JUDGEMENT: SHAFIUR RAHMAN, J.-1. The appellants, manufacturers of confectionary of various descriptions, have, by four separate appeals by special leave challenged the judgment of the Sind High Court, dated 14-5-1976 whereby their Constitutional petitions with regard to proper classification under Pakistan Customs Tariff (hereinafter referred as P.C.T.) of liquid glucose a raw-material used commercially by them, were dismissed with no orders as to costs.
2. The case of the appellants was that they were since long importing liquid glucose in drums mostly from China, It was always in the past classified under the P.C.T. Heading 17.02-A as 'chemically pure glucose' and was 'charged to duty at 25% ad valorem. When the disputed consignments of liquid glucose arrived they were differently treated by the customs authorities inasmuch as that they were taken to be a commodity specified under heading 17.02-B "other". The duty was levied at 62-1/2 % ad valorem. The appellants objected to such a treatment, pointed out to the past departmental practice and the arrangement and the explanatory notes in the Brussel's Nomenclature but the department did not relent.
3. Four separate constitutional petitions were instituted challenging such a treatment by the custom authorities which was a clear departure from the departmental practice followed during the past four or five years and was well-understood by those in the business. The main ground taken up by the appellants before the High Court was that on account of such a prolonged departmental practice the customs authorities were estopped from giving a different meaning to the same commodity, from reclassifying it and from imposing a higher rate of duty. As regards the uses to which the imported commodity was being put it was stated that it was used in the manufacture of (i) pharmaceutical products, (ii) food products, (i.e) confectionaries, biscuits etc.,
(iv) brewing,.(v) tobacco for smoking'. Irrespective of the use to which it was being put it was liable to a uniform rate of duty at 25% ad valorem. A grievance was also made of the fact that no notice of hearing Was given nor any particulars or details supplied by any chemical or laboratory tests undertaken.
4. The learned Judges in the High Court distinguished the case of Nazir Ahmad vs. Pakistan PLD 1970 SC 453 relied upon by the appellant for estopping authorities from extending such a treatment and instead relied on the Commissioner of Agricultural Income-tax, East Bengal vs. B.W.M. Abdur Rahman 1973 SCM R 445 for holding that the department was not estopped from treating the commodity in accord with law in spite of long departmental practice prevalent earlier which was different. As regards the other contentions of the appellants, the learned Judges quoted with approval the observation in Craies that it is often fallacious to give to a phrase a meaning individually of the words making up the phrase. The words in combination may have acquired a special meaning of their own. From this, it was concluded that 'chemically pure glucose' has a meaning of its own and it must be confined to Dextrose alone with the molecular formula C6H12O6 a white crystalline powder and this was distinguishable from commercial glucose which was a mixture of Dextrose and was viscous liquid in form. The learned Judges in the High Court concluded by observing that:- "the fact remains, however, that the Heading 17.02 classifies chemically pure glucose independently and as a different substance from other sugars which includes liQuid glucose which is otherwise known as commercial glucose."
All the petitions were, therefore, dismissed.
5. Mr. Mansoor Ahmed Khan, the learned counsel for the appellants has before us also emphasised the practice of the department, for estopping its officers from such a volte face. He has also drawn our attention to the arrangement and classification of various commodities in P.C.T. And the qualifying notes governing each head. His contention is that group A of Heading 17.02 deals with glucose and glucose alone and not with glucose D or dextrose. In importing these words, according to the learned counsel, the expert and the Court have introduced extraneous aids to the construction of plain words which at no stage presented any difficulty in understanding or application to the commodity imported. The use to which the commodity was being put or was likely to be put was, according to the learned counsel an irrelevant consideration in the contest.
6. The learned Deputy Attorney-General on the other hand contended that there is no estoppel or waiver in interpreting or applying a law, particularly so where it is based on expert's analysis of a chemical substance. He has relied on the Brussels' Explanatory Notes to the Nomenclature wherein chemically pure glucose has been equated with Dextrose which is a fractional crystallate of glucose. In support, he has relied on the expert opinion with regard to the disputed consignment of the appellants which were subjected to enhanced duty. The learned Deputy Attorney-General has also pointed out to the rationale of the reduced custom duty by relating it to the pharmaceutical uses to which dextrose is being put. According to him, the commercial use of the product which was not dextrose but glucose complete with all the three constituents and in liquid form was given a different treatment and for a reason referable to its use in business and was eminently justified.
