P L D 1966 Dacca 523 (PLP)

SALAHUDDIN AHMED, J.‑The petitioner obtained this rule nisi on the respondent to show cause why his letter No. S. T. 559/4063, dated 22/23‑6‑65, should not be declared as having been made without any lawful authority and is of no legal effect. The petitioner who describes itself as a public limited company incorporated under the Companies Act, 1913, carries on business, inter alia as manufacturers of glass sheet. The petitioner asserts that this glass is meant to be used as a building component, and he, therefore, claims that it is exempted from payment of sales tax in accordance with the Government of Pakistan, Ministry of Finance (Revenue Division) Notification (S. T.) No. 7, dated the 27th June 1951, as amended by Notification of the same authority being Notification No. 5, dated the 18th December 1953. In spite of this exemption. however, the petitioner was informed by the respondent by his letter dated 31‑3‑65 that the former was liable to pay Sales Tax on Glass sheet for the period 30‑9‑61 to 30‑9‑

64. The petitioner replied to this letter and asserted in reply that glass sheet is covered by the expression "Concrete Building Components" and as such, it is exempted from the levy of Sales Tax under the aforesaid Notifications issued under section 7 (1) of the Sales Tax Act, 1951. The petitioner also asserted that as 'concrete' has nowhere been defined either in the Sales Tax Act, 1951 (hereinafter called the Act) or in the aforesaid Notifications, the words in question should be understood in their ordinary and natural sense and in the context 'in which they were used. In support of its case the petitioner quoted in its reply the meaning of the word as given‑ in the Chamber's Twentieth Century Dictionary and also annexed a photostat copy of the opinion of Dr. F. A. Faruqi, M. Sc., Ph. D., (London), D.

1. C., A. I. Cer. N. I. C. E , (U. S. A.) Senior Research Officer, Glass and Ceramics Division of the Pakistan Council of Scientific and Industrial Research. The photostat copy of the opinion has been annexed to Annexure 'B' of the petition. In the opinion of the expert, sheet and plate glass are made of Concrete, and are, therefore, 'Concrete Building Components'. The respondent, however, declined to accept the interpretation put on the words 'concrete building component' by the petitioner, and the impugned letter dated 22/23‑6‑65 asked the petitioner company to pay up all the arrears of sales tax within June 1965. The petitioner has stated in its petition sworn on 28‑6‑65 that glass sheet is an important building component used in making glass doors, lift enclosures, partitions, balustrades, balcony fronts, domes, canopies, transom panels, sida lights, windows, ventilators and roof lights. It has also been stated that glass sheet is also used in buildings for providing lights, ventilations, etc. On the 29‑6‑65, that is, the day on which the present rule nisi was issued, the petitioner swore and put in a supplementary affidavit of facts in which he has asserted that the glass sheets manufactured by the petitioner‑company are primarily and exclusively meant to be used and/or are used as 'concrete building components'. It is also stated that the glass sheet produced by the petitioner‑company is commercially used and usable only as building materials and that it is a type of glass sheet which can only be used in concrete buildings as one of the components and that it cannot be used in any other way. It is also claimed that as an abuse of their use, these glass sheets may be used as table tops although the glass sheets are neither meant for such use nor are they sold for that purpose. The affidavit further proceeds to state that these glass sheets are now a days used in all concrete buildings. It is further stated that the' components of cement concrete consists of sand, gravel, limestone and water like those of glass sheet. It is therefore, claimed that glass sheet is exempted from levy of sales tax and the respondent has no jurisdiction to assess the petitioner. It is stated that the "taxes due would be about four lakhs and about 2 lakhs have already been paid". On behalf of the respondent, the Sales Tax Officer, Companies Circle IV, Chittagong an affidavit in opposition sworn by Mr. Lehajuddin Ahmed, Officer on Special Duty at the Office of the Commissioner of Income‑tax, East Pakistan, Dacca has been put in. In this affidavit the respondent has denied the claim of the petitioner that glass sheet is exclusively used as a building component. It has also been asserted that `concrete' in the aforesaid Notification means cement concrete and that this meaning has been confirmed by the Government of Pakistan, Industrial Division Memo. No. 808/65 dated the 8‑7‑65 and forwarded to the respondent by the Commissioner of Income‑tax, East Pakistan under his Memo. No. 7/85.62/64‑65 dated 28‑7‑65 (vide, Annexures `A' and 'Al' to the affidavit in opposition). It is also stated that although the opinion furnished by the petitioner in support of its interpretation of the words "concrete building component' may be correct from the point of view of pure science, it does not hold good from the point of View of Civil Engineering in which context the term has been used. In support of this view the respondent has annexed the opinion of Mr. K. Ahmed, Additional Chief Engineer, " Dacca (vide Annexures 'B' and 'B‑1' of this affidavit). According to the opinion of this expert glass sheet is not included in the term 'concrete Building Components'. The affidavit further proceeds to state that although glass sheet is widely used in building, it has got multifarious uses. It is also categorically stated that the glass sheets manufactured by the assessee are not used in building only but are also used for manufacture of mirrors, table tops, furniture, etc. The respondent has not replied to the supplementary affidavit of the petitioner dated the 29‑6‑

65. It is difficult to understand why this was not done. In my opinion, however, this omission has neither advanced the petitioner's case nor affected the case of the respondent. I find it difficult to place any reliance on the belated and palpably incorrect statements made in the petitioner's supple mentary affidavit even though this affidavit has not been replied to. The Court is not bound to accept a statement however improbable it may appear to be merely because it has gone unanswered by the opponent. It is difficult to believe that glass sheet is usable only as a building component and that the petitioner manufactured it and sold it for that purpose only. Before I proceed to consider the several contentions that have been raised on behalf of the petitioner by the learned Advocate Mr. A. K. Brohi, I think it desirable to mention certain facts. The relevant Notifications on the basis of which the petitioner has claimed exemption of glass sheet from the payment of sales tax are dated the 27‑6‑51 and 18‑12‑

53. The petitioner did not think that it was entitled to any exemption under those Notifications and it, therefore, duly submitted under the provisions of the Sales Tax Act, sales tax returns for the period 30‑9‑61' to 30‑9‑

