P L D 1976 Karachi 253 (PLP)

ABDUL HAFEEZ MEMON, J.

These four petitions, involving common questions of law and facts, are directed against the orders passed by the Collector of Customs confiscating the goods of the petitioners on the same ground. Accordingly, we propose to dispose of these petitions by this common judgment. Petitioners are registered importers. They were granted import licenses of the value of Rs. 3,00,000 each, in the case of first three petitioners and of Rs. 3,31,550 in the case of fourth petitioner, by the Controller of Imports and Exports for importing goods under serial No. 128(h) of the Import Policy for the shipping period January 1974 to July 1975. On the basis of the licences granted to them, the petitioners imported black and zinc coated "steel tubes" from Japan. On arrival of the goods at Karachi sometime in January 1975, Principal Appraiser (Shed) examined the goods in presence of representative of Appraiser Intelligence Branch and gave a report dated 21-12-75, endorsed on the bill of entry, that the imported goods were tubes other than pipes. On 22-2-1975, Assistant Collector of Customs (Shed), however, called for elaboration of the report from the Principal Appraiser who in reply confirmed that as per departmental practice distinction between pipes and tubes was made by sockets and threads. Unthreaded and un-socketed were treated as tubes while threaded and socketed were treated as pipes by the department. Assistant Collector of Customs (Shed) being satisfied, endorsed the report by signing it on 24-2-1975 for further processing of the bill of entry. On 1-3-1975, however, the same Assistant Collector of Customs (Shed) contrary to his earlier endorsement, put the following note on the bill of entry :

"tubes and pipes being the same thing, the import of black tube is prohibited, The consignment is not covered by the produced licence. (Sd.) 13-3-1975." [Assistant Collector of Customs (Shed)]. As a result, Collector of Customs issued notices to all the petitioners to show cause against the action being taken against them under section 156(9) of the Customs Act, 1969 read with section 3(3) of the Import and Export (Control) Act, 1950. The petitioners duly submitted their replies and contended that tubes were different from pipes and even the Custom Department had been treating the two as different inasmuch as they had in fact released number of consignments of similar goods imported by several other private importers under same serial No. 128(h) against similar licences issued under the import policy for the same shipping period and, therefore, no action was called for against the petitioners. The Collector of Customs, however, took the view that term pipe was synonymous with term tube and since import of G. I. black pipes by private section was prohibited, the import of G. I./black tubes by private importers was similarly prohibited and as such, the goods in question bad been imported in contravention of the I. T. C. C. Regulation and accordingly, confiscated the consignments outright under section 1.56(9) of the Customs Act, 1969 read with section 3(3) of the Import and Export (Control) Act of 1950 by his order dated 10-6-1975. Being aggrieved, the petitioners, except the petitioner in Petition No. 1109/75, went in appeal before the Central Board of Revenue and also applied for oral hearing through their counsel which appeal was ultimately heard at Lahore, on 23-9-1975. The learned counsel for the petitioners argued the appeal and also brought to the notice of the appellate authority an unreported Judgment dated 17-9-1975 passed by a Division Bench of this Court in Constitutional Petition No. 755 of 1975, filed on the identical facts and involving identical points. The appellate authority heard the arguments and reserved the judgment. The petitioners, thereafter, on 24-9-1975, sent a telegram to the appellate authority informing him of the main points decided in the aforesaid Division Bench judgment and also sent him a certified copy of the judgment on the same date which, according to the petitioner, was received by the appellate authority on or before 26-9-1975. On 30-9-1975, the appellate authority announced his orders without taking any notice of the Division Bench judgment and dismissed the appeals with this modification that in each appeal he imposed fine of Rs. 2,98,500 in lieu of outright confiscation. Hence these petitions. The first contention raised by Mr. Sharaf Faridi, learned counsel for the petitioners in the first three petitions, was that since Import Policy was issued under a Statute, namely, Imports Control Order, 1950, it had force of law and as such general principles of interpretation of statutes were applicable to the Import Policy as well and each word used therein had significance and could not be treated as redundant or surplusage. Accordingly, when the serial No. 128(h) of the Free List mentioned pipes and tubes separately, it clearly showed that tubes were regarded different from pipes as, otherwise, use of term tube would be redundant which, however, cannot be permitted. Learned counsel M-f-contended that serial No. 128(h) of the Import Policy after providing for import of 'iron and steel pipes and tubes and fittings thereof' goes on to exclude, in the next line, import of 'G. I. pipes and black pipes' only, which according to the established rules of interpretation of statutes, would mean that tubes were different from pipes and import of steel tubes fell outside the exclusion and was, therefore, permissible. The learned counsel went on to further contend that the very fact that in the exclusive list of items, importable by Trading Corporation of Pakistan, only G. I. and black pipes were mentioned which clearly showed that import of tubes on the free list under the serial No. 128(h) was not prohibited. In support of his contention the learned counsel heavily relied upon the judgment of the Division Bench of this Court given in Const. Petition No. 755 of 1975 wherein the learned Judges while construing the very same serial No. 128(h) of the Free List held that pipes were different from tubes and as such the import of tubes was not prohibited. Mr. S. A. Nusrat, learned counsel for petitioners in Petition No. 1109/75, adopting the arguments of Mr. Sharaf Faridi further added that as per long standing departmental practice, customs authorities had been treating pipes as different from tubes in that threaded and socketed was treated by them as pipes and un-threaded and un-socketed was treated as tubes and in support referred to the very note made by the Principal Appraiser on the bill of entry stating; "as per practice the distinction is made by sockets and threads and threaded and un-socketed are treated as tubes . . . . ." and such being the settled departmental practice of the customs, on the basis of which it had released similar goods of about 75,00,000 imported by various other private importers against the similar licences for the same shipping period, the same was binding on the department and could not be deviated from in the case of the petitioners. In support, the learned counsel relied upon Nazir Ahmad v. Pakistan (P L D 1970 S C 453) and a passage from Crawford on Statutory Instruments (1940 Edn.), page 399. para.