7. In order to understand the department's case on the factual plane it is necessary to advert to the counter-affidavit of Mr. Muhammad Akmal, Assistant Collector of Customs, Appraising 1, Custom House Karachi, placed on record of Constitution Petition No. 278 of 1976 (C. A. K-8 of 1977). He Stateds- "In the manufacture of confectionary and sweats chemically pure glucose is not used. It is used for medicinal purposes and generally it comes in sealed glass tubes and not in drums.... In chemically pure glucose which is commonly used for medIcinal purposes and imported in sealed tubes, any mixture of maltose, dextrine, water or starch will be fatal for the patients." "the facts that have emerged out from the records of the respondent are on the basis of report of the Chemical Examiner Mr. S.L). Khan, dated 30-12-1972. The consignments of the petitioners were cleared on payment of duty of 23% ad valorem. Mr. Khan's report was as under:- "The sample described as liquid glucose is found to be an acquous concentrate of glucose (liquid glucose) chemically pure."
"It was not realized at that time that the report of the said Chemical Examiner on the basis of which the goods were cleared, the liquid glucose cannot be chemically pure and the very definition of liquid glucose contains mixture of different substance. In February, 1976 when the petitioners imported liquid glucose in drums again a sample was sent to the Customs Laboratory and Mr. A.R.
Patel who had replaced Mr. S.L). Khan as Chemical Examiner reported after testing the sample as under: "The sample on examination is found to be liquid glucose."
The definition of liquid glucose has been cited above. A sample of another consignment of similar liquid glucose imported in drums was sent to the Chemical Examiner for testing and on 19-3-1976 he reported as under: "The sample is found to be commercial glucose composed of dextrose, maltose and dextrine. It is not synonymous to D-glucose chemically pure. It is in the form of thick viscous liquid."
Another consignment was also reported after being tested by the same Chemical Examiner on 20- 3-1976. The report runs as under: "The same is found to be commercial glucose composed of dextrose, maltose and dextrine. It is not synonymous to D-glucose chemically pure. It is in the form of thick viscous liquid."
Obviously the duty on chemically pure glucose is less because of its use for medicinal purposes".
8. This factual affidavit is valuable on at least on two points. Firstly, it is useful in understanding explaining and answering the first ground taken up by the learned counsel for the appellants the department being estopped by its conduct, practice and past treatment from a volte face.
Secondly, it is useful in tracing the very genesis of this controversy. The commodity imported remaining the same the P.C.T. Entry remaining as it was, and the use of the imported stuff also suffering no change, why an altogether different view was taken.
9. It is true that a departmental practice consistently followed, giving rise to vested rights over the years will not be lightly interfered so as to disturb or destroy the rights. A classic example of it is found in the case decided by this Court and cited by the learned counsel for the appellants viz. Nazir Ahmad vs. Pakistan. But in this case it is not so much the language of the statute which is presenting a problem as the report of the technical expert. As long as the report of Mr. S.L). Khan held the field the commodity was classified and treated as "Glucose-chemically pure" when Mr. Patel's report took over the field the same commodity acquired a different chemical composition and was treated differently. So it is the technical expert's report which has brought about the change. All said and done no rule of estoppel controls an expert in bona fide analysing a chemical with a view to determine its constituents, or composition. The argument on extoppel is misconceived in the context. The report presented by Mr. S.L). Khan had the merit of relating the commodity to the P.C.T. Classification heading by classifying it as glucose chemically pure. The report of Mr. Patel follows no such pattern. The terms used in his report are "commercial glucose" and "D-glucose". These are not the words used in the P.C.T. Classification. The P.C.T. Classification was in the relevant years as follows:-- "Sugars and Sugar Confectionary.
17.02. Other sugars, sugar syrups; artificial honey (whether or not mixed with natural honey); Caramel A. Chemically pure glucose. 25% ad va1.
B. Other 62-1/2 % ad va1.
10. It is also necessary to keep in view the following governing Notes to the P.C.T. Chapter 17 heading containing the above entry, It is as follows:-- "Chapter 17 Sugar and sugar confectionary Notes
(1) This Chapter does not cover:
(a) Sugar confectionary containing cocoa (heading No. 18.06)
(b) Chemically pure sugars (other than sucrose, glucose and lactose) and other products of heading No. 29.43; or
(c) Medicaments and other products of Chapter 30.
(2) Chemically pure sucrose, whatever its origin, is to be classified in heading No. 17.01".
11. Brussel's Nomenclature Explanatory Notes contain the following corresponding entry:-- "17.02. Other sugars, sugar syrups, artificial honey (whether or not mixed with natural honey); Caramel.
This heading covers the sugars proper (other than those included in heading 17.01), sugar syrups and also artificial honey and caramel.
(A) OTHER SUGARS The principal sugars falling within the scope of the heading (provided they do not contain added flavouring or colouring matter see heading 17.05) are:
(I) Glucose occurs naturally in fruits and honey. Together with an equal part of fructose it constitutes invert sugar.
The present heading includes chemically pure glucose (or extrose) and commercial glucose.
Dextrose (C6H12CU) is a while crystalline powder, It is used in the food and pharmaceutical industries.
Commercial glucose is obtained by hydrolysing starch with acids and/or enzymes, It always contains, in addition to dextrose, a variable proportion of di-, tri- and other ply-saccharides (maltose, maltotoriose, etc). It has a reducing sugar content, expressed as destrose on the dry substance, of not less than 20% . It is usually in the form of a colourless, more or less viscous liquid (glucose syrup), or of lumps or cakes (glucose aggregates) or of an amorphous powder. It is used mainly in the food industry, in brewing in tobacco fermentation and in pharmacy".
12. It proceeds to deal with (2) Maltodextrins, (3) fructose or Laevulose, (4) Lutose (5) Maltose (6)
Invert sugar, (7) Sucrose sugars, all under category A. Thereafter follows the residuary (b) other with sugar syrups.
13. Looking back at this arrangement in the reverse it is clear that group A nomenclature corresponds to Group A of P.C.T. (barring lactose which has been distinguished under separate heading 17.02) and Group B of the nomenclature to residuary group B of the P.C.T.
14. It is again to be noted that Chapter 17 P.C.T. Deals with confectionary item, the governing notes exclude altogether the pharmaceutical product, and. What we find in 17.02 as chemically pure glucose is a confectionary product and not a pharmaceutical product. The entire basis of reasoning of the department is, therefore, untenable.
15. Apart from the above, the expression chemically pure glucose has a fixed meaning.
Encyclopaedia Brittanica 1950 Vol. 10 defines it at page 444 as follows:- "It is an aldose (aldehyde-alcohol) of the hexose class, having the formula C6H12O6, and is also known as grape sugar or dextrose. The latter name refers to the fact that its solutions rotate the plane of polarized light to the right. (See Carbohydrates.) When pure, it is a while, crystalline powder, but it is more often seen as a yellowish, highly concentrated syrup of a sickly sweet taste; it is also obtainable as warty masses of its hydrate, C6H12O6H2O. Glucose is readily prepared from starch or from cane sugar by the action of dilute acids, and is easily fermented by yeast to give alcohol".
16. The condensed Chemical Dictionary (Arthur Elizabeth Rose, 7th Edition) defines Glucose as "
(liquid) (starch, syrup, corn, syrup) thick syrup liquid, a mixture of dextrose, maltrose and dextrins with about 20% water."
17. From the ordinary meaning of the word glucose, its description and placement in the P.C.T. And the report of the two experts which forms the very basis of the differential treatment by the department we are of the view that the commodity imported by the appellants and the subject- matter of these appeals qualifies under P.C.T. Heading 17.02-A for duty. We accept all the four appeals with costs allowing their constitutional petitions and declaring the liability of the appellants to pay duty accordingly.