finding on the following grounds (i) That the said products ate chemicals and not detergents. (ii) That to be detergent within the meaning of said item 29 the pro ducts must have the properties for which soap is generally used. (iii) That the impugned orders ignore the well‑founded distinction between surface active preparations and washing preparations and primary object of the two products being the former, cannot be regarded as detergent.

4. The first ground is on the face of it without any merit for, as stated in the impugned orders, the word "chemical" has a very wide connotation and includes detergent. In other words all detergents are chemicals while all chemicals are not detergents.

5. Coming to the second ground the contention was that only such detergents are leviable to excise duty as are used for the purpose for which soap is generally used and, therefore, chemical preparations which are not used for the purpose for which soap is generally used are not leviable to excise duty under the said item 29: .In support of this argument the learned counsel referred to the repealed item 23 of the First Schedule to the Act which reads as follows "Item 23. ‑Soap means all varieties of products known commercially as soap and includes other detergents which are used for the purpose for which soap is generally used." The argument‑is misconceived for item 23 was in respect of soap only and the Legislature included in the expression "soap" detergents which were used for the purpose for which soap is generally used. On the other hand item 29 has the heading "Soap and Detergents'"' add specifically includes the detergents of all sorts. The departure made in item 29 is significant' and it cannot now be said that only those detergents are subject to excise duty which are used for the‑purpose for which soap is generally used.

6. In support of the third ground Mr. M. A. Pesh Imam invited our attention to Brussel's Nomenclature (S. VI, P. 504a, May 1975 Ed:) which draws a distinction between surface active preparations and washing preparations and pointed out that wetting agents and emulsifying agents for textile industry, such as the two products in question, are classified under surface active preparations and not under washing. preparations an the same distinction must. therefore, be maintained while interpreting item 29 which must be limited to washing preparation. The argument was that detergents contemplated by item 29 are such washing preparations as are detergents. Item 29, however, does not make any such distinction for it applies to all sorts of detergents. Moreover, Brussel's Nomenclature in enumerating different kinds of surface active preparations and washing pre parations, describes wetting and emulsifying agents for textile industry, which is the petitioner's own description of its said two products, as deter gents. Some of the preparations are also described in the Brussel's Nomenclature as detergents. The words of wide connotation "detergents, all sorts" in item No. 29 will, in our view apply to detergents in both the Brussel's classifications.

7. We have further noticed in the present case that the finding arrived at by the authorities below that the two products of the petitioners are detergents is based on evidence naively, the report of the Chief Chemical Examiner, according to which the foam height and the cleansing powder of the two products in the soft and hard waters qualify them for classification under item 29.1 of the Central Excise Tariff as detergents. It is not open to us to interfere with this finding of fact in our Constitutional jurisdiction under Article. 199 of the Constitution.

8. The petition is, therefore, dismissed with costs. M. A. K. Petition dismissed.