64. It appears from Annexure 'A' to the petition that the petitioner for the first time in March 1965, though that the glass sheet produced by it is entitled try exemption under the aforesaid Notifications. It further appears from the petitioner's supplementary affidavit, as has already been noticed above, that two lakhs of rupees out of four lakhs of rupees which are due on account of sales taxes have already been paid by the petitioner to the respondent. Mr. A. K. Brohi has contended that in the expressions `concrete building components' in the Notification in question `concrete' governs `building' only and not `components'. Mr. Brohi's contention in this respect may be summed up in his own words thus. The expressions mean the same thing as `wooden bench components' and just as nail and screws which are made of iron or steel but not of wood are components of a wooden bench; glass sheet though not made of cement concrete is a component of a concrete building. If concrete applied to building only and `component' had been used in such a loose sense as nails and screws of `wooden bench components' matters such as bricks, mild steel bars and lots of other goods would become `concrete building components'. That these matters are not so included is clear from the fact that `brick' has been separately mentioned in the said notification as item 34 and mild steel bars have been provided by another notification being No. 9 dated 27th June 1951, as item No. 6 Products of re‑rolling mills. 1, therefore, do not think that concrete applies to building only or that component has been used in such a loose sense. Nor do the goods included in the parenthesis of the said item 40 support such a loose sense. In my opinion the Notification No. 7 Item No. 40 meant building components made of concrete. It is pertinent to note that this contention is inconsistent with the case made out by the petitioner in its petition, namely, that `concrete' governs `component' and as sheet glass is made of concrete though not of cement concrete, it is covered by the expressions `concrete building components'. In fact the petitioner appears to have taken pains to support this case by referring the matter to an expert and obtaining opinion thereon. Reading the petition and the respondent's affidavit there does not seem to be any difference between the parties on the point that `concrete' governs 'component'. It seems that realising the difficulty in its way the petitioner has sought to put forth an alternative case in the supplementary affidavit that glass sheet is a component of a concrete building. To be fair to Mr. Brohi it must be stated that he has also endeavored to argue though rather feebly that glass sheet as made of concrete although not of cement concrete, and therefore, the aforesaid Notification No. 7 covers it. Whatever be the effect of such inconsistency on the petitioner's case put before the Court I think we are put to the necessity of dealing with the petitioner's case not only as it is disclosed in the petition but also as it has finally emerged in. the arguments advanced on its behalf before the Court. Mr. Brohi has prefaced his arguments by taking us through the relevant provisions of the Sales Tax Act to show that the aforesaid notifications covered only `goods' which meant `all kinds of movable property other than actionable, claims, money, stocks, shares and securities' (vide, section 2 (6) of the Act. The relevant portion of section 3 of the Act which is the charging section read thus: (1) "There shall be levied and collected a tax on the value of (a) all goods produced or manufactured in Pakistan payable by the manufacturer or producer;" It is thus clear that the statute has levied a tax on the value of goods produced or manufactured in Pakistan and the tax is payable by the manufacturer or producer of these goods. Section 7 of the Act, however, grants to the Central Government certain power of exemption from the tax. The section reads as follows: "(1) The Central Government may, by notification in the official Gazette, exempt any goods or class of goods or any person or class of persons from the tax payable under this Act, and may also, by notification as aforesaid make a reduction in the rate of tax leviable in respect of any goods or class of goods. (2) Any exemption notified under subsection (1) may be made subject to such conditions as may be specified in the notification." Section 3 read with the aforesaid Notification No. 7 issued under section 7, therefore, means that a tax must be levied and collected on the value of all goods mentioned in section 3 (a) unless any such goods has been exempted under the said notifications. The relevant portions of said Notification No. 7 which is directly in question and Notification No. 9 which has also some bearing in the case are as follows:- Notification No. 7 dated 27th June 1951 "In exercise of the powers conferred by subsection (1) of section 7 of the Sales Tax Act, 1951 (111 of 1951), the Central Government is pleased to exempt the goods or class of goods specified hereunder from the tax payable under the said Act

34. Bricks.

40. Concrete building components (including beams, columns roofing, cement blocks, doors, windows but excluding pipes) The relevant portion of the other Notification runs as follows: Notification No. 9 dated 27th June 1951 "In exercise of the powers conferred by subsection (1) of section 7 of the Sales Tax Act, 1951 (III of 1951), the Central Government is pleased to exempt the goods or class of goods specified hereunder being goods manufactured or produced in Pakistan from the tax payable under the Act, but except in the case of goods specified in item 33 (a) nothing in this exemption shall affect the tax payable on the raw materials from which the goods are manufactured:

6. Products of re‑rolling mills.

15. Products of iron foundries and steam and hammer works.

37. Timber and bamboo, including products of saw mills.

44. Furniture. Both these notifications are to be found in the Sales‑tax Manual (corrected upto 15th August 1964) at pages 52 to

55. We are mainly concerned with the interpretation of item No. 40 of the first Notification No. 7, viz. "Concrete building components (including beams, columns roofing, cement blocks, doors, windows but excluding pipes)." Having regard to what I have said already it is necessary to understand what is meant by `concrete' in item No. 40 of the Notification. On behalf of the petitioner two meanings have been supplied; one is given in the Chamber's Twentieth Century Dictionary and the other is given by the expert Dr. F. A. Faruqi. In his opinion sent to the Managing Director of the petitioner company, the expert has given the following definition of "concrete". "Concrete means hard, solid and a compact substance made from sand and other natural minerals. It is a material or a solid mass formed by the aggregation, spontaneous union or coalescence of separate particles." The expert has not named any authority from which he has quoted the definition of the word "concrete". The dictionary meaning of the word `concrete' with reference to a. building. is as follows: Chamber's Twentieth Century Dictionary 1964 Ed. adjective: formed into one mass: the opposite of abstract, and denoting a particular thing: made of concrete; noun: a` mass formed by parts growing or sticking together: a mixture of sand, gravel, etc., and cement, used in building. The Oxford English Dictionary: A concrete or concreted mass, a concretion, compound; a concrete substance. (spec) A composition of stone chippings, and, cement; used for building under water, for foundations, pavements walls, etc. Encyclopedia Britannica, 1964, Vol. 6 Below is a quotation from a photostat copy of page 263 of the book produced before the Court by Mr. Afzalul Haque, appearing on behalf of the respondent: "Concrete is a building material consisting of a mixture in which a paste of portland cement and water binds inert aggregates into a rocklike mass as the paste hardens through chemical re‑action of the cement with water. Concrete occupies a dominant position in modern construction. It is used in highways, bridges and dams; in the construction of virtually all large buildings, sidewalks, farm structures and homes; and in airport runways, dry docks, irrigation structures, piping harbours, silos and a multitude of other major and minor construction projects. "Ever since man first started to build, he has sought a material that would bind sand and stones into a solid, formed mass. The Assyrains and Babylonians used clay for this purpose, and the ancient Egyptians advanced to the discovery of lime and gypsum as a cementing agent. The Greeks made further improvements, and the Romans developed a cement by mixing slaked like with volcanic buildings, some of which survive in an excellent state 'of preservation. Lime in some form remained the principal cementing material used until portland cement was discovered shortly after 1800. Portland cement became the dominating cementing material used in concrete construction about 1800, and the word `concrete' without a qualifying term has since been used mainly as an abbreviation of `portland cement concrete'. Limited use is also made of other cements having properties similar to portland cement, such as natural cement and blast furnace slaq cement." It will thus be noticed that all the definitions except the one given by the petitioners' expert agree that cement is an essential ingredient of `concrete' for or used in building. I may state here that have only quoted the meaning of `concrete' is understood in relation to a building. It will be evident from the cases of either parties that there is an undercurrent of agreement between them that the word `concrete',' or the word `component' in the notification should be understood with reference to their context and with reference to a building. This view finds support from the following passage appearing in Craies' Statute Law, 6th Ed. at p. 162: "There are two rules as to the way in which terms and expressions are to be construed when used in an Act of Parliament. The first rule is that general statutes will prima facie be presumed to use words in their popular sense. This rule was stated by Lord Tenierden in Att. Gen. v. Winstanley (1831) 2 D & C 1302, 310 "the words of an act of Parliament which are not applied to any particular science wart are to be construed "as they are understood in common language." Critical refinements and subtle distinctions are to be avoided, and the obvious and popular meaning of the language should, as a general rule be‑followed . . . . . . In other words, as was said by Pollock B in Grenfell v. Irland Revenue Commissioners (1876) 1 Exh. D. 242, 248). If a statute contains language which is capable of being construed in a popular sense, such "a Itatute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words `popular sense' that sense which people conversant with the subject‑matter with which the statute is dealing would attribute to it." The second rule is that if the statute is one passed with reference to a particular trade, business or transaction, words are used therein which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning which may differ from the ordinary or popular meaning." It is significant that although the notification was issued in year 1951 and glass sheets have been manufactured in the country for quite a number of years no other manufacturer of glass sheet seems to have thought that it was entitled to exemption under the notification. The petitioner itself did not think it so until March 1965. I am, therefore, of opinion that the word concrete used in item 40 of the notification No. 7 means with reference to the context and in its popular sense cement concrete and that glass sheet is not a concrete building component. I now proceed to consider what is meant by item No. 40 of the said Notification read as whole, "including" according to Mr. Brohi is capable of three interpretations, namely, (i) it is used to illustrate the meaning of the words `concrete building components'; (ii) it is used as an enlargement of the meaning of those expressions; and (iii) it is used by way of modification of the meaning of those expressions. None of the meanings helps Mr. Brohi to bring glass sheet within the meaning of `concrete building components'. It seems to me that 'cement blocks' have been included by way of enlargement of the expressions 'concrete building components' and "doors and windows" have been included by way of modification because of the fact that they are so much part and parcel of a building that they are included in those expressions by express mention. Be that as it may, in the facts and circumstances of the case I think we are not called upon to express any definite opinion upon the various items included in the parenthesis. A noticeable feature of this parenthesis is that each one of the items included in it bears a specific shape which is at once identifiable as component of a building. It is true that glass sheet is and may be used in doors, windows and partitions in a building; but unless it is put in a shape which at once strikes the mind as a component of .a building and readily identifiable as such, glass sheet does not come within the exemption of item No. 40 of Notification No. 7 dated the 27‑6‑

