[The judgment of the Court was delivered by M.S.H. Qureshi, J.].- For the assessm ent years 1961-62 and 1962-63 the respondent, Messrs. Ijaz Oil and Conduit Pipe Mills, Gujranwala, claimed exemption from payment of tax on the sales of pipes by relying upon Sales Tax Notification No. 3-ST dated 15-3-1954, read with Customs Notification No. 14-C of the same date. The Sales Tax Officer rejected the claim on the finding that conduit pipes were not covered by the said Notifications. The Appellate Assistant Commissioner, however, relying on judgment in S. T. 14 of 1960-61 dated 18-6-1962 passed by the Appellate Tribunal Karachi, held that conduit pipes were covered by item (v) read with item (i) of the Schedule to the Notification and as such were exempt. The Tribunal relying on the same decision of the Karachi Bench confirmed the finding of the Appellate Assistant Commissioner. The Department then moved the Tribunal for making a reference to this Court under Section 17(1) of the Sales Tax Act, 1951, whereupon the following question of law was referred for the opinion of this Court:- "Whether on the facts and in the circumstances of the case the conduit pipes manufactured by the assessee are exempt from the levy of sales tax by virtue of Notification No. 14-C dated the 15th March 1954, read with Sales Tax Notification No. 3-S.T. Of the same date?"
2. The items of goods specified for exemption in the aforesaid Notification No. 3-S.T. Dated 15-3- 1954 and the Customs Notification No. 14-C of the same date are the following: "(i) Machinery of all sorts, not otherwise specified, operated by power of any description (including tractors other than agricultural), such as is used in any industrial process, including the generation, transmission and distribution of power, or used in processes directly connected with the extraction of minerals and timber, construction of buildings, roads, dams, bridges and similar structures and the manufacture of goods.
(ii) Component parts including spare parts of Machinery as defined in item (i) above, which have been given some special shape, size and quality essential for the use as such.
(iii) Apparatus and appliance not otherwise specified, specially adapted for use in conjunction with Machinery as defined in item (i) above.
(iv) Component parts including spare parts of Machinery as defined in item (iii) above, which have been given some special shape, size and quality essential for the use as such.
(v) Mechanical and electrical control and transmission gear adapted for use in conjunction with Machinery as defined in item (i) above, including belting all types, designed for use with machinery, driving chains, switch board, switches and/or fuses assembled in iron-clad cases, copper wires and cables insulated with impregnated paper, electrical earthenware and porcelain, not otherwise specified.
(vi) Component parts including spare parts of goods enumerated in item (v) above."
The decision of the Sales Tax Officer was based upon the view that the conduit pipes did not constitute "any 'mechanical and electrical control and transmission gear adapted for use in conjunction with machinery' and that "these pipes are made out of iron and have no restricted use for electric fittings". Neither the Appellate Assistant Commissioner nor the Tribunal discussed the question but followed simply the decision of the Karachi Bench of the Tribunal in S. T-14 of 1960-61.
In that case the Karachi Tribunal had expressed that :- Conduit is a pipe-shaped thing which is used to cover the wirings and its use appears necessary in conjunction with the main machinery for safer and proper transmission of electric energy. The word conduit is not specifically mentioned in the aforesaid Schedule which, however, is more exhaustive of item, intended to be exempted from sales-tax than the superseded Notification in which this word was used specifically. In our view the article in question appears fully covered by item (v) of the aforesaid Schedule and is, therefore, exempt from the payment of sales tax thereon."
3. The decision thus proceeds from the view that conduit pipes come under item (v) because they are used to cover electrical wiring. A careful reading of item (v), however, does not support the conclusion. For an exemption under item (v), it is necessary that the conduit pipe should be a "mechanical and electrical control and transmission gear adapted for use in conjunction with machinery as defined in item (/)". The definition includes belting all types designed for use with machinery, driving chains, switch boards switches and/or fuses assembled in ironclad cases, copper wires and cables insulated with impregnated paper, electrical earthenware and porcelain, not otherwise specified. Conduit pipe is not one of the items so included. Nevertheless, it can claim exemption on the principle of ejusdem generis. Conduit pipe may be used for encasing electrical wires for safer transmission of energy but thereby it cannot be said to be "mechanical and electrical control and transmission gear adapted for use in conjunction with machinery"; Conduit pipe can claim to be meant for such use only if it had been designed for that purpose. It cannot qualify for exemption if meant for general use and not restricted to the purpose of item (v).
4. Learned counsel for the respondent referred to a brochure entitled "Steel Conduit and Fittings for Electrical Wiring" issued by the British Standards Institution as British Standard 31: 1940, which contains specifications for steel conduits and fittings for electrical wiring. But even if the conduit pipe in question had been manufactured to a given standard (and even this is not the case here), it will not qualify for the exemption unless it is shown that the standard was peculiar to the purpose set out in item (v).
5. It will be relevant to note here that the notification in question, i. e., 3-ST dated 15-3-1954, had superseded the earlier notification No. 8 dated 27-6-1951, as amended by Notification No. 9 dated 30-8-1952. In the said earlier notification, item No. 72(e) which had included conduits, read as under:- "72(e) bare hard-drawn electrolytic copper wires and cables and other electrical wires and cables, insulated or not, and poles, troughs conduits and insulators designed as parts of a transmission system, into the fittings thereof." Conduits qualifying under the above description had, thus, been exempt from sales tax. The omission of conduits in the subsequent relevant notification of 15-3- 1954, therefore, would amount to their deliberate exclusion from the exemption.
6. In Commissioner of Sales Tax v. Messrs Premiery Machinery Works, Karachi [1978 PTD 118] the question: "Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the conduit pipe falls within the meaning of items (v) and (vi) of the Customs Notification No. 14(c) dated 15th March, 1954, and is consequently exempt from tax by virtue of Sales Tax Notification No. 3 dated 15th March, 1954". which bad been referred to the Court and had been answered in the negative and it had been held that the Tribunal had misdirected itself in holding that a conduit pipe is necessary for transmission of electric energy and that the necessary facts that the conduit pipe was a mechanical and electrical control and transmission gear had not been proved. Learned counsel for the respondent contended that this ruling would not be relevant because the question there had been limited to an interpretation of items (v) and (vi) of the notification, whereas the question before this Court is broader in perspective and would cover an interpretation of the entire notification. He particularly referred to item (iii). But in order that conduit pipe comes under item (iii) it has to be established that it was an "apparatus and appliance not otherwise specified,] specially adapted for use in conjunction with machinery as defined in item (i) above". The respondent had led no evidence to show that the: conduit pipes had been "specially adapted" for use in conjunction with a machinery.
Merely because conduit pipes are also used to cover electrical wires used in machinery will not attract the exemption under the! notification in the absence of any proof that they had been "specially! adapted" or designed for use with machinery or in conjunction with! machinery.
7. Learned counsel next urged that as the use to which conduit pipes are put to is a question of fact, this Court is not to go into that question already decided by the Tribunal. The basic question however, is not whether the conduit pipes are used to cover electrical wiring but whether such use meets the requirement of the notification, which is not! a question of fact but of law. The Tribunal had failed to expressly reply the Sales Tax Officer's finding that "these pipes are made out of iron and have no restricted use for electric fittings". The notification does not cover every apparatus or appliance meant for general use including use with machinery or transmission distribution of power. It is attracted only if the pipes are made for the purpose specified therein. In the absence of any evidence in that regard, the Tribunal had erred in holding that the same were entitled to an exemption from sales tax.
8. For these reasons, we answer the question referred to us in the negative. There shall be no order as to costs..