' S. A. NUSRAT, J.-The petitioner-Company is a manufacturer of chemicals and holds licence under section 6 of the Central Excises and Salt Act (hereinafter referred to as the Act), 1944 for the manufacture of excisable goods. The dispute in this Petition relates to the levy of excise duty on the petitioner's preparation, sold in the brand name of "Genopon Tp. Powder". Under Item 29(1) of the Schedule to the Act.
2. According to the facts of the case, which are not generally disputed, the petitioners were served with a show-cause notice by the Assistant Collector, Central Excise and Land Customs to show cause as to why action should not be taken against them for the contravention of Central Excise Rules and Regulations. In detence to the show-cause notice, it was stated by the petitioners that their disputed preparation was never used as a cleansing agent nor it was supplied to any of the manufacturers of soaps or sold as a detergent. It appears that the samples of the petitioner's product had earlier been drawn and tested by the Customs House Laboratory, according to which the said product was found to be a detergent. The Assistant Collector did not agree with the contentions of the petitioners and by his order dated 13-2-1976 held that the preparation "Genopon To Powder" was a detergent classifiable under Item 29(1) of the First Schedule to the Act. The petitioners filed an appeal against the said order, which was dismissed by the Collector (Appeals on 25-7-1978, and the Revision Application of the petitioners against the said order too was dismissed by the Federal Government on 22-8-1979 which last order has been challenged in this petition on the ground that the product of the petitioner is not classifiable as a 'detergent'.
3. It was contended by Mr. M. A. Pesh Imam, learned counsel for the petitioners, that the product Genopon Tp. Powder was not a 'detergent' and therefore no excise duty was payable thereon under Item No, 29(1) of the First Schedule to the Central Excises and Salt Act. He referred to the meaning of the word 'detergents' as given in Van Norstrand's Scientific Encyclopaedia, (1968 4th Edition., p.
507) which is as under:- "Detergents.-Substances or products which are capable of dislodging, removing, and dispersing solid and liquid soils from a surface being cleansed are known as detergents. In the broadest sense all material used in cleansing, that is, water and other solvents, soaps and seapless agents, alkalis and alkaline salts, acids and acid salts, salts, abrasives, and oxidizing and reducing agents may be considered as detergents. More specifically the term detergent is limited to those surface-active agents which have in addition to the property of lowering surface tension the property of deflocculating soil and direct clumps and keeping them in suspensions so that they can be washed away before they can redeposit on the surface being cleaned. This effect is exhibited by compounds having a water-soluble, oil-insoluble portion and a water-insoluble, oil-soluble portion that serves as an emulsifying agent.
' There are many surface-active agents which do not possess detergent properties: hence the terms surface-active agent and detergent -are not synonymous."
' According to him, the test report of the Customs House Laboratory was based on the presumption that every surface-active agent was a detergent, but from the above dictionary meaning it was clear that the terms "surface active agent" and 'detergent' are not synonymous. It was stated that to the knowledge of the Excise Authorities themselves the product in question was supplied by the petitioners to Nowshera DDT and Itahad Pesticides Factories only. It was further contended that in any case the product in question had no primary use as a detergent, and it was mainly used in the manufacture of insecticides and pesticides; at best as a chemical.
4. Mr. Pesh Imam invited our attention to an unreported judgment of this Court dated 23-9-1971 in Constitutional Petition No, 242 of 1969, in the case of Bliss & Company, which was followed in another case of Sultan Ahmed Bali in Writ Petition No, 333 of 1965, decided on 1-2-1974, in support of his contention that the classification of the goods as excisable item depended upon their primary use.
' In the case of Bliss & Company the product, known as 'Prickly Heat Powder', was held to be a medical preparation and not an item of "perfumary, cosmetics and toilet preparation" in view of the ingredients used therein. In Sultan Ahmed Bari's case it was held that the goods of the petitioner in that case, namely, "Essences and Synthetic Essential Offs" were not classifiable as an item of perfumery as the same were not primarily used or even understood as perfumes. The contention raised on behalf of the Department in the said petition was that Essences and Synthetic Essential Oils "were capable of being used as perfumes" or could be "utilised as perfumes". This contention was repelled and it was held that mere capability of the goods to be used as perfumes could not render the same an item of perfumary as such. The finding given in the impugned order of the respondent in the instant case also is that according to the chemical test report, it was indicated that the product "Genopon Tp. Powder" was a powder having good solubility properties and was Alkylaryl sulphonic acid salt in the nature of detergent. From the above finding given in the impugned order it is clear that the product in question was held to be "in the nature of detergent", which stand of the Department, is somewhat similar to the stand taken in Sultan Ahmed Bari's case where too the capability of the product to be used as perfumery was held by the Department to be the criteria for bringing the same within the mischief of the Schedule to the Excise Act, as an excisable item. This Judgment, in our opinion, supports the case of the petitioner which we propose to respectfully follow. We ourselves are also of the view that mere capability of a commodity to be used as an item mentioned in the Schedule to the Central Excises and Salt Act alone cannot be considered as the basis of classification, and it is the primary use of the commodity as understood A generally by the public which normally will be relevant consideration for the purpose of classification.
5. Reference in this connection may be made to a judgment of the Exchequer Court of Canada between his majesty the King v. Planters Nut & Chocolate Company Ltd. (1), in which it was held that the object of the Excise Act was to raise revenue and for this purpose, to classify substances according to general usage and known denominations of trade. It was observed that it was not the Botanist's conception as to what constituted a "fruit" or "vegetable" which must govern the interpretation to be placed on the said words, but rather what would ordinarily in matters of commerce in Canada be included therein. In spite of the expert opinion of an Assistant Professor of Botany that 'pea nuts' and 'cashew nuts' fell within the category of "fruit" and "vegetables", the learned Court preferred to interpret the relevant entry in the Schedule to the Excise Act of Canada as falling within the category of "nuts" as understood in the trade and by the common man.
6. As a result of the above discussion, we are of the opinion that the interpretation placed on the petitioners' product "Genopon Tp. Powder" as a "detergent" classifiable under Item 29(1) of the Central Excise Schedule cannot be sustained. The impugned order is, in the circumstances, declared to have been passed without lawful authority, and the petition is allowed, with no order as to cost.
(1) 1951 Ex. C R 122