1989 PLP 818 (PTD)

(B) As products, which have been mixed: (1) Colloidal solutions and suspensions (other than colloidal sulphur); (2) Vegetable extracts obtained by the treatent of mixtures of vegetable materials; and . (3) Salts and conceit: rates obtained by evaporating natural mineral waters." In the light of the above definition of `medicament' given in the explanatory note to Chapter 30 of P.C.T. we will now examine whether 'Nitrous Oxide' could fall under heading No.30.03. The chemical formula of 'Nitrous oxide is N2O which means two molecules of Nitrogen when mixed with one molecule of Oxygen produces Nitrous Oxide' gas. Nitrous Oxide is defined in McGrow Hill Dictionary of Scientific and Technical' Terms' (Second Edition) as follows: "(INORC CHEM) N2 O, Colorless, Sweet tasting gas, boiling at 90 c slightly soluble in water soluble in alcohol, used as food aerosol, and as an anesthetic in dentistry and surgery." It is quite clear from the above definition of 'Nitrous Oxide' that one of its uses is as an anesthetic agent in dentistry and surgery. According to explanatory note No.l (a) to Chapter 30 reproduced above, products comprising two or more constituents which have been mixed or compounded together for therapeutic or prophylatic uses are covered under heading No.30.03. The words therapeutic or prophylatic are defined in various dictionaries as follows: "I. In Chambers Twentieyth Century Dictionary: Therapeutic- Pertaining to healing art, curative. Prophylatic guarding against disease a preventive against disease or preventive treatement. II. In Concise Oxford Dictionary: Therapeutic: Curative of healing branch of medicine concerned with treatment of diseases and action of remedial agents in disease of health. Prophylatic: Medicine or curative action tending to prevent disease or other misfortune preventive treatment against disease. III. In Newqrolier Webster Dictionary: Therapeutic branch or part of medicine dealing with the remedy or treatment of disease; driven from therapy meaning medical treatment of disability or disease. Prophylatic-Preventing medicine which protects of defends against disease. IV. In Concise Oxford Dictionary Therapeutic: Pertaining to the healing of the disease, a curative agent branch of medicine, which is concerned with remedial treatment of disease the art of healing. Prophylatic: to keep guard against that which defends or tends to prevent disease, or preventive treatment of disease." The petitioner in paragraph 2 of their petition has specifically alleged that 'Nitrous Oxide' produced by them is exclusively used for medical purposes as anaesthetic agent in hospitals 'and clinics. The above allegation of, the petitioner has been admitted by the respondents in para. 2. of their counter-affidavit. It cannot be denied that anaesthesia is administered to patients during surgery liar relieving them against pain and to help them in relieving from the disease. We sire, therefore,, m no doubt that. 'Nitrous Oxide' has a therapeutic use when administered as an anaesthetic agent in surgical cases. It will also be useful to refer here the explanatory notes in Brussels Nomenclature; in respect of heading No.30.03 as these notes having always been regarded as useful guide to the interpretation of various headings in the Customs Tariff. According to explanatory note in Brussels Nomenclature appended to heading No.30.03, this heading also Covers anaesthetics used in human or veterinary medicine or surgery provided they are prepared or put up as described in Parts (A) and (B) of the heading. Part 'A ' deals with medicine preparation obtained by mixing or compounding together two or more substances while Part `B' describes unmixed products. Parts (A) and (B) of the explanatory notes to the Brussels Nomenclature are same as referred in the notes to heading No.30.03 of the Pakistan Customs Tariff which is reproduced earlier in this order We have already stated above the `Nitrous Oxide' gas obtained by compounding together Nitrogen and Oxygen and as such in accordance with the explanatory notes appended to heading No. 30.03 both in the P.C.T. as well as in Brussels Nomenclature, `Nitrous Oxide' gas when used as anaesthetic agent in surgery falls under heading No.30.03 as it is, covered in the definition of medicament. The fact that 'Nitrous Oxide' could also be classified under heading No.28.13 of F.C.T. V does not mean that if could not be classified under heading No.30.03 Mr. Abdul Sattar, the learned counsel for the respondents, however, contended before us that the petition is not maintainable as the petitioner failed to avail the alternate remedy available to them by way of appeal and revision before the Collector and Board of Revenue and as such this petition is not maintainable. It is true that normally a petition under Article 199 of the Constitution is not entertained by the High Court where remedy by way of appeal or revision is available to the aggrieved party under the relevant statute. However, in the case before us the petitioner has placed on record the cetter C. N0.16 (2)-ST/87; dated 15-11-1987 which reads as follows:

CENTRAL BOARD OF REVENUE' C.No.16 (2)-ST/87 Islamabad, 15th Nov. 1987 From:- Mr. Muhammad Saeed, Secretary (Sales Tax), Te le: 822848 To: The Collector, Central Excise & Sales Tax, Karachi SUBJECT: SALES TAX ON NITROUS OXIDES GAS Kindly refer to your C. No.ll/28-ST/87, dated 22-4-1987 on the subject noted above.

2. The matter has been examined in the Board and it is regretted that exemption from sales tax cannot be allowed on Nitrous Oxide Gas (PCT heading 28.13). Sd/ (Muhammad Saeed) Secretary (Sales Tax)" As the decision in the case has already been taken by the authority which is at the apex in the hierarchy of the department no useful purpose will be served by directing the petitioner to avail of the remedy of appeal and re stun under the relevant statute which in the circumstances of the case is illusory. We accordingly hold that `nitrous oxide' supplied by the petitioners to hospitals for use as a anaethetic agent' falls under heading No. 30.03 of Pakistan Customs Tariff (P.C.T.) and as such it is exempted from payment of sales tax under S.R.O. No.666 (1) 81, dated 25-6-1981. The classification of `Nitrous Oxide' Gas under heading No.28.13 of Pakistan Customs Tariff by the respondent is accordingly declared without lawful authority and of no legal effect. There will, however, be no order as to costs. We are informed that the petitioner had furnished a bank guarantee in this Court for the disputed amount, which shall remain operative for a period of two months from today to enable the respondents to avail of the remedy before the Supreme Court against this order if they so desire. However, if no, appeal is filed by the respondents within the aforesaid period and they failed to obtain appropriate order from the Supreme Court in this regard, the bank guarantee furnished by the petitioner shall stand discharged on expiry of the above period.