1980 PLP 558 (CLC)

fittings thereof excluding G. I. 73-201V, Pipes & tubes and black pipes 83-08-IV " and tubes. The petitioner in each case has admittedly imported carbon steel tubes galvanised, which, according to the respondents was importable. exclusively by the Trading Corporation of Pakistan under Entry No. 382-A in Part `C' of the Import Policy Order, 1977 which reads as under :- 382-A

1. T. C. Headings G. I. Pipes and tubes and black pipes 73-18 111. 2. and tubes. The respondents also relied on an amendment effected in the foresaid two items by the Federal Government under S. R. O. 164 (1) 7S, held 12th February, 1978 which reads as under :- "S. R. O. 164(1)178.-In exercise of the powers conferred by sub section (1) of section 3 (XXXIX of 1950), the Federal Government is pleased to direct that the following further amendment shall be made in the Import Policy Order, 1977, namely :- In the aforesaid order, in Annex. I- (i) in Part A, against Sl. No. 133 (i) in column 1, in column 2, for the letters `G. 1.', the words `Galvanised iron and steel' shall be substi tuted ; (ii) in Part C, against Sl. No. 382 in Column 1, in column 2, in the description against entry (a), for the letters "G. 1.', the words `Galva nised iron and steel' shall be substituted."

2. The petitioners case shortly stated is that under the aforesaid item 133 for which they possessed an import licence, they were entitled to import galvanised steel pipes and what was excluded was galvanised iron pipes which could be imported by the Trading Corporation of Pakistan alone. The interpretation put on the said item No. 133 by the petitioner is supported by its plain meaning. Mr. Shah Jamil Alam, the learned Deputy Attorney-General on behalf of the respondents did not dispute the fact that iron pipes and steel pipes are two different things inasmuch as iron and steel differ in their chemical composition but his limited contention was that galvanised iron and galvanised steel are on g, and the same things and in the trade and commerce iron and steel are distin guishable and treated as one. It was contended that G.

1. Pipes crudely G. I. Pipes of iron and steel. In other words, the argument was that the exclusion of G.

1. Pipes extended also to galvanised steel pipe`.

3. Now, it is obvious to us that if iron and steel are two different metals you cannot equate galvanised iron with galvanised steel and since the' exclusion in the plain language extends to galvanised iron pipes, it cannot be extended to galvanised steel pipes. It may also be noticed that in the relevant Import Policy galvanised iron pipes are exclusively importable by the Trading Corporation of Pakistan tinder the said item 382 (a) which being in the nature of an exception must be strictly construed. It is also significant to note that) the Government felt it necessary to amend the aforesaid item by S, R. O. 164 dated 12-2-1978 which further go to show at least this much that the earlier exclusion was limited to galvanised iron pipes and did not extend to galvanised steel. pipes. The acceptable interpretation in relation to a taxing statute is that the Courts must look to the words of the statute and interpret them in the light of what is clearly expressed and cannot imply any thing which is not expressed, we cannot import provisions in the statute so as to support assumed deficiency as held in the case of Messrs Hirjina & Co. (Pakistan) Ltd. v. Commissioner of Sales Tax Central, Karachi (1971 S C M R 128). It is also a well-established principle that penal provisions of a statute should be strictly construed and) in case of any ambiguity or doubt arising from the construction the benefit; must go to the accused.

4. In these circumstances the burden was heavily on the respondents to show that G.

1. Pipes mean or is understood in the trade as including gal vanised steel pipes notwithstanding its admitted different chemical composition. This burden will not be discharged by bare denial in the counter-affidavit that in the trade and commerce iron and steel are not indistinguishable.

5. Mr. Khalid Anwar and Mr. S. M. Sadiq, the learned counsel for the petitioners invited our attention to the Judgment of the Supreme Court in the case of Collector of customs (Appraisement) Karachi and others v. Messrs Abdul Majeed Khan and others (1) in which case the court was called upon to interpret item No.128 (h) of the import policy order, 1974 which reads as under :- 128(h). Iron and steel pipes and 73-18-II,III-2 tubes and fittings thereof 73-20-IV excluding G. I. Pipes and 83-08-IV Black Pipes. In this case the importer had imported G. I. Tubes and the argument was that the exclusion was limited to G. I. Pipes which were exclusively importable by the trading corporation of Pakistan under the import policy order. The court repelled the Departments contention that the exclusion also extended to tubes in these words:- "It is amply clear from the opening line in the entries in column (2) that the import of iron and steel pipes as well as the tubes was permitted and that the exclusion or prohibition against such imports was confined to the G. I. pipes and Black Pipes only. In the context the inclusion of the `tubes' in the first part and the omission of their mention in the exclusion clause of this entry was significant. From a. reading of this entry as a whole the conclusion seems to be irresistible that the pipes and. the tubes are two separate items meant for import and that the two were not synonymous. The omission of the tubes from the exclusion clause in this entry was no t merely accidental as the learned counsel for the appellants/petitioners would have us believe. His contention advanced in this behalf cannot be accepted-without doing serious violence to language of this entry and its plain meaning. We are further fortified in this conclusion on reference to the entries precisely corresponding to this exclusion clause found serial No. 263 263 (a), Part C-1 of the Free List. Under this corresponding entry G. I. Pipes and Black Pipes' were importable by the Trading 'Corpora tion of Pakistan Ltd., in accordance with para 9 of the Import Policy Order, 1974 as already discussed above. By no stretch of imagination the scope of ;his entry could be extended so as to also include within it the import of the G. 1, and black tubes as well, as a monopoly created in favour of the said Corporation. The interpretation is in harmony with both the items at Serial Nos. 128(x), part A and 362 (a), part C-1, of the Free List."

6. In the present case the aforesaid observations of the Supreme Court have all the more force inasmuch as it was conceded that iron and steel were in chemical composition two different metals from which would flow that galvanised iron pipes and galvanised steel pipes are also two different E things, and therefore; the omission of galvanised steel pipes from the exclusion clause in entry No. 133 cannot be said to be without significance. Eve the subsequent S. R. O. dated 12-2=1978 has the effect of affirming this view.

7. The result, therefore, is that the petitioners' import was covered by item No.. 133 of the Schedule to the Import Policy Order, 1977 and were, therefore, assessable to duty under Item 73-18-B of P. T. O. Schedule and not under item 73-18-A of the P. C. T. Schedule which prescribes higher duty, as ordered by respondent No. 3.

8. These petitions are, therefore, allowed with costs. The petitioners will be entitled to withdraw the bank guarantees under which they were allowed to clear the goods by this Court. k. M. A. Petition allowed.