1989 PLP 1151 (CLC)

Yours obedient servant, Sd/‑ (KHADIM HUSSAIN) ASSISTANT DRUGS CONTROLLER" A reading of the above letter will show that Assistant Drug Controller without disclosing any reason or basis for holding that 'Aletris Cordial' is neither a 'Biochemic' nor a 'Homoeopathio' medicine, recommended to respondent No.2 that its import may not he allowed. The third document is the letter dated ?n‑3‑1982 addressed by the Assistant Drug Controller to respondent No. 3 inviting his attention to the earlier letter dated 18‑1‑1982 on the subject. The fourth document relied by respondent is another letter of Assistant Drug Controller dated 29‑11‑1982 addressed to respondent No.2 which reads as follows:‑ "No.F.3‑9/76‑I&E Government of Pakistan Ministry of Health and Social Welfare (HEALTH DIVISION) Islamabad the 29th November, 1982 The Collector of Customs, (Mr. M. Anwar Ali, Appraisement) Customs House, Karachi. Sub IMPORT OF ALETRIS CORDIAL AS BIOCHEMIC/HOMOEOPATHIC MEDICINE. Sir, I am directed to refer to your letter No.SI/Misc/1210/82‑1 dated 19th May, 1982 on the subject cited above and to say that although the ingredients of the said item are included in the Homoeopathic Pharmacopoeia yet the preparation itself is not a homoeopathic or biochemic medicine. It is also not covered under the definition of drug. Yours Obedient Servant, Sd/‑ (KHADIM HUSSAIN), ASSISTANT DRUGS CONTROLLER." The above letter was also written by the Assistant Drugs Controller to respondent No.2 with reference to respondent No.2's letter dated 19‑5‑1982. It is stated in the above letter that although the ingredients of 'Aletris Cordial' are included in the Homeopathic Pharmacopoeia yet the preparation itself is not a homoeopathic or biochemic medicine. Once again no reason or basis was disclosed in the above letter for holding that 'Aletris Cordial' was not a homoeopathic medicine although admittedly the medicine contained ingredients which are included in the Homoeopathic Pharmacopoeia. The last documents relied on by the respondents in support of their contentions is the letter dated 26‑3‑1983 addressed by the Second Secretary of Central Board of Revenue to respondent No.2 with reference to latter's letter dated 1‑2‑1983 on the subject of import of 'Aletris Cordial' by the National Indent Corporation. This letter is merely reproduction of the contents of the letter of Health Division dated 29‑11‑1982 and in the light of the opinion of Health Division respondent No.2 was advised that 'Aletris Cordial' was not a biochemic or homoeopathic medicine and as such it does not fall under the definition of 'Drug'. A careful reading of the documents relied by respondents will show that although it was admitted I in these documents that 'Aletris Cordial' contained ingredients which are mentioned in Homoeopathic Pharmacopoeia but it was opined that it is neither a biochemic nor a homoeopathic medicine. No reasons are however, disclosed for not treating the medicine in the category of Homoeopathic medicines. The learned counsel for the respondents was also unable to place before us any reasoning which could justify the above conclusion of respondents. As against the above material produced by respondents the petitioner has placed on record before us a certificate issued by the manufacturer showing the method of preparation of drug 'Aletris Cordial' which reads as follows:‑ "Letap Pharmaceuticals Ltd. Celtic House, 17‑19 Grove Vale. Dulwich, London SE22 8EQ, England Your Ref. Our Ref: MRZS/AC‑88 dated 12th February, 1988. METHOD OF MANUFACTURE ALETRIS CORDIAL Aletris cordial is letaps trade name of a mixture of mother Tinctures (0) with drug potency 3 x mixed in equal proportions and diluted with dispensing alcohol. The formulation is based on the prescribed rules contained in the British Homoeopathic Pharmacopoeia Natural Order: =Haemodoraceae. The fresh root is used. The moist magma containing solid is weighed, and pounded to pulp. 5 times its weight of Alcohol is poured over it. The mixture is left for 15 days to be shaken twice a day. Afterwards it is filtered. The MotherTincture. thus obtained has a drug potency of 1/10 = 1 x. One part of the 1 x dilution (o) and 9 parts of dilute alcohol gives 10 parts of 2 x