51. It is an accepted principle of construction of statute that a person who claims exemption must prove that he is entitled to it. In the present case, unless the petitioner can show that it is exempted from tax by operation of item No. 40 of Notification No. 7 dated the 27‑6‑51 glass sheet is taxable under section 3 of the Act. The view I hold is supported by a decision of the Supreme Court in the case of Commissioner of Income‑tax, Bihar and Orissa v. Ramakrishna Deo (35 I T R 312). On the facts of this case I hold that the petitioner has failed to prove that glass sheet comes within the exemption contained in item No. 40 of Notification No. 7 dated the 27‑6‑

51. Apart from the merit of the case there has been inordinate delay in making this application. In consideration of the facts that the Notifications are of the years 1951 and 1953 and that the petitioner felt itself bound under the Act to pay Sales Tax on the glass sheet and in fact submitted returns thereunder, and paid Rupees Two lakhs in the shape of sales tax on glass sheets I think the application under Article 98 of the Constitution must be considered to 'have been inordinately delayed. The mere fact that because a rule nisi has already been issued the delay should be considered as condoned does not commend itself to me. The Court which finally hears the rule is not prevented from considering the case in all its aspects and arriving at a decision on all the points relevant to the case. I, therefore, think that on the ground of delay also the rule should be discharged. It may be mentioned here that a number of decisions have been cited before us on behalf of the petitioner to emphasise settled principle of construction that taxing statutes should be strictly construed so that Government does not get money which the Legislature did not intend to make liable to taxes. I have not been unmindful of this principle of construction while arriving at my conclusions. For the reasons stated above, I discharge the rule with costs which I assess at five Gold Mohurs. A. M. SAYEM, J.‑I agree with (sic) the petitioner company has failed to substantiate its claim that sheet glass manufactured by it is covered by item 40 of Notification (S. T.) No. 7 issued under section 7 (1) of the Sales Tax Act, 1951, which exempts "concrete building components" from payment of sale tax, and as such the rule should be discharged. I do not think, however, that Mr. Brohi was wrong in claiming that the word 'concrete' governs the word 'building'. It may be mentioned that this was also the stand taken by the petitioner in the supplementary affidavit sworn on 29‑6‑1965, the ‑ date on which the rule was issued by this Court, though the petitioner's original stand, as disclosed in the petition, was that it was concrete components of buildings that were exempted under the said item: Mr. Brohi made a passing reference to expert opinions, obtained by the petitioner and the respondent, on the question whether sheet glass was a kind of concrete, and advised that the Court was not bound by such opinions, and that it was for 'the Court to arrive at its own decision on the question. He left the matter at that. Indeed, Mr. Brohi was in no need of stressing the point further, since his clear stand was that what were exempted under the item in question were the components of concrete buildings. In support of the stand Mr. Brohi insisted that the word 'concrete' could govern building as 'wooden' would govern 'bench' in the phrase "wooden bench components". Further more, he insisted that the very inclusion of doors and windows in the item demolished the theory that concrete could have been intended to govern `component', rather than building. On a plain reading of what have been included in the item in question and the manner of placing of the two words `concrete' and `building' therein, I am inclined to accept Mr. Brohi's contention that it was components of concrete buildings that were intended to be exempted, and not concrete components of buildings. If Government intended otherwise, it would not have exempted doors and windows that are so far known to be made of timber or iron. Manufacture of doors and windows of concrete does not seem also to be a practicable proposition, though I must confess that some years back I happened once to come across a small concrete window with a glass pane fitted in each of its leaves. Made of concrete, doors and windows of normal size will be heavy and unwieldy, since, obviously, iron rods and wires would go into their making and instead of hinges some other heavier contrivances would need be fitted into them to make the leaves turn and revolve round axes for the purpose of opening and closing them. It has not been claimed in the affidavit in opposition that doors and windows are also made of concrete, and that it is that kind of doors and windows alone that have been exempted under the said item from payment of sales tax. The learned Advocate for the respondent frankly conceded that he had no information that doors and windows are also made of concrete, though he claimed that possibility of their being so made in future could not altogether be excluded. It does not appeal to reason that the provision for exemption was made keeping in view the future contingency of some one manufacturing or making doors and windows of concrete. It may be presumed that existing facts alone entered the considera tion of Government of providing for exemptions in the said notification. I do not think, therefore, that the word `concrete' could have been intended to qualify the word `components'. I would hold that the item in question exempts goods that fall in a certain category of components of buildings, not necessarily made of concrete. A question may arise as to if by concrete building, buildings of brick masonary were also meant. I would prefer to answer the question in the affirmative, I am inclined to think that, regard being and to the context, we will not be justified in patting too narrow a construction upon the word "concrete". No building can be wholly of concrete, as has been taken note of in item 40 itself. Such a construction will frustrate the very object behind the exemption, which appears to be of giving a fillip to private endeavours in house building. By concrete building, in my opinion Government also intended buildings made of brick masonary, if which cement and sand play an essential part, being materials that join and bind the bricks. It cannot be disputed that such buildings comprise a large percentage of work in concrete in the real sense, namely of a mixture of cement, sand and gravel, such as in concrete layings in the foundation, concrete flooring, concrete damp proof, concrete lintel (which these days go round the entire building at the door level) concrete pillars or columns, concrete beams, concrete drop walls, concrete railings, concrete ventilators and concrete roofing: So far so good; but that can be of no assistance to the petitioner, who has yet to establish that sheet glass manufactured by it is used as doors and windows or some other components of such buildings. It has been claimed by the petitioner that sheet glass manufactured by it is meant to be, and is, used in doors and windows and also other components of a building. The respondent does not seriously dispute this claim. The respondent, however points out that sheet glass has a multipurpose use, and that apart from being used in components of buildings it is also used for other purposes, such as in furniture making, in the making of railway compartments, aero planes and ship‑building. By itself it cannot inevitably be connected with building. It has to be cut into size and fitted into sockets or frames, in order to make out a building component. The illustrations included within the brackets in item 40 are all such finished products as, by their very shape and form, can be identified. as building components. The illustrations are, in my view, indicative of an intention to restrict the 'meaning of the word `components' to finished goods that are used as components of buildings as distinguished from materials that go into their making Sheet glass is only something that goes, according to the petitioner also, into the making of building components. Obviously,, by itself it is not such a component. It is not claimed that Sheet glass manufactured by the petitioner is released in the shape of doors or windows, or of some other building components that can at once be identified as such. Reference in this connection may be made to timber which is used in such components. But timber has been exempted by a separate item in a notification being Notification (Sales Tax) No. 9, dated the 27th June 1951, under which exemptions have been provided for in respect of certain goods manufactured or produced in Pakistan, the raw material of which however have been excepted from exemption. From this also it can be inferred that by item 40 of Notification No. 7, materials used in the making of building components were not intended to be exempted. Sheet glass being one such material; and there being no dispute that it has not been specifically exempted, the petitioner's claim for exemption must be rejected. I would only add that if the petitioner's original case, as was sought to be made out in the petition, namely, that item 40 of the notification in question exempted concrete components of buildings were pressed, then even if it were permissible to accept the contention that sheet glass was a building component within toe meaning of the word as used in the item, I would hold against the petitioner, since in the context of building, as pointed by my learned brother Salahuddin Ahmed, J., concrete can only mean a thing made of a mixture of which cement is the main ingredient. Having held against the petitioner on merits, I do' not think it necessary to advert to certain preliminary objections raised against the maintainability of the petition. It will suffice to say that I find no substance in any of those objections. ABDULLA, J.‑I regret that I have not been able to agree with my learned brothers on the main point in issue between the, parties in this case. The petitioner has filed this petition for declaration that a certain order of the Sales Tax Officer directing him to pay sales tax on the goods, namely, glass sheets, manufactured by the petitioner is without lawful authority and of no legal effect and for directing the respondents to forbear from giving effect to the said order which is embodied in a letter No. T. S. 559/4063 dated 22/23‑6‑

65. The petitioner has further prayed for declaring that glass sheets manufactured by the petitioner are exempted from sales tax by Notification No. 7 dated 27‑6‑51 as amended by Notification No. 5, dated 18‑12‑53, under section 7 (1) of the Sales Tax Act, 1951. The basis of the petitioner's claim is that the glass sheets manufactured by them falls under item 40 of the said Notification relating to goods exempted from sales tax. Item No. 40 reads as follows: "

40. Concrete building components (including beams, columns, roofing cements blocks, doors, windows, but excluding pipes)." The petitioner has given a further affidavit in which it has been categorically asserted that the glass sheets manufactured by the petitioner are exclusively used as building components. It is alleged in the petition that on the petitioner's claiming the exemption from sales tax the Sales Tax Officer directed the petitioner to substantiate the claim whereupon the petitioner obtained the opinion of Senior Research Officer of the Pakistan Council of Scientific and Industrial Research whose firm view was that sheet and plate glass are "concrete building com ponents". The Sales Tax Officer, however did not accept the contention of the petitioner and directed the petitioner to pay all arrears of sales tax within June 1965. The petitioner moved this Court under Article 98 of the Constitution and obtained the present rule nisi on 29‑6‑

65. The respondent, namely, the Sales Tax Officer concerned has entered appearance and has filed an affidavit‑in‑opposition in which he has entered a communication from the Industry Division of the Government of Pakistan to the effect that glass does not come under the term "concrete product" as "concrete" generally means "cement concrete" and therefore, the department was of the view that glass cannot be classified as a "concrete building component". The respondent has also annexed the reply to the letter of the Commissioner of Income‑tax by the Additional Chief Engineer in which the said Additional Chief Engineer has stated that glass sheets have multipurpose uses and cannot be treated as a "concrete building component". The said Additional Chief Engineer is of the view that the opinion of the Pakistan Council for Scientific and Industrial Research is not correct. The respondent has, however, in the said affidavit‑in‑opposition himself admitted that the opinion of the said Council may be correct from the point of view of pure science but it does not hold good from the point of view of civil engineering in which Context it is alleged that the term has been used. The respondent further stated that concrete means cement concrete as has been held by the Industries Division of .the Government of Pakistan in their Memorandum dated 8‑7‑

