1983 PLP 3211 (CLC)

You are, therefore, asked to follow the provision of the above‑mentioned law forthwith without any loss of time, failing which necessary action will be taken against you, besides under other provision of the law, under section 9 of the Central Excises and Salt Act, 1944. Your compliance report of the above instructions should reach this office within seven days from date hereof." The petitioner has contended that in view of the judgment and decree passed in Suit No. 233/76 which is valid and operative, the respondent cannot impose any duty and declare the petitioner's goods as excisable goods. Comments were called from the respondent who has stated that the judgment and decree passed by the learned Civil Judge was based on inter pretation of item No. 23 of the First Schedule to the Central Excises and Salt Act, 1944, but due to subsequent legislative amendment, the said judgment is not applicable now. Mr. Sami Ahmed, the learned counsel for the petitioner has contended that the judgment passed by the learned Civil Judge is operative and the respondents cannot be allowed to violate it: As stated above, the issue between the parties in the suit was whether the plaintiff's product was covered with the definition of soap as given in item No. 23 of the Central Excises and Salt Act"? The learned Civil Judge has given a finding in the negative: In this regard it will be pertinent to note the definition as provided by Item 23 which is reproduced as follows :‑‑ "Item 23. 'Soap'.‑Soap means any variety of product known commercial ly as soap and includes other detergents which are used for the purpose for which the soap is generally used." By Finance Ordinance, 1970, the entire First Schedule to the Central Excises and Salt Act, 1944 was substituted by a new Schedule. Item 29 drasti cally changed ‑the definition of soap as follows "Item 29. 'Soap and detergent'.‑Soap, all sorts. .but excluding liquid soap, paste soap, shaving soap and depilatory soap. (1) Soap flakes, soap powder and detergents of all sorts. (2) Soap other than soap falling under item 1." Again by Finance Ordinance, 1979 the First Schedule was substituted by a new schedule and detergent was placed under a separate item as 04.05‑B which is reproduced as follows "Item No. 04.05‑B. 'Detergent':‑ Detergent means organic and synthetic surface active agents, surface active preparations, emulsifiers and foaming or washing preparations, in any form excluding products falling under item No. 04.05'. and sub item 'A' above whether or not containing soap and includes soap flakes, soap powders and the soaps containing synthetic detergent." The legislative history will show how the definition of soap and detergent has changed from time to time. It will thus be noted that the two definitions provided in 1966 and 1970 as quoted above are different and distinguishable. The first definition seems to be restricted to products commercially known as soap including detergent used for the purpose for which soap is generally used. However, in the amended definition of 1970 there is no such qualification in respect of detergent. It in fact includes all sorts of soap except liquid soap, paste soap, shaving soap and depilatory soap as well as detergent of all sorts. Again in 1979 soap and detergent were separately classified giving a definition which is different from items 23 and

29. Mr. Sami Ahmed, the learned counsel has contended that the learned Civil Judge had taken note of item No. 29 (1) of Excises and Salt Act, 1944 and on consideration has given a definite finding that the petitioners' products do not fall within the category of soap. He has referred, to the following paragraphs from the said judgments :‑‑ "I have heard the learned counsel for the plaintiff and perused the report of Customs Testing Laboratory Exhs. 6 and 12 and find that White has not been classified as any category of soap whereas the Chemical Examiner of Custom Laboratory has given his report that it is a metal cleaning preparation, most appropriately classifiable under item 29(i) of the First Schedule to the Central Excises and Salt Act, 1944. The report of the Custom Testing Laboratory is clear that these are compounds of Soda Ash, some clay like substances of smaller amounts of surface active substances (Detergents). It is a metal cleaning preparation. From both the above reports it is clear that White 'has not come within the category of soap'. The finding is on the basis of issue No. 5 which has been reproduced above. The question for consideration before the learned Civil Judge was "Whether the product of the petitioner was covered by the definition of soap as given in item No.

23. There was no issue relating to item No. 29 and any observation relating to that particular item was merely an obiter. It may be noted that even after referring to item No. 29(1) the finding is that they petitioner's products do not come within the category of "Soap". By amendment in Schedule whereby the definition of soap and detergent has bee changed the judgment and decree passed in the suit on the basis of item 23 will not give the present case. The impugned action has been taken on the basis of definition of detergent as provided by item No. 04.05‑B which according to the respon dent covers the petitioner's goods. This definition is completely different from items Nos. 23 and

29. The petitioner, therefore, on the basis of the Judgment and decree passed in hi4 favour, cannot challenge the impugned action. He will, however, be at liberty to present his case before the respondent to show that his products are not covered by item 04.05‑B. The petition is dismissed in limine, M. Y. H. Petition dismissed.