221. The learned counsel next contended that the words used in the Policy are to be interpreted as understood in common language and critical refinements and subtle distinctions are to be avoided so that when pipes and tubes were separately mentioned in item 128 (h) of the free list, necessary implication was that tubes were different from pipes and could not be synonymous. The learned counsel lastly contended that the very fact that in the Import Policy of 1974 only pipes were excluded but in the Import Policy of 1975 pipes and tubes were both excluded, it showed that even the Controller of Imports and Exports had treated pipes differently from tubes. He also argued that it was well established that if two constructions of a provision are possible, one in favour of a citizen is to be preferred and the other entailing penal consequences to a citizen 9s to be avoided. As to the question of not filing any appeal against the order of Collector of Customs, the learned counsel argued that as the appellate authority, namely, the Central Board of Revenue, had already dismissed the appeals filed by other Importers of the identical goods, filing of appeal before him would only have been an exercise in futility and that, in any case, the order of the Collector of Customs being ab initio void, the filing of appeal was not necessary and did not bar the petitioner from approaching this Court in its constitutional jurisdiction to declare the action of the Collector of Customs as without lawful authority. Mr. Shah Jamil Alam, learned Deputy Attorney-General, appearing for the respondents, in reply contended that the term 'pipe' was synonymous with 'tube' and since import of G. I. and black pipes was excluded from the free list at Serial No. 128(h), the import of G. I. and black tubes by the petitioners was also excluded and consequently, the goods having been imported in violation of the I. T. C. Regulations were rightly confiscated. In support of his argument he referred to the Marks' Standard Hand Book for Mechanical Engineers (7th Edition) and relied upon the note appended to the following definition of the term 'tube' given in the British Standard Specification 1387 1967 for Steel Tubes and Tabulars at page 7 :

(1) Tube. A straight tube of uniform bore. Note.

The term 'tube' is synonymous - with term "pipe.". As to the contention regarding the binding nature of the established departmental practice of the Customs Department according to which it had always treated pipes to be different from tubes, and had released number of consignments of identical goods imported by several other importers against similar licences for the same shipping period, the learned Deputy Attorney- General stated that in view of the Supreme Court case cited by Mr. S. A. Nusrat, he was unable to controvert the said contention and very uprightly stated that the said practice was indeed binding on the Customs Department and could not be legitimately departed from by them in the case of the petitioners, particularly when they had released similar goods of other private importers near about the same point of time. The question for consideration in these petitions accordingly is, whether the action of the customs authorities in confiscating the goods imported by the petitioners, is with lawful authority. Customs authorities have confiscated the goods on the ground that tube and a pipe is one and the same thing and since import of G. I. and black pipes by private importers was prohibited under serial No. 128 (h) of the free list, the import of tubes was similarly prohibited. The learned counsel for the petitioners, on the other hand, have contended that tubes were different from pipes and this difference has been recognised and maintained not only by the Custom Department itself while releasing the similar goods imported by several other importers against the similar licences granted for the same shipping period but also by the makers of the Import Policy, in that, it had separately mentioned pipes and tubes in serial No. 128(h) and had specifically excluded import of G. I. and black pipes only thereby clearly suggesting that the import of tubes was not excluded. Since the rival contentions centre round the serial No. 128(h) of the Free List of the Import Policy for the shipping period 1st January 1974 to June 1975, it will be only appropriate to reproduce it in extenso:- "(h) Iron and steel pipes and tubes and fittings thereof, excluding G. I. pipes and black pipes." It will be noticed that in the above serial number pipes and tubes have been separately mentioned. Then, after providing for import of iron and steel pipes and tubes in the first line, the item, in the very next line, proceeds to ex clude specifically the import of G. I. and black pipes only. This would clearly show that the makers of the Import Policy were themselves conscious of the difference between tubes and pipes and intended to maintain this differ ence as, otherwise, they would not have, in the first place, mentioned pipes and tubes separately in the item of the list and, in the second, would not have excluded the import of G. I./black pipes only, in the next line. It is a well established rule of construction that express mention of a thing excludes others. If it was intended to exclude import of steel tubes also, the makers of the Import Policy could have easily added the word tubes after the word 'pipes' for excluding the import. But they did not do so, thus leading to the only conclusion that they regarded tubes as different from pipes and they had excluded import of pipes only and not of the tubes. This is further confirmed by the fact that in the import policy of the next shipping period of 1975, import of both, pipes as well as tubes, has been expressly excluded from the similar serial number of the free list. The learned counsel for the petitioners, therefore, very rightly argued that no word used in a policy issued under a statute is without significance or can be treated as redundant or surplusage. Indeed, Import Policy is a document of great sanctity as the trade of the whole country defends on it. In this view of the matter, the reliance of the learned Deputy Attorney-General on the footnote appended to the definition of the word 'tube' in British Standard Specification B. S. 1387: 1967 is misconceived. Indeed, learned Deputy Attorney-General conceded that tubes of Japanese specification were not prohibited. He, however, contended that, since according to the British Specification, term 'tube' is defined to be synonymous with 'pipe', and since the imported goods were of British Specifications, their import was prohibited. With respect to this argument of the learned Deputy Attorney-General, we fail to see the logic of the distinction, as we were not told how the distinction mattered. In any case, serial No. 128 (h) of the free list in question does not speak of either Japanese or British Specifications, nor does it distinguish between the two specifica tions. The words, on the other band, are presumed to have been used in their popular sense and are to be construed as they are understood in their common language, in the absence of any definition clause. For support, reference may be made to the Supreme Court case reported as Mian Muhammad v. Ghulam Mustafa (PLD1973SC394) wherein their Lordships observed as under :