65. The petitioner, thereafter, filed a rejoinder in which it was alleged that the expression "concrete building component" is a term of art and has to be understood in its technical sense and has referred to the other terms of the said item as being pointers showing that glass is a "concrete building component" and the further asserted that it was for the respondent to show that glass so used was taxable. At the hearing, a preliminary point has been taken on behalf of the respondent regarding the maintainability of this application. It has been urged first that the petition under Article 93 of the Constitution cannot be maintained as the petitioner is not an "aggrieved" person; secondly, the petition involves investigation and decision on complicated and disputed questions of fact which cannot be decided in a summary proceeding like that under Article 98; thirdly, it has been urged that in view of the fact that a complete machinery has been provided by the statute providing remedies which are fuller, exhausting and adequate the petitioner is debarred from seeking relief under Article 98 of the Constitution as the bar is contained in the Article itself. With regard to the first point of this ground the facts as revealed by the petitioner show that the petitioner is an aggrieved person. The simple case of the petitioner is that his products, namely, glass sheets are concrete building components and as such exempt from leavy of Sales Tax, but the Department holding the other view has directed him to pay up the arrears of sales tax for the period 1961 to 1962 by the impugned order contained in letter dated 22/23‑6‑65 and he wants a declaration that that order was without any lawful authority. Mr. Afzalul Haq appearing on behalf of the respondents has urged that the order contained in the said letter is premature, that there are other steps to be taken as prescribed by section 10 (3), 12 of the Act and Rule 35 of the Sales Tax Rules before which the petitioner can be said to be liable to pay any tax. He has urged that the petitioner is not bound to make any payment on this letter which does not comply with the provisions of law. As such the petitioner has not yet suffered any injury and he cannot move this Court under Article 98 of the Constitution. On this argument of the learned Advocate for the Respondent himself, the rule should be made absolute. The petitioner has sought in his petition to have the impugned order set aside on the ground that it was made without any lawful authority and the Advocate for the respondent concedes that the order has no legal basis. Moreover, in a recent decision of this Court, namely, in the case of Mr. Mahmud v. The Sydicate of the Dacca University in Petition No. 51 of 1961, it has been held that the right to make an, application under Article 98 has been given to an aggrieved party and not merely to such person who has been `injured' by a violation of right or franchise or by a threat thereupon. It has been held in that case that Article 98 does not say that only such a party who can say that his right has been invaded upon and that he has been injured in such a sense can make an application under it. It lids further been held that if the impeached Act is without lawful authority and the applicant would be hit by the illegality in the sense that the Act may cause `grief' to the applicant it must be held that the application under Article 98 is competent. Applying this principle to the present case it is obvious that the petitioner has been aggrieved by the decision of the respondent that glass sheets are liable to the levy of sales tax. Although the present demand contained in that said letter may not be legal yet the liability to pay the tax has already accrued and the petitioner has certainly a grief that he has been made assessable whereas his contention is that so far as this item is concerned he is .not liable to pay any sales tax. So far as the second ground on maintainability is concerned the question in my opinion requires no investigation of facts. It involves only the interpretation of the language bf the exemption clause. Both parties have given their interpretation and both parties have annexed opinions of experts. We repeatedly asked Mr. Afzalul Huq on what point he would adduce any evidence apart from the materials on record. He could not give any answer excepting that he could have examined mere experts. We do not see what further help any other `expert' would have rendered. Moreover, the opinion of experts is only admissible to aid the Court to come to its own decision. The primary responsibility is that of the Court. The Court can call for the opinions of experts if it feels it necessary. I do not think that any further help of any other expert is necessary to come to a decision on the point raised by the petitioner. Moreover the respondent has not in his affidavit‑in ‑opposition given any indication that he wants to examine more experts. With regard to the third point as to the maintainability of the petition Mr. Afzalul Huq relied on a decision of a Division Bench of this Court quoted in 1960 P L D Dacca 523 where a similar question arose. The facts of that case are that the petitioners who were Aratdars (Brokers) had claimed exemption from sales tax urging that they did not effect any sales as contemplated by the Sales Tax Act and as such the order of the Sales Tax Authorities directing them to pay tax on sales effected through them was in excess of their jurisdiction. Although the decision of the Supreme Court in Tariq Transport's case (P L D 1958 S C (Pak.) 437) and the case of S. A. Haroon (P L D 1959 S C (Pak.) 177) was placed before 'their Lordships in support of the contention that the petitioner need not resort to the Tribunal set up by the special law when the authorities exceed their jurisdiction but can come directly to the High Court, their Lordships were pleased to hold that as in that case the petitioner could seek to ventilate his grievances before the Tribunal set up by the statute and no writ of certiorari or mandamus or any other discretionary order of that nature was available to the petitioner. Mr. Brohi has argued following the decision in the case of Young v. Bistol Aeroplane Corporation ((1944) 2 A E R 293) that the Court must refuse to follow a decision of its own which though not expressly overruled is inconsistent with a decision of a Superior Court, namely, the Supreme Court in this case. His contention is that the purport of the decision of the Supreme Court in the said two cases hats not been properly appreciated by the Division Bench of this Court in the decision relied on by Mr. Afzalul Huq. The purport, according to him of those two decisions was that where the authority set up by a statute acts in excess of the jurisdiction conferred on it the case stands on a different footing and it would be an unnecessary step to resort to the tribunals set up by the said statutes and a mere prolongation of the proceeding which eventually the Court must hold to be void for lack of jurisdiction. He has shown the following observation of the Supreme Court in Tariq Transport's case: "Cases of absence or excess of jurisdiction, however, stand on a different footing and are an exception to the general rule just stated. An appeal, while adequate to correct mere error in the exercise of jurisdiction is often inadequate to redress or prevent a wrong done in the absence or excess of jurisdiction. If a Tribunal has no jurisdiction either in respect of the subject‑matter in, litigation or the parties before it or the territory to which the disputes relates or because of its own defective constitution or the illegality of the order proceedings are void ab initio and an appeal in such a case is an unnecessary step and more prolongation of the proceedings which eventually the Court must hold to be void for lack of jurisdiction. In such cases certiorari as to as would a Court of equity. Thus there have been several cases in England where certiorari if the Tribunal acted without jurisdiction though a right of appeal existed." Mr. Brohi has argued that the above observation of the Supreme Court clearly lays down that even under Article 170 of the previous Constitution (i.e. the Constitution of 1956), which was more limited in scope than Article 98 of the present Constitution, resort to the Tribunal set up by the Statute would be a useless and unnecessary step is a case where the authorities have acted beyond their jurisdiction. He has drawn our attention to the case of Nagina Silk Mill v. The Income‑tax Officer, A. Ward (P L D 1963 S C 322) where the Supreme Court has reiterated .its former opinion stating that in case of absence or excess of jurisdiction or where the impugned orders suffer from illegality on the face of the record a certiorari may be granted even though the right of statutory appeal had not been availed of. If the application for certiorari is made by the party aggrieved, then it ought to be granted ex debito justitiae and the High Court has not the general discretion which it would have when the application is made by a member of the public who is not personally concerned. Mr. Brohi has argued that the petitioner is an aggrieved person and he has at right to move this High Court for relief as laid down by the Supreme Court in this case. Mr. Brohi has then argued that in any event the provisions of Article 98 of the present Constitution are much wider than the provision of Article 70 of the 1956 Constitution. By the very wordings of the 1956 Constitution this High Court's powers were co‑extensive with the powers of the Courts of England which had the right to issue prerogative writs. But there is no such limitation in Article 98 of the present Constitution. Further the provision for declaring that an act of a person performing the functions of the Central Government, Provincial or Local authority are without lawful authority was an innovation which .has no parallel in the previous provision. As indicated already, this Court has also in the case of Dr. A. N. M. Mahmud v. The Syndicate of the Dacca University in Petition No. 51 of 1966 considered this question from the point of view of the person entitled to approach this Court under the said Article wherein also the wider scope of the provision of Article 98 has been noted. I am, therefore, constrained to hold that the petitioner has rightly filed this application under Article 98 without resort to the tribunal set up by the Sales Tax Act. The question could no have been properly adjudicated before a tribunal which was a part of the same set up as the question is one of jurisdiction regarding the subject‑matter of the litigation. Fiscal authorities whether original or Appellate or Revisional belong to the same set up and as has been observed by the Supreme Court in Tariq Transport's case, appeal to such a tribunal has often been found to be "inadequate to redress or prevent a wrong done in the absence or excess of jurisdiction." Besides, the case relied on by the Advocate for the respondent, was under Article 170 of the previous Constitution and in my opinion the restrictions or limitations which had appeared to such applications has been removed by the altogether new wordings defining the powers of the High Court under Article 98 of the Constitution. An analysis will show that similar powers as those of issuing prerogative writs are vested in the High Court by Article 98 of the Constitution yet these are not the same powers. The powers of this Court, therefore, under Article 98 are to be examined from the point of view of the provisions of Article 98 of the Constitution and not with reference to the power of the superior Courts of England to issue prerogative writs. In that view, also, the observation of their Lordships of the said Division Bench is not applicable in determining the issue raised in the present application. Mr. Afzalul Haq has also referred to the decision reported in A I R 1964 S C

