JUDGEMENT: AJMAL MIAN, J.--1. The petitioner through this petition has prayed for the following reliefs:- "(a) That the order dated 27-12-1981 of the respondent No. 1 is without lawful authority for the reasons that the goods manufactured by the petitioner are not liable to levy of sales tax, on account of clause 61 of the Sales Tax Act exempting Notification No. SRO-666, dated 25-6-1981 and that the oral orders of the respondent No. 2 and the respondent No. 3 on the representation of the petitioner dated 2-12-1981, 6-12-1981 and 8-12-1981 are without jurisdiction and illegal and liable to be set aside.
(b) That the interpretation placed by the Central Excise Authorities on the impact of Chapter 82 of section XXI of the First Schedule to the Pakistan Customs Tariff, is incorrect and against the admitted principles of the interpretations of the statutes and more so of the interpretation of fiscal statutes.
(c) That the demand ordered to be create^ by the respondent No. 2 on 13-12-1981 orally with effect from 25-6-1981 is illegal.
(d) Costs.
(e) Any other remedy that this Honourable Court may deem fit and proper to grant."
2. The relevant facts leading to the filing of the above petition are that the petitioner is a private limited company and is carrying on business of manufacture and sale of brushes, it seems that upon the enforcement of the Sales Tax Act, 1951 brushes were treated as an exempted item being hand tools, in this regard, reference may be made to Circular No. 9(78)-S. T./70, dated 18th November, 1970 addressed to the Commissioner of Income-tax, Lahore Zone, Lahore, by the Second Secretary, the Central Board of Revenue, stating therein that "Brushes" were covered by the expression "Hand Tools" and hence locally manufactured brushes were exempt from the payment of sales tax under item No. 1 of Sales Notification No. 9, dated 27-6-1951, letter No. 9(78) S. T./69, dated 13-4-1976 addressed to M/s. Pakistan Brush Manufacturers Association by the Second Secretary, the Central Board of Revenue informing them that the Board had clarified to the Sales Tax Authorities that brushes which were used in the manufacture or production of goods were exempt from sales tax, Circular C* No. 9(78) S.T./69, dated 13th April, 1976 addressed to ail the Commissioners of Sales Tax and to all the Collectors Central Excise and Land Customs by the Second Secretary, the Central Board of Revenue, informing them that under Item No. 1 of Notification No. 9, dated 27-6-1951 "Hand tools and Machine Tools" was amended vide S.R.O.
739(I)/75, dated 1-7-1975 as follows:- "Machine Tools and hand tools for use in the manufacture or production-of the goods." It was also stated that since brushes were hand tools, such brushes, which were for use in the manufacture or production of goods would be exempt from sales tax and a letter, dated 10th June, 1976 addressed to Messrs Pakistan Brushes Manufacturers Association by the Second Secretary, the Central Board of Revenue reiterating the aforesaid stand (Annexures marked A, B, C and D annexed to the petition).
However, it seems that on 25th June, 1981 a new S.R.O. 666(I)/81, was issued under subsections (1) and (2) of section 7 of the Sales Tax Act, 1951 exempting, the items mentioned therein, from the payment of sales tax. It will suffice to reproduce the relevant entry, namely, Entry No. 61, which reads as follows:- "Cutlery falling under heading 82.09 and 82.13, 82.14, 82.15; machine tools and hand tools for use in the manufacture or production of goods falling under Chapters 82, 84.45, metal utensils falling under heading 82.13; safety razor blades falling under heading 82.11".
It may be noticed that there is no express reference to brushes in the above-quoted entry, but reference has been made inter alia to Machine tools and Hand tools for use in the manufacture or production of goods falling in Chapter 82, 84.45 etc. Upon the issuance of the above S.R.O., it seems that the Central Excise Department, which was entrusted with the work of collection of sales tax in 1981 issued a notice, dated 27-12-1981 to the petitioner, directing them to pay sales tax at the standard rate of 12-1/2% on brushes manufactured and cleared by them and to maintain account in proper form as prescribed in Chapter XV of Central Excise Rules, 1944 and to give the stock of brushes quality and varieties wise manufactured and cleared by them since 25-4-1981. The petitioner being aggrieved by the above notice has filed the present petition.
4. In support of the above petition Mr. Nasim Ahmed Khan, learned counsel for the petitioner has urged that since admittedly brushes are used for manufacture and production of goods, they are Hand tools, and, therefore, they are exempt from the payment of sales tax under S.R.O, of 25th June, 1981 by virtue of reference to entry No. 82 of the Pakistan Customs Tariff.
In order to appreciate the above contention, it may be pertinent to quote herein below entry No. 82.04 of the Pakistan Customs Tariff, relied upon by the Learned counsel for the petitioner in furtherance of his above submission, which reads as follows:- "82.04. Hand tools, including glaziers' diamonds, not falling with any other heading of this Chapter; blow lamps, anvils; vices and clamps, other than accessories for, and parts of machine tools; portable forges, grinding wheels with frameworks (hand or pedal operated): ((Table)(a) Grinding wheels with frameworks. 85% ad va1.
(b)
Grease guns 50% ad va1.
(c) Shoe lasts of base metal. 50% ad va1.
(d) Others. 50% ad va1. lf may be noticed that the above-quoted entry does not expressly refer ^o" brushes, but it has been urged by the Learned counsel for the petitioner that by implication brushes are included in the above-quoted entry as they are admittedly Hand tools, and, therefore, they are exempt from the, payment of sales tax. It may be observed that it is a well-settled .Principle of interpretation of statutes and documents that in case of ambiguity reference can be made to the other relevant portion of statute or document. We have examined the Pakistan Customs Tariff and have noticed that entry No. 96.01 has direct bearing to the point in issue, which reads as follows:- "96.01.-Brooms and brushes, consisting of twigs or other vegetable materials merely bound together and not mounted in a head (for example, becomes and' whisks), with or without handles; other brooms and brushes (including brushes of a kind used as parts of machines); prepared knots and tufts for broom or brush making; paint rulers; squeegees (other than roller squeegees) and mops.
((Table)) 150% ad va1. 10% 899.72 85% ad va1. 10% 899.72 85% ad va1. 10% 899.72 85% ad va1. 10% 899.72 85% ad va1. 10% 899.72 150% ad va1. 10% 899.72"
A perusal of the above-quoted entry indicates that the same covers brushes. We are inclined to hold that since above-quoted entry 96jp 1 deals with brushes, the same cannot be read into aforesaid entry No. 82.04 by implication. If the Federal Government wanted to exempt brushes from payment of sales tax in the aforesaid S.R.O, dated 25-6-1981 reference would have been made to entry No. 96.01 in addition to entry Nb.
82. "The Latin proverb, "Expressum facit cessare taciturn"
(when there is express mention of certain things, then any thing not mentioned is excluded) is on all fours applicable to the instant case."
However, it was contended by Mr. Nasim Ahmad Khan, learned counsel for the petