' This first appeal under section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 6-11-1969, passed by the District Judge, Karachi, whereby he decreed the respondent/ plaintiff's suit for Rs, 22,880.50 with costs and interest at 6 per cent. Per annum from the date of the suit till the satisfaction of the decree.
2. The facts giving rise to this first appeal briefly stated, are as follows : ' The appellant imported a consignment of galvanized iron pipes of different sizes from Germany as per s. s. MANGLORE, as per Bill of Lading dated 3-7-1950, (Exh.
361. The goods were cleared from the Customs as per Bill of Entry dated 24-2-1951 (Exh. 52), after payment of the customs duty, etc.
3. Thereafter, on or about 20-9-1963, the respondent filed a suit for recovery of Rs, 23,009.87 being the difference of the maximum price fixed by the Iron and Steel Controller (hereinafter called the Controller) and landed cost after allowing 161 per cent. Profit on the landed cost and 74 per cent.
Futher concession to the appellant.
4. The claim was based on a notification dated 3-7-1950 (Exh. 6), issued by the Controller pursuant to paragraph 12 of the Iron and Steel (Control of Production, Distribution and Import) Order, 1948 (hereinafter called the Order), whereby the equalisation fund was established and contributions from the Importers of Iron and Steel of the categories specified therein were required for the purpose specified therein. It will be useful, if the entire notification is reproduced hereinbelow, which reads as follows "THE GAZETTE OF PAKISTAN (EXTRAORDINARY), PUBLISHED BY AUTHORITY KARACHI, TUESDAY, JULY 4, 1950 Government of Pakistan Ministry of Industries.
NOTIFICATIONS Karachi, the 3rd July 1950 ' No, 1-1(3)/49 (I).-In pursuance of paragraph 12 of the Iron and Steel (Control of Production, Distribution and Import) Order, 1948, the Controller is pleased to order as follows
(1) There shall be established an equalization fund (hereinafter referred to as the said Fund) for the purposes specified in paragraph 12 of the Iron and Steel (Control of Production, Distribution and Import) Order, 1948 (hereinafter referred to as the said Order).
(2) Contribution shall be made to the said fund by importers of iron and steel of the categories specified below imported from countries other than India on or after the 15th June, 1950, at the rates specified against each category :- Description of material Item No, of the Schedule Rate by which to the Iron price may by Steel Con- increased trol Order, 1948
1. Heavy structurals (including heavy sections Rs, of joists, channels and angles). 3 25 per ton
2. Light structurals (including light sections of joists, channels, angles tees and rails of 30 lbs. And under. 4 25 per ton
3. Tyres, wheels and axles. 5 25 per ton
4. Heavy rails (over 30 lbs.) fish-plates, dog spikes, chair spikes and screw spikes. 7 25 per ton
5. Tinplate, terneplate. 8 100 per ton
6. Black Sheets (plain and corrugated). 9 50 per ton
7. Galvanised sheets (plain and corrugated in- cluding defectives seconds and cuttings). 10 150 per ton
8. Plates (Shipbuilding) 11 25 per ton
9. Plates (ordinary mild steel and high tensile) 12 25 per ton
10. Plates (Bullet proof) 13 25 per ton
11. Bars (including Oates, squares, rounds, hexa- gone and reds). 14 25 per ton
12. Black or galvanised wire, whether plain or barbed. 15 25 per ton
13. Wire (miscellaneous) 16 75 per ton
14. Hoop and strip. 17 100 per ton
15. Steel pressure pipes, tubes and fittings coated or uncoated excluding electrical conduit pipes).
(a) Galvanised. 18 150 per ton 50 (b) Black. Er ton
(3) The contributions at the rate specified in paragraph 2 above shall be paid to the Custom Officer of the port of import alongwith custom duties for credit to the said fund.
(4) The Controller shall make payment out of the said fund for any of the purposes specified in paragraph 12 of the said Order.
(5) The fund established for equalizing the prices of Belgium and Indian corrugated iron sheets under Controller's order (letter) ) No, 1-1-2 (5)/49, dated 4th February, 1950, shall be deemed to be a part of the said fund and shall be deemed to have been constituted under this Order."
5. It may be convenient if the relevant provisions of the order are also quoted here for the facility of future reference :- "Section 3.-The provision of this order shall apply to all iron and steel of the categories specified in the Schedule to this Order."
"Section 12. Power to fix prices.-(1) The Controller may, from time to time by Notification in the Gazette of Pakistan, fix the maximum prices at which any iron or steel may be sold by (a) a producer, (b) an importer, (c) a Central or Provincial Stockholder or Importer-cumStockholder and
(d) by any other person or class of persons. Such price or prices may differ for iron and steel obtainable from different sources and may include allowances for contribution to and payment from any equalisation fund established by the Controller for equalising freight, the concession rates payable to each producer or class of producers under agreements entered into by the Controller with the producers from time to time, and any other disadvantages.
(2) For the purpose of applying the prices notified under sub-clause (1), the Controller may himself classify any iron and steel and may, if no appropriate price has been so notified, fix such price as he considers appropriate.
(3) No producer, importer or stockholder or other person shall sell or offer to sell, any iron or steel at a price exceeding the maximum prices fixed under sub-clause (1) or (2).
SCHEDULE IRON AND STEEL TO WHICH THE ORDER APPLIES 1.
2.
3.
4.
Pig iron and iron and steel scrap including cast iron scrap.
6. .
7. .
8. ,
9. . .
Galvanised sheets (plain and corrugated) including defectives, seconds and cuttings.
12. . .
13. . . .
14. .
15.
16. .
Steel pressure pipes, tubes and fittings coated or electrical conduit pipes. Uncoated excluding
19. Cast iron pressure pipes and specials, including cast iron dawn pipes (drain or rain water pipes).
6. The appellant/defendant defended the suit and filed their written statement wherein they denied their liability for the amount claimed in the suit on several grounds including that the provisions of the Order do not apply to galvanised iron pipes, that the Order was ultra vires the powers conferred on Central Government under section 3 of the Essential Supplies (Temporary Powers) Act, 1946 (hereinafter called 1946 Act), etc. The controversy between the parties is reflected by the following issues framed by the trial Court :- "(1) Whether the defendants are not liable to pay the dues in suit?
(2)Whether the provisions of section 12 of Iron and Steel Order, 1948 and the establishment of equalization fund are ultra vires?
(3)Whether the claim of the plaintiffs is barred by Limitation Act?
(4)To what amount, if any, the plaintiff is entitled?"
7. After recording the evidence the trial Court decided all the issues in favour of the respondent and decreed the suit by the judgment and decree dated 6-11-1969, now impugned by the appellant in the present appeal.
8. I have heard Mr. Munawer Abbas, Advocate for the appellant and Mr. S. Nasarullah Awan, Advocate for the respondent.
9. Mr. Munawar Abbas, Advocate has raised the following points in support of the appeal: (1)That the order under which the notification on the basis of which the claim was made from the appellant by the respondent is ultra vires the powers conferred by section 3 of the Act inasmuch as equalization fund could be established only in respect of the essential commodities which are mentioned in section 2 of the Act which includes iron and steel and which does not include galvanised iron pipes.
(2)That the notification applies inter alia, to galvanised sheets and steel pressure pipes, tubes and fittings, coated or uncoated excluding electric conduit pipes but it does not apply to galvanised iron pipes.
' In order to appreciate the first point it may be necessary to mention the definition of "essential commodities" provided in section 2(a) of the Act which reads as follows :- "(a) "essential commodity" means any of the following classes of commodities
(I) foodstuffs.
(ii) Cotton and woollen textiles. (ill) Paper.
(iv) Petroleum and petroleum products.
(v) Spare parts of mechanical propellod vehicles,
(vi) coal.
(vii) iron a steel. f viii) mica."
It is clear from the above definition that words iron and steel in item (vii) are used in generic sense and represent the clam Steel pressure pipes, tubes, fittings, coated or uncoated excluding electrical conduit pipes, galvanised or black and other items mentioned in the Order are species o iron or steel and, therefore, it cannot be said that the order issued thereunder providing establishment of equalization fund and requiring contributions to the same in respect of the items mentioned in the schedule to the Order is ultra vires the powers conferred by section 3 of the Act.
This disposes of the first point raised before me.
' Now, as regard the second point I find substance in it for in the Schedule to the Order a distinction is made in steel pressure pipes etc. And cast iron pressure pipes etc. As the same are mentioned separately at items 18 and 19 thereof, while in the notification only the last item namely, steel pressure pipes etc. Are mentioned. There is no mention of cast iron pressure pipes and specials including cast iron dawn pipes (drain or rain water pipes).