419. The decision of the Supreme Court is based on the provisions of Article 226 of the Indian Constitution which reads thus: "226 (1) Notwithstanding anything in Article 32, every' High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases any Government within those territories has directions, order or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them, for the enforcement of any of the rights conferred by part II and for any other purpose. (2) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32." It will be observed that the power is confined to issuance of "directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them". There is a fundamental difference between the powers of our High Court under Article 98 and of those conferred on the Indian High Courts by their constitution under Article 226 and, therefore, in my opinion the observation of the Supreme Court of India cannot be invoked to aid the respondent in deciding the question raised before us. Thus examining from all the angles raised by the respondent it is clear to me that the petitioner was within his right in making this application before this Court without resorting to the tribunal set up under the Statute, namely, the Sales Tax Act, I may, before leaving the subject, also refer to the question of adequacy of the alternative relief. It cannot be denied that this Court is fully competent to give the relief as prayed for by the petitioner. The alternative relief, namely, appeal and revision and reference prescribed by Sales Tax Act or a suit would require comparatively long period for decision and it is represented further that in the mean time the petitioner would have to deposit the assessed tax. It appears from the letter of the Sales Tax Officer that the tax has been determined according to the previous returns filed by the petitioner. Apparently the petitioner had filed returns for the period but had not paid the tax previously as is required under section 12 (1) of the Sales Tax Act. This was orally represented to us by the lawyer on behalf of the respondent, although no such statement has been made either in the petition or in the affidavit in opposition. The requirement of section 12 (1) of the Sales Tax Act is that the tax is to be deposited by the manufacturer suo motu at the time of filing the returns subject to revision under section 10 of the Sales Tax Act. Before the Assessee can file an appeal according to the provisions of section 14 of the Sales Tax Act he is to satisfy the Appellate Assistant Commissioner that the tax admitted to be due has been paid. It is contended by the petitioner that his appeal would not be entertained unless he paid the tax which was shown in his previous returns when he had not realised that he was liable to exemption under item 40 of the said Notification under section

7. Although I have my doubts whether the previous payments of tax was necessary in these circumstances, that is, where the Assessee is totally denying his liability to pay the tax yet, from the order contained in the impugned letter it is debatable whether the Appellate Assistant Commissioner would admit the appeal without deposit of the sales tax demanding in the said letter: So far as the question of adequacy is concerned, in my opinion the relief provided for in the statute is not as speedy and convenient as an application under Article 98.I Moreover it has been observed by the Supreme Court in the case of the Burma Oil Company (Pakistan Trading). v,. The Trustees of the Port of Chittagong (P L D 1962 S C 113) that: "We consider that since the question which arose was one of fiscal right based upon a statutory instrument, it was as easily and conveniently determined in a writ petition as by means of a suit. By the excepting notification, a duty was cast upon the taxing authority, viz. the Port Trustees to relieve the subject against certain impositions and thereby a corresponding right to such relief was created in favour of the subject. Mandamus is in every way an appropriate remedy for the assertion of such a right by enforcement of the corresponding; duty." These observations apply to the present case. The question of adequacy has also been considered by a Full Bench of the West Pakistan High Court (Lahore Bench) in the case of Mehboob Ali Malik v. The Province of West Pakistan (P L D 1963 Lah. 575) wherein the then Chief Justice of the said High Court has laid down: "The correct position, therefore, seems to be the adequacy of an alternative remedy is to be judged in relation to the requisite relief, (i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an "other adequate remedy" within the meaning of Article 98. (ii) If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief the `adequacy' of the alternative must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article 98." Applying this principle I held further that the alternative remedy was not as adequate as in the case of an application under Article 98 by the petitioner. In this connection a point has been raised that the petitioner having submitted to the jurisdiction of the Sales Tax Authority though not precluded from approaching this Court has delayed so long that on the ground pf delay alone this application ought to be rejected and the petitioner must resort to Civil suit and not take advantage of the provisions of Article 98 of the Constitution. In my opinion the observation made above regarding the adequacy of the relief apply with equal force to this proposition. It is true that the petitioner had filed returns but that was under a mistaken assumption. When it realised that it was not liable to pay the tax it immediately approached the Authority and on its refusal to hold that the petitioner was liable to claim the exemption by his said letter dated 31‑3‑63 it obtained a rule from this Court on 29‑6‑

65. The lawyer appearing for the respondent has also argued that the tax payable by the order in the said letter is not yet legally payable. So there has been no delay on the part of the petitioner. Moreover, the petition having been admitted the question of delay must be presumed, prima facie, to have been waived by the Bench admitting the petition. In these circumstances, I cannot hold that the petitioner's application is liable to be dismissed on the ground of delay or acquiescence. The next question which arises for consideration is that of onus of proof. It has been urged on behalf of the respondent that it was for the petitioner to establish that it was entitled to the exemption contemplated by item No. 40 of the Notification under section 7 of the Act. In my opinion in a case like this the question of onus is not of much importance. The petitioner has claimed exemption and has submitted grounds on which it claims the exemption. It will be for us to adjudicate whether the petitioner is entitled to the exemption on a plain reading of the exemption clause itself and admitted facts of the case. Now let me take up the question on merits. Mr. Brohi has first referred to the plain reading of the item 40 which reads as follows: "Concrete building component (including beams, columns, roofing, cement blocks, doors, windows but excluding pipes)." Mr. Brohi has argued that the exemption is accorded to component of concrete building. In support of his argument he has pointed out that one can visualise cement concrete beams, columns, roofing and even blocks and pipes but one cannot visualise cement concrete doors and windows. The inclusion of these two items is a pointer to the fact that the intention was to exclude components of a concrete building which might be of different materials (as doors and windows are of different materials). He has argued that if by the word concrete one is to understand only cement concrete then there would have been no necessity to reiterate the word cement in the word cement blocks. Then he has further argued that pipes are generally made out of iron but even if they are made of cement concrete there is no reason why they should be excluded. Averting to the word "including" he has argued that it may mean three things (a) an illustration of items contemplated by the authority, (2) an enlargement of the scope of the item and (3) modification of the item. In this case be wants us to read it as meaning to be illustration of the various components of a concrete building. If this meaning be accepted then it is obvious that all components of concrete buildings are exempted from Sales Tax. When asked by the Court whether he could give any indication why the Government exempted this item his reply was that the policy of the Government was to encourage the house building programme as a whole, and not as a stimulus to manufacture of cement concrete products. Mr. Afzalul Huq on the other hand has argued that "concrete building component" can be interpreted as firstly "constituent parts of a building which is made of concrete" as interpreted by Mr. Brohi or secondly, "any structural material which is made of concrete" and he wanted us to accept the second meaning of the phrase. He has referred to the Encyclopedia Britannica to show that concrete in common parlance means a mixture ‑ of sand, gravel and portland cement. According to his cement is an essential element of concrete and as a glass sheet does not contain cement it is not structural material as contemplated under item

