1997 PLP 1631 (CLC)

Ali Ahmad Awan for Respondents Date of hearing: 30th April, 1997 This order shall dispose of Writ Petition No.4258 of 1997 and Writ Petition No.4254 of 1997 as common question of facts and law are involved in both the petitions.

2. The petitioners imported plastic beads from China in the month of September, 1996. When these goods were brought into the area of Municipal Corporation, Faisalabad, the petitioners were made to pay the octroi charges on these plastic beads at the rate of Rs.1.93 per k.g. under item No.99 of the Schedule of Octroi Charges. Subsequently, in the case of Rana Muhammad Khalid Farooq (W.P. No.458 of 1997) an additional amount of Rs.90,000 was charged from him treating these plastic beads as 'Moti' under item No.99 of the Schedule. The petitioners submitted representations to the Taxation Officer initially and then appeals to the Administrator of the respondent Corporation but were rejected.

3. The petitioners have now challenged this action in these Constitution petitions which were admitted to regular hearing on 18‑3‑1997. Comments have been filed.

4. Learned counsel for the petitioners submits that the plastic beads are not separately charged in. the Schedule of Octroi Charges, but fall under Item No. 108 of the Schedule which is as follows:‑ According to the learned counsel for the petitioner, since these plastic beads fall under Item No.108 of the Schedule, the same are chargeable for the purpose of octroi at the rate of Rs.39 per 100 k.gs.

5. Mr. Ali Ahmad Awan, Advocate, learned counsel for respondent No.3 submitted that this Court has no jurisdiction to determine whether the goods in question were plastic beads or 'Moti'. Mehr Ghulam Rasool, Advocate, learned counsel for respondents Nos. l and 2 submitted that the goods in.question were 'Moti' and fell under Item No.99, therefore, chargeable at the rate of Rs.193 per 100 k.gs. He also justified the imposition of the fine of Rs.90,000 which according to him was ten times of the actual nctroi charges under the: Octroi Rules, 1964.

6. Learned counsel for the petitioner referred to the order dated 9‑12‑1996 passed by the Taxation Officer, Municipal Corporation, Faisalabad. According to this order, the goods in ,question are made of plastic. He has specifically stated that, "Apparently it is made of plastic converted into pearl, which name stands inserted in Item No.99 of the octroi schedule".

7. The determination of the nature of these beads had been made by the Taxation Officer who found the same to be made of plastic. This order was upheld in appeals by the Administrator, respondent No.l. In this connection the following remarks of the Taxation Officer in the order (Annexure‑H) are relevant:‑ "The sample of the goods in question has been examined. Apparently it is made of plastic, converted into pearl, which name stands inserted in Item No.99 of the octroi schedule."

8. The beads in question are admittedly made of‑plastic. The appearance of these plastic beads like pearls would not change the nature of the plastic beads and thus would not be considered to be 'Moti' falling under Item No.99 of Octroi Schedule which is as follows:‑ Item No.99 covers the articles made of gold or precious stones or the pearls., 'Moti' under Item No.99 follows the articles made of gold and precious stones, therefore, on the basis of the 'ejusdem generis' rule, the last word, 'Moti' which A is the Urdu equivalent of 'pearl', shall have to be construed with regard to the preceding words, as observed in 'Craies on Statute Law' (6th Edition P.179):‑ "And in Podar Trading Co., Ltd., Bombay v. Francois Tagher, Barcelona, it was, held that in a qontract governed by the Rules of the Liverpool Cotton Association, Rule 52, where a contract may be rendered impossible of performance owing to 'unforeseen obstruction to traffic, strike, lock‑out, riot, war, quarantine or force majeure', these last words must be construed with regard to the words which precede or succeed them."

9. The fact that the beads in question are made of plastic, although look like pearls, would not bring them under Item No.99 of the Octroi Schedule 8 which covers only articles made of gold, precious stones and 'Moti' i.e. pearls. The ordinary meaning of 'pearl' as given in The Concise Oxford Dictionary is as follows:‑ "white or bluish‑grey hard mass formed within the shell of a pearl‑IC oyster or other bivalve mollusc, highly prized as a gem for it lustre".

10. The plastic beads are not separately mentioned in the Octroi Schedule, therefore, would fall under Item No. 108 of this Schedule which covers thei plastic and articles made of plastic and would thus be charged for the purpose of p octroi at the rate of Rs.39 per 100 K.Gs. In this view of the matter this petition is accepted and the action of the respondents charging these plastic beads under Item No.99 at the rate of Rs.193 per 100 K.Gs. or Rs.1.93 per K.G. was therefore, not justified and is declared to be without lawful authority. The imposition of the fine of Rs.90,000 on the same basis was also not warranted. the cost shall follow the result. M.A.K,/T‑19/L Petition accepted