dilution. One part of the 2 x dilution and 9 parts of dispensing alcohol gives 10 parts of 3 x dilution. Natural Order: Liliaceae The same process is applied as that of Aletris Farinosa. SCROPHULARIA NODOSA: In this the whole fresh plant is used. The process for producing Mother Tincture is the same as for Aletris Farinosa except that the dilution of alcohol differs at the time of preparing the 2x dilution. The 3 x dilution of the three Mother Tinctures are taken in equal parts and 200 ml. are filled in an amber glass bottle labelled as ALETRIS CORDIAL. The percentage of Alcohol in this mixture is determined at 28 $ by volume. MEDICATIONS in all the three cases of Active Constituents are prescribed to be 3 x or higher. PRESENTATION= 200 ml. bot. INDICATIONS AND DOSAGE= See label on bot. Sd/ B. V. EDMONDSON CONTROL & PRODUCTION LETAP PHARMACEUTICALS LTD:" A reading of the above. certificate by the manufacturer will show that the drug 'Aletris Cordial' is obtained by mixing the Mother Tinctures of ALETRIS FARINOSA, HELONIAS DIOICA and SCROPHULARIA NODOSA in equal proportions. It is also clear from the above document that while preparing the mother tinctures of each constituent of the drug (Aletris Cordial) alcohol is used as a B base material with the result the percentage of alcohol in the final mixture (Aletris Cordial) is determined at 28$ by volume. However, according to Certificate the active ingredients of drug (Aletris Cordial) are only ALETRIS FARINOSA, HELONIAS DIOICA and SCROPHULARIA here, concerned with the correct classification of the item imported by the petitioner in accordance with the heading of Pakistan Custom Tariff. The question involved before us in the case is, therefore, one of classification of an item under appropriate heading of PCT. Such disputes can appropriately be decided by this Court in exercise of its jurisdiction under Article 199 of the Constitution and if any reference is needed, the case of Asim Food Industries Ltd. v. Pakistan 1985 SCMR 1753 may be referred. In the above‑cited case the petitioner imported 'liquid glucose' which on earlier occasions was treated by the Custom Department as falling under heading No.17.02‑A of PCT. However, when the disputed consignment arrived ,it was classified under heading No.17.02‑B and charged to Custom Duty accordingly. The decision of Customs Authority was challenged first, before the High Court and finally before the Supreme Court. The classification of liquid glucose under Heading No. 17.02‑B of PCT was justified both before the High Court as well as Supreme Court by the Department on the basis of expert analysis of a chemical substance. The Supreme Court after considering the divergent reports of two chemical experts finally held that liquid glucose imported by the petitioner in that case was classifiable under Heading No.17.02‑A. It will thus be seen, that whenever, dispute regarding correct classification of an item under a particular heading of Pakistan Custom Tariff arises before a Court under .Article 199 of the Constitution, and enough material is available on record to resolve such dispute, the Court has invariably decided such controversy, even though, in such process, it has to[ consider some of the factual aspects of the case. In our humble view the Court while deciding a controversy relating to classification of an E item under Customs Tariff is not deciding any disputed issue o~ facts but is interpreting the entry in the Custom Tariff with a view to fix its correct classification under appropriate heading of the Pakistan Custom Tariff, which is the legitimate function of this Court under Article 199 of the Constitution. In the above perspective, w~ are of the view that the case‑law cited by the learned counsel for the respondents is not relevant to the issue before us. We accordingly accept the above petition and declare the orders passed by respondents Nos. 1 to 3 without lawful authority and of no legal effect. We further declare that 'Aletris Cordial' imported by the petitioner fall under Item No.34 of the relevant Import Policy and PCT heading No.30.03‑D and direct the respondent to release the consignment accordingly. There will, however, be no order as to ‑costs. A . A . / H‑128/ K Petition allowed