40. Mr. Afzalul Huq in asking us to reject the ‑first meaning of the phrase has urged that a concrete building is not a practical proposition as it would involve huge costs 'and the structure would be heavy. Before proceeding to" adjudicate on the question it may be pointed out that a concrete building is not at all an impracticable proposition and it is a well‑known and fast developing method of construction which is replacing older methods of construction. Moreover, a concrete building need not necessarily mean that the entire building be made of cement concrete. When one speaks of a brick building one does not visualise that everything is 'made of brick. One only lays stress on the main component of the building being bricks. Similarly a concrete building signifies a building the main component of which is cement concrete as is understood by the general public. Now coming back to the materials on record it. is to be observed that the definition of the word `concrete' in the opinion of the Pakistan Council of Scientific and Industrial Research annexed to the petition reads as follows: "Concrete means, hard, solid and a compact substance made from sand and other natural minerals. It is a material or a solid mass formed by the aggregation, spontaneous union or coalescene of separate articles." The respondent in his affidavit‑in‑opposition has admitted that the opinion may be correct from the point of view of pure science but it does not hold good from the point of view of Civil Engineering in which context the term has been used: In the opinion annexed to the affidavit‑in‑opposition by the respondent Annexure A the word `concrete' has not been defined. On the other hand it has merely been stated that "Glass" does not come under the term "concrete product" as it generally means "cement concrete" and in the other opinion Annexure B annexed to the affidavit‑in‑opposition given by the Additional Chief Engineer, there is also no attempt no define the word concrete. It has only been stated in the said opinion of the Additional Chief Engineer that "Glass sheet has a multipurpose ‑use and cannot be treated as a concrete building component". Now taking up the meaning of the term concrete building component as given by Mr. Brohi which coincides with that of the first meaning of the phrase as given by the respondent 1, namely, that the phrase means components of a concrete building one has to give the word concrete a meaning which would include as one of its components cement. This would nullify the opinion of the Pakistan Council of Scientific and Industrial Research which is based on the definition given by it of the word `concrete' which does not include necessarily the presence of cement. It appears to us that the opinion of the Council is based on the argument that concrete is the resulting product of mixture of several ingredients. Cement concrete is one such product. Glass sheets is another such product. Therefore, concrete building components would include also glass sheets as it is accepted that glass sheets are building components. This appears also to have been the case of the petitioner in the original petition. In paragraph 9 the petitioner states his case which reads as follows: "That the word `concrete' not having been classified in the notification its meaning cannot be restricted to any particular kind of concrete product. The word `concrete' includes cement concrete, re‑inforced cement, bricks, natural stone, sand, lime, bricks, fiber glass, clay products, lime and cement products, plate and sheet glass, etc." Mr. Brohi in giving his interpretation of the term "concrete building component" as meaning components of a ‑concrete building has thus deviated from the case of the petitioner as made out in the original petition. In my opinion the second meaning given by the lawyer for the respondent is more correct so far as it signifies that the word `concrete' should govern the phrase components, that is, the phrase means "concrete components of a building". But then, I do not see how the word concrete has to mean cement concrete which the said lawyer wants us to accept. For this we have to add the word 'cement' before the word `concrete'. The respondent does not challenge the correctness of the definition of concrete given by the Council but states that it is only acceptable for a purely scientific point of view. In other words he admits that the definition is correct but in the contempt the word `concrete' must be taken to stand for cement concrete as the term has been used from an Engineering point of view. For this we are asked to read into the words of the said item 40 things which are not expressly mentioned. It is a plausible explanation but the burden of taxation cannot be fastened on a citizen reading into the item things not mentioned therein. The first meaning of the word `concrete' as given in the Chamber's Dictionary is "formed into one mass", used as an adjective and used as a noun, a mass formed by parts growing or sticking together, and for example, it is stated, a mixture of lime, sand, pebbles, etc. and cement used in a building. Taking it either as an adjective or a noun standing in a position to the word component the first meaning that can be given to the word concrete is a compound of different substances forming one mass as opposed to loose ingredients. Looked from this angle glass is certainly a concrete component of a building. When the Legislature has not itself given an indication that it has used the word concrete in special or in its restricted sense I do not see how the general meaning can be excluded. A question has been raised that although according to the ordinary meaning of the term "concrete" glass sheet can be taken as concrete it does not become a building component by itself. It has to be cut and fitted into other material before it can be termed to have become a building component. In this connection it is to be noted that the further affidavit of the petitioner reveals. "The glass sheets produced by the petitioner‑company is commercially used and usable only as building materials . . ." In paragraph 2, it is further stated, "that those sheets are commercially and primarily meant for concrete building components and cannot be used in any other way. As an abuse these may be used as table top though these sheets are not meant for that nor they are sold for that purpose. In paragraphs 4, 5 and 6 the same statement is repeated and finally in paragraph 7 it is stated "that the sheets produced by the petitioner‑company is thus exclusively and commercially meant and are used in concrete building as one of its components and they are also sold by the petitioner‑company as such and are commercially used for that purpose and as such they are exempted from levy of sales taxes as stated in the original petition". There is no reply denying these statements in the affidavit‑in‑opposition filed by the respondent. It has been 'repeatedly held that in proceedings decided on affidavits if there is no denial of a! statement of fact it must be accepted as admitted by the opposite party. The respondent in paragraph 4 of his affidavit‑in opposition has merely stated that glass sheets are not used! exclusively as building components in reply to paragraph 1 of the original petition but the respondent has not denied any where in the affidavit‑in‑opposition the claim of the petitioner that the glass sheets manufactured by the petitioner are exclusively for the purpose of use as components of a building. In paragraph 10 of the affidavit‑in‑opposition the respondent has stated "that with regard to the statement made in paragraph 11 of the petition, it is submitted that though Glass sheet is widely used in building, it has got multifarious uses. The sheet glass manufactured by the assessee are not only used in building but also used for manufacture of mirrors, table tops, furniture, etc. In paragraph 11 of the petition there is no claim to the exclusive use of the glass sheet manufactured by the petitioner as a building component. So the statement made in paragraph 10 of the affidavit‑in‑opposition to the effect that sheet glass manu factured by the Assessee is not exclusively used as building components have been rather loosely used and in context of the paragraph to which it is a reply it must be taken that the respondent here was not asking a statement referring to the glass sheet, manufactured by the petitioner‑company. In fact the petitioner in his further affidavit has admitted that the glass sheets manufactured by the petitioner can be used for other purposes but it has claimed that it would be an `abuse' and not an `use' of its products. Mr. Brohi has stated that if it is found that the glass sheets manufactured by the petitioner is being used for instance, in the manufacture of mirror then the authorities will be able to tax the manufacturer of such mirrors. The whole scheme of the Sales Tax Act is to tax at only one source; the same item cannot be taxed twice. If an article originally exempted from taxation become taxable because some other processes are applied to it the original source cannot also be taxed. Looked at from another point of view, no building component can be used by itself. Bricks of cement blocks are undeniably building components. But one knows they have to be used with some sort of mortar and often the original bricks have to be cut into smaller pieces to fit in with the structure. If the glass sheets manu factured by the petitioner is to be cut to fit in with the structure, it will no less be a building component. The golden rule of interpretation of statutes is to adhere to the ordinary meaning of the words used unless that is at variance with the intention of the Legislature to be collected from the statute itself or if it leads to any manifest absurdity or repugnance. In interpreting fiscal statutes it has been the established practice of the Courts to interpret the words of such a statute strictly. It has been repeatedly held if there be any doubt or if there be two alternative interpretations possible a taxing statute must be interpreted in favour of the assessee and against the Revenue Authority. It has been further held that while interpreting any statute imposing pecuniary burden if there is a reasonable doubt with record to the construction of any burdensome provisions the construction most beneficial to the assessee is to be adopted. Here we find that the interpretation in favour of the Revenue Authority to be plausible one has to read into the words of the exemption clause words which are not there. On the other hand the ordinary meaning of the word as stated above gives the assessee the benefit of the exemption claimed by him. It is true that when an exemption from taxation is claimed the words of the exempting clause must be extrictly construed in favour of the state. It is based on the theory that the obligation to pay tax is co‑extensive with the protection received by the subject and in obtaining an exemption from taxation the particular subject is seeking relief from the obligation at the cost of other assessees. I am aware of this line of decisions but in view of the fact that the words of item 40 of the said notification in its plain reading entitles the petitioner to the exemption specified therein, the Court cannot go beyond the wordings of the clause to withhold that relief on the theory of equal obligation for equal protection. The intention of the Legislature has been held to be necessary to be taken into consideration in construing a fiscal statute. I have gone through the list of exemptions under the said Notification. They axe disjointed items and no one particular intention can be derived from the reading of the same. So far as item 40 itself is concerned if the second interpretation of the phrase as given by the respondent is accepted, the intention may be to protect the cement product factories but it is equally possible that the policy of the legislation was to encourage house building programme as a whole and not to encourage the particular section of the community engaged in producing particular types of house building materials. Lastly the question arises that this might be taken to be as an evasion of the tax. Evasion has been held to mean either of No things. It may mean an evasion of the Act by something which, while it evades the Act, is within the sense of it, or it may mean an evasion of the Act by doing something to which the Act does not apply. Neither of the two sorts of evasion as stated above arises in this case. "Petitioner only submits that he is not liable to pay tax on the ground that he comes under the exemption mentioned under item 40, I do not see how he can be held to have incurred even moral censure in trying to show that he is not subject to the taxation sought to be imposed by the Revenue Authorities. Keeping these principles in view let me once more advert to the exemption clause. Plain reading of the expression 'concrete building components' means "concrete components of a building" as opposed to loose components like sand, lime, gravel, etc. that is to say a building component which may be composed of different materials but has been made to stick together. I accept the Dictionary meaning of the term 'concrete' as opposed to loose materials. The definition of the term 'concrete' as given by the Pakistan Council of Scientific and Industrial Research falls short of the dictionary meaning of the word. According to that definition 'concrete' means hard solid and compact substance made from sand and other natural minerals. According to the said Council it is a material or solid mass formed by the aggregation, spontaneous union or colescene of separate articles. So far as the definition means hard solid and compact substance the definition stands good. But limiting the said word 'concrete' to substance made from sand and other natural minerals puts a limitation to the meaning of the word 'concrete' which is not compatible with the use of the term in the said exemption clause. The intention of the Central Government clearly is indicated by the illustration given by it within the brackets in the said exemption clause. 'Including' here obviously means illustrations of the items. The inclusion of the words door and windows" clearly indicate that the Central Government wanted to exempt concrete component of a building which were not made from sand and other natural minerals. This is further evidenced by the fact that pipes, which may be G. I. pipes, C. I. pipes or cement pipes are excluded from the exemption clause. When the Central Government was using the word 'pipes' it was award that pipes could be of different materials. If it was trying only to exclude cement concrete pipes it would have said so. But the use of the word 'pipes' without any such qualification indicates clearly that the Central Government was using the word 'concrete' as opposed to 'loose materials'. Lastly the use of the cement blocks also clearly indicates that the Central Government understood that such blocks might be made of other materials and that the word 'concrete' did not mean 'cement concrete'. It is true that in the same Notification by item 34 bricks have also been separately exempted from the levy of sales tax. It may be argued that brick is also a building component and it is also concrete, then why it should have been separately excluded? I find that brick was an item which was already exempted in the original Notification of 27‑6‑

