1. ' SALEEM AKHTAR, J.-The petitioner is proprietor of Pak Industry engaged in manufacturing cleaning powder namely "White" meant exclusively for cleaning utensils, wash-basins and floors. On 12-5- 1966 the respondent had raided the petitioner's premises and seized "White Cleaner" and "Star Light Cleaner" as according to it, they were liable to excise duty which was denied by the petitioner. The petitioner filed a suit for declaration and injunction on 22-5-1966 and sought the following reliefs :-
(i) A declaration by way of decree to the effect that cleaning powders namely "White" and "Starlight" manufactured by the plaintiff do not fall within any category of soaps and no duty of excise can either be prescribed or levied on the said goods, as they are not excisable items, as classified and enumerated in First Schedule of the Central Excises Act, 1944, and that the defendant has no authority whatsoever to levy any duty of excise on the said products of the plaintiff.
(ii) A permanent injunction restraining the defendant and all persons acting under his authority from prescribing and levying duties of excise on the said products of the plaintiff and further from interfering in any way or form in the manufacture and sale of the said products by the plaintiff.
(iii) Any other relief or reliefs which this Hon'ble Courts may deem fit and proper."
2. The suit was resisted by the respondent and on the basis of the pleadings issues were framed. The relevant issue necessary for consideration of the present case was issue No, 5 which is reproduced as follows :- "Whether the products of the plaintiff do not come within the definition of soap as given in item 23 of the Central Excises and Salt Act?"
3. ' The finding was given in favour of the petitioner, and the suit was decreed. No appear seems to have been filed against it.
4. ' On 14-2-1983, the impugned notice dated 14-2-1983 was served in which it was stated as follows :- "It has come to our notice that you are manufacturing detergent under the brand name of "White", which is liable to a duty of Central Excise under item 04.05-B of the First Schedule of the Central Excises and Salt Act, 1944, and as such you are required to carry on this business only after meeting all the requirements of law under the Central Excises and Salt Act 1944 and the rules made thereunder. But on investigation it has been found that you have neither obtained the Central Excise Licence nor you are paying any duty thereon.
5. ' You are, therefore, asked to follow the provision of the above-mentioned law forthwith without any loss of time, failing which necessary action will be taken against you, besides under other provision of the law, under section 9 of the Central Excises and Salt Act, 1944.
6. ' Your compliance report of the above instructions should reach this office within seven days from date hereof."
7. ' The petitioner has contended that in view of the judgment and decree passed in Suit No, 233/76 which is valid and operative, the respondent cannot impose any duty and declare the petitioner's goods as excisable goods.
8. ' Comments were called from the respondent who has stated that the judgment and decree passed by the learned Civil judge was based on interpretation of item No, 23 of the First Schedule to the Central Excises and Salt Act, 1944, but due to subsequent legislative amendment, the said judgment is not applicable now.
9. ' Mr. Sami Ahmed, the learned counsel for the petitioner has contended that the judgment passed by the learned Civil Judge is operative and the respondents cannot be allowed to violate it As stated above, the issue between the parties in the suit was whether the plaintiff's product was covered with the definition of soap as given in item No, 23 of the Central Excises and Salt Act"? The learned Civil Judge has given a finding in the negative. In this regard it will be pertinent to note the definition as provided by Item 23 which is reproduced as follows "Item 23. `Soap'.-Soap means any variety of product known commercially as soap and includes other detergents which are used for the purpose for which the soap is generally used."
10. ' By Finance Ordinance, 1970, the entire First Schedule to the Central Excises and Salt Act, 1944 was substituted by a new Schedule. Item 29 drastically changed-the definition of soap as.Follows : "Item 29. 'Soap and detergent'.-Soap, all sorts, but excluding liquid soap, paste soap, shaving soap and depilatory soap.
(1) Soap flakes, soap powder and detergents of all sorts,
(2) Soap other than soap falling under item 1."
11. Again by Finance Ordinance, 1979 the First Schedule was substituted by a new schedule and detergent was placed under a separate item as 04.05-B which is reproduced as follows : "Item No, 04.05-B. `Detergent':- ' Detergent means organic and synthetic surface active agents, surface active preparations, emulsifiers and foaming or washing preparations, in any form excluding products falling under item No, 04.05, and sub-item `A' above whether or not containing soap and includes soap flakes, soap powders and the soaps containing synthetic detergent."
12. ' The legislative history will show how the definition of soap and detergent has changed from time to time. It will thus be noted that the two definitions provided in 1966 and 1970 as quoted above are different and distinguishable. The first definition seems to be restricted to products commercially known as soap including detergent used for the purpose for which soap is generally used. However, in the amended definition of 1970 there is no such qualification in respect of detergent. It in fact includes all sorts of soap except liquid soap, paste soap, shaving soap and depilatory soap as well as detergent of all sorts. Again in 1979 soap and detergent were separately classified giving a definition which is different from items 23 and 29.
13. ' Mr. Sami Ahmed, the learned counsel has contended that the learned Civil Judge had taken note of item No, 29 (1) of Excises and Salt Act, 1944 and on consideration has given a definite finding that the petitioners' products do not fall within the category of soap. He has referred to the following paragraphs from the said judgments :- "I have heard the learned counsel for the plaintiff and perused the report of Customs Testing Laboratory Exhs. 6 and 12 and find that White has not been classified as any catagory of soap whereas the Chemical Examiner of Custom Laboratory has given his report that it is a metal cleaning preparation, most appropriately classifiable under item 29(1) of the First Schedule to the Central Excises and Salt Act, 1944. The report of the Custom Testing Laboratory is clear that these are compounds of Soda Ash, some clay like substances of smaller amounts of surface active substances (Detergents). It is a metal cleaning preparation. From both the above reports it is clear that White `has not come within the category of soap'."
14. The finding is on the basis of issue No, 5 which has been reproduced above. The question for consideration before the learned Civil Judge was "Whether the product of the petitioner was covered by the definition of soap as given in item No,
23. There was no issue relating to item No, 29 and an observation relating to that particular item was merely an orbiter. It may be noted that even after referring to item No, 29(1) the finding is that the petitioner's products do not come within the catagory of "Soap". By amendment in Schedule whereby the definition of soap and detergent has been changed the judgment and decree passed in the suit on the basis of item 23 will not give the present case.
15. ' The impugned action has been taken on the basis of definition of detergent as provided by item No, 04.05-B which according to the respondent covers the petitioner's goods. This definition is completely different from items Nos. 23 and 29. The petitioner, therefore, on the basis of the judgment and decree passed in his favour, cannot challenge the impugned action. He will, however, be at liberty to present his case before the respondent to show that his products are not covered by item 04.05-B.
16. ' The petition is dismissed in limine. .11111. NO