' It was submitted by Mr. Munawar Abbas that the appellant had imported galvanised iron pipes as stated by the respondents themselves in paragraph 3 of the plaint as well as in correspondence exhibited in the suit and contribution to the equalization fund could be required only in respect of items mentioned in the notification and since galvanised iron pipes are not mentioned in the notification, the same did not apply to the goods improted by the appellant. Yesterday, I gave an opportunity to Mr. Awan to find out whether the notification dated 3-7-1950, was subsequently amended by addition of iron pipes or galvanised iron pipes but he frankly admitted that he has not been able to find out any such notification. This question has been dealt with by the learned District Judge in paragraph 9 of the impugned judgment as follows :- "9. According to Mr. Munawar Abbas, Iron and Steel (Control of Production, Distribution and Import)
Order, 1948 cannot be applied to galvanised pipes because in the Schedule attached to it galvanised sheets have been mentioned at Item No, 10 separately and this shows that galvanised sheets is to be deemed a different item, then other iron and Steel items which have been mentioned in the Schedule while in the notification issued in pursuance of paragraph 12 of Iron and Steel (Control of Production, Distribution and Import) Order, 1948 for the establishment of equalisation fund, this item has not been shown separately. The contention of Mr. Munawar Abbas is not correct. Galvanised sheets are shown separately at item No, 7 in this Notification, Exh. 6, also.
It cannot be denied that galvanised sheets are also made up of steel and iron. The word "galvanized" according to Oxford Dictionary means coated with metal by electrolysis or iron coated with zinc to protect it from rust. It is, thus, clear that galvanized sheets come within the mischief of paragraph 12 of the Iron and Steel (Control of Production, Distribution and Import) Order, 1948 and the defendants know about it and stated so in para. 3 of their written statement. Moreover, the defendants themselves admitted in para. 3 of their written statement as follows :- "The consignment of galvanized iron pipes was no doubt imported from Germany...............................................
A perusal of the above quoted passage from the impugned judgment would show that the learned District Judge has not found that the galvanized iron pipes are covered by item No,
18. So far as item No, 10 namely, galvanized sheets (plain and corrugated) including defectives, seconds and cuttings are concerned they are quite different from the iron pipes as conceded by Mr. Awan. Even item No, 18 of the notification would not cover the goads imported by the appellant for cast iron pressure pipes have been separately mentioned in the Schedule to the Order at item No, 19 and, therefore, contribution to the equalisation fund was required inter alia in respect of steel pressure pipes mentioned in the notification and not in respect galvanised iron pipes. Even from steel pressure pipes, electrical conduit pipes are excluded. The distinction between the steel pressure pipes an cast iron pressure pipes is made quite clear in the Schedule to the Order itself by mentioning them separately at items Nos. 18 and 19.
' No proposition is better established than that a tax cannot be imposed on a subject except by clear and unambiguous language. I may refer here the following statement in Craies on Statute Law (7th Edition), page 112: "Express and unambiguous language appears to be absolutely indispensable in statutes passed for the following purposes : Imposing a tax or charge....................................
' Also see Privy Council's decision in The Oriental Bank Corporation v. Henry B. Wright wherein it was observed by their Lordships of Privy Council at page 856 of the report as follows :- "The intention to impose a charge upon the subject must be shewn by clear and unambiguous language."
' I may also refer to the observations of Lord Cairns in a House of Lord's Case namely, Charles James Partington v. The Attorney-General at page 122 of the report, which read as follows :- "I am not at all sure that, in a case of this kind - a fiscal case - form is not amply sufficient : because, as I understand the principle of all fiscal legislation, it is this : If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however, apparently within the spirit of the law, the case might otherwise appear to be. In other words, if there be admissible, in any statute, what is called an equitable construction, certainly such a construction is not admissible in a taxing statute, where you can simply adhere to the words of the statute."
' For the reasons given above the appellant succeeds on the second point. I, therefore, set aside the decree impugned in this appeal. Since Mr. Awan frankly conceded to the legal position, I leave the parties to bear their own costs. 5 App. Casa 842 (1869) L R 4 HL 1001 2 1 2