1983 PLP 3204 (CLC)

7. After recording the evidence the trial Court decided all the issues in favour of the respondent and decreed the suit by the judgment and decree dated 6‑11‑1969, now impugned by the appellant in the present appeal. 8. 1 have beard Mr. Munawer Abbas, Advocate for the appellant and Mr. S. Nasarullah Awan, Advocate for the respondent.

9. Mr. Munawar Abbas, Advocate ‑ has raised the following points in support of the appeal: (1) That the order under which the notification on the basis of which the claim was made from the appellant by the respondent is ultra vires the powers conferred by section 3 of the Act inasmuch as equalization fund could be established only in respect of the essential commodities which are mentioned in section 2 of the Act which includes iron and steel and which does not include galvanised iron pipes. (2) That the notification applies inter alia, to galvanised sheets and steel pressure pipes, tubes and fittings, coated or uncoated excluding electric conduit pipes but it does not apply to galvanised iron pipes. In order to appreciate the first point it may be necessary to mention the definition of "essential commodities" provided in section 2(a) of the Act which reads as follows :‑. "(a) "essential commodity" means any of the following classes of commodities (i) foodstuffs. (ii) Cotton and woollen textiles. (iii) Paper. (iv) Petroleum and petroleum products. (v) Spare parts of mechanical propelled vehicles, (vi) coal. (vii) iron and steel. (viii) mica." It is clear ‑ from the above definition that words iron and steel in item,, (vii) are used in generic sense and represent the class. Steel sure pipes' tubes, fittings, coated or uncoated excluding electrical conduit pipes, galvanised or black and other items mentioned in the Order are species iron or steel and, therefore, it cannot be said that the order issued there under providing establishment of equalization fund and requiring contribu tions to the same in respect of the items mentioned in the schedule to the Order is ultra vires the powers conferred by section 3 of the Act. This disposes of the first point raised before me. Now, as regard the second point I find substance in it for in the Schedule to the Order a distinction is made in steel pressure pipes etc. and cast iron pressure pipes etc. as the same are mentioned separately at items 18 and 19 thereof, while in the notification only the last item namely, steel pressure pines etc. are mentioned. There is no mention of cast iron pressure pipes and specials including cast iron dawn pipes (drain or rain water pipes). It was submitted by Mr. Munawar Abbas that the appellant had imported galvanised iron pipes as stated by the respondents themselves in paragraph 3 of the plaint as well as in correspondence exhibited in the suit and contribution to the equalization fund could be required only in respect of items mentioned in the notification and since galvanised iron pipes are not mentioned in the notification, the same did not apply to the goods improted by the appellant. Yesterday, I gave an opportunity to Mr. Awan to find out whether the notification dated 3‑7‑1950, was subsequently amen ded by addition of iron pipes or galvanised iron pipes but he frankly admitted that he has not been able to find out any such notification. This question has been dealt with by the learned District Judge in paragraph 9 of the impugned judgment as follows :‑ "

9. According to Mr. Munawar Abbas, Iron and Steel (Control of Production, Distribution and Import) Order, 1948 cannot be applied to galvanised pipes because in the Schedule attached to it galvanised sheets have been mentioned at Item No. 10 separately and this shows that galvanised sheets is to be deemed a different item, then other iron and Steel items which have been mentioned in the Schedule while in the notification issued in pursuance of paragraph 12 of Iron and Steel (Control of Production, Distribution and Import) Order, 1948 for the establishment of equalisation fund, this item has not been shown separately. The contention of Mr. Munawar Abbas is not correct. Galvanised sheets are shown separately at item No. 7 in this Notification, Exh. 6, also. It cannot be denied that galvanised sheets are also made up of steel and iron. The word "galvanized" according to Oxford Dictionary means coated with metal by electro lysis or iron coated with zinc to protect it from rust. It is, thus, clear that galvanized sheets come within the mischief of paragraph 12 of the Iron and Steal (Control of Production, Distribution and Import) Order, 1948 and the defendants know about it and stated so in para. 3 of their written statement. Moreover, the defendants themselves admitted in para. 3 of their written statement as follows "The consignment of galvanized iron pipes was no doubt imported from Germany A perusal of the above quoted passage :from the impugned judgment would show that the learned District Judge has not found that the galvanized iron pipes are covered by item No.

18. So far as item No. 10 namely, galvonized sheets (plain and corrugated) including defectives, seconds and cuttings are concerned they are quite different from the iron pipes as con. ceded by Mr. Awan. Even item No. 18 Of the notification would not cove the goods imported by the appellant for cast iron pressure pipes have been separately mentioned in the Schedule to the Order at item No. 19 and, there fore, contribution to the equalisation fund was required inter alia in respect of steel pressure pipes mentioned in the notification and not (n respect galvanised iron pipes. Even from steel pressure pipes, electrical conduit pipes are excluded. The distinction between the steel pressure pipes an cast iron pressure pipes is made quite clear in the Schedule to the Order itself by mentioning them separately at items Nos. 18 and

19. No proposition is better established than that a tax cannot be imposed on a subject except by clear and unambiguous language. I may refer here the following statement in Craies on Statute Law (7th Edition), page 112: "Express and unambiguous language appears to be absolutely indispensable in statutes passed for the following purposes : Imposing a tax or ' charge ........................... Also see Privy Council's decision in The Oriental Bank Corporation v. Henry B. Wright 5 App. Cas. 842 wherein it was observed by their Lordships of Privy Council at page 856 of the report as follows :‑ "The intention to impose a charge upon the subject must be shown by clear and unambiguous language." I may also refer to the observations of Lord Cairns in a House of Lord's Case namely, Charles James Partington v. The Attorney‑General (1869) L R 4 H L 100 at page 122 of the report, which read as follows :‑‑ "I am not at all sure that, in a case of this kind ‑‑ a fiscal case ‑ form is not amply sufficient because, as I understand the principle of all u;: fiscal legislation, it is this : If the person sought to be taxed comes within the letter of the law he must be taxed, however great the 'hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however, apparently within the spirit of the law, the case might .otherwise appear to be In other words, if there be admissible, in any statute, what is called an equitable construction, certainly such a construction is not admis sible in a taxing statute, . where you can simply adhere to the words of the statute." For the reasons given above the appellant succeeds on the second point. 1, therefore, set aside the decree impugned in this appeal. Since Mr. Awan frankly conceded to the legal .position, I leave the parties to bear their own costs. . M. Y. H. Appeal accepted.