"In the absence of an interpretation clause embodied in the statute itself, the general rule would appear to be, as observed by Lord Esher M. R., in Clerical, etc., Assurance Co. v. Carier that the words are presumed to have been used in their popular sense. The same rule was stated by Lord Tenterden in Attorney-General v. Winstanley, namely, that 'the words of an Act of Parliament which are not applied to any particular science or art 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'." Viewed in the light of the above observations, it cannot be disputed that the word tube as understood in the common language is different from pipe and it has not been shown to us that it is understood differently in the normal trade circles. This very question came up for consideration in the case of Messrs Abdul Majeed Khan v. Collector of Customs and another in Const. Petition No. 755 of 1975, decided by a Division Bench of this Court. In the above decided case, the petitioner had imported identical black and zinc coated steel tubes against the same serial No. 128(h) of the Import Policy for the same shipping period. The goods were confiscated by the customs authority on the same ground that the term 'tube' was synonymous with pipe and since import of pipe was specifically prohibited by private importers the import of tubes was also prohibited. In so holding, reliance was placed by the Custom Department on the same footnote appended to the definition of the term `pipe B. S 1387 : 1967 referred to earlier in the judgment. The Division Bench of this Court after examining the concerned official of the Custom Department and referring to the passage from the book "Introduction to Mechanical Design by Jafferson" repelled the very contention, advanced by the learned Deputy Attorney-General before us, and maintained that the pipes were different from tubes. The relevant observations may, with advantage, be reproduced as under :

"The controversy, therefore, centres around the question as to whether the goods imported were tubes or pipes. The description in the above entry maintains distinction between a pipe and a tube, for what is excluded from import are the G. I. Pipes and black pipes and not the tubes. Again, the same entry is recorded in the Import Trade Control Order bearing No. S. R. O. 722(1)/75 dated 30th June 1975, which exclude G. I. Pipes and tubes and black pipes and tubes, and thus maintains the distinction. If tubes were synonymous then there was no occasion to mention tubes separately." We, respectfully agree with the view taken above. There is also force in the contention raised by the learned counsel for the petitioners that since the Customs Department as a practice had been consis tently construing pipe as different from tube for a long time and on that basis had releaied several consignments of similar goods, the said departmental practice was binding on it and could not be deviated or departed from in the case of the petitioners. Indeed, it was not disputed that number of consignments of similar goods of the same specifications imported by other private importers under the same serial No. 128(h) for the same shipping period, were released by the Customs Department on the basis of this departmental practice of construing tubes as different from pipes. In this view of the matter, there existed no justification for them to deviate and depart from it when it came to releasing the goods of the present petitioners. In Nazir Ahmad v. Pakistan (PLD1970SC453) their Lordships observed that where departmental practice has followed a course in the implementation of the rule whether right or wrong, it will be extremely unfair to make a departure from it after a lapse of many years and to disturb rights that have been settled by consistent course by that practice. Indeed, the learned Deputy Attorney-General himself admitted that such departmental practice. in the circumstances of this case, was binding on the Customs Department in the case of the petitioner's goods, as it had earlier released several consignments of the similar goods of the same specification, imported by other private importers under the same serial No. 128(h) of the Import Policy for the same shipping period. For the aforesaid reasons and following the decision given by the Division Bench of this Court in Const. Petition No. 755 of 1975, we hold that the impugned orders passed by the authorities below confiscating the goods of the petitioners are without lawful authority and of no legal effect and, accordingly, allow these petitions but with no orders as to costs. Th,3 result was announced by us at the conclusion of the arguments and above are the reasons for it. KHUDA BAKHSH MARRI, J.-I agree, S. A. H. Petition allowed.