51. The disputed item 40 was inserted by a separate notification being Notification No. 5 dated 18th December 1963. Thus there has been overlapping but that does not affect the interpretation of item

40. By another notification, namely, Notification No. 9 dated 27th June 1951, a number of goods locally manufactured have also been exempted amongst which item 37 is "timber and bamboo including products of saw mills‑timber itself may also be 'concrete building component'. So it may, when processed as a building component, be exempted under item 40 of the Notification of 27th June 1951 or it may claim exemption under the Notification in which it finds place. Again there may be overlapping but again I say that it does not affect the interpre tation of the exemption clause under which the petitioner is seeking relief. Thus it is clear that to accept the respondent's claim that the word 'concrete' means cement concrete would be to restrict the meaning of the exemption clause by reading a separate word qualifying the meaning in the clause which would be against the cannons of interpretation of the statutes as indicated by me earlier. I, therefore, hold that the exemption clause concrete building components' means 'concrete components' of a building as opposed to loose materials. It is an admitted fact that glass sheets are building components and the petitioner has specifically claimed that the respondent manufactures its products as building components to which there is no specific denial. Therefore, the glass sheets manufac tured by the petitioner come within the purview of the exemption clause viz., item 40 in the Notification No. 7 dated 27th of June 1951, 'as amended by Notification No. 3 dated 8th December 1955. I, therefore, declare that the impugned letter No. T. S. 559/ 4063 dated 22/23‑6‑65 issued by the respondent directing him to pay the arrears of tax is without lawful authority and of no legal effect. I also declare that the petitioner's products, namely, glass sheets, come within the exemption granted by the Central Government by the said Notification No. 7 dated 27‑6‑51 as amended by Notification No. 5 dated 28‑12‑53 under section 7 (1) of the Sales Tax Act. I would, therefore, make the rule absolute. Considering the facts and circumstances of the case‑ I would make no order as to costs. In accordance with the majority decision of the Bench the rule is discharged with costs assessed at five gold Mohurs. S. Q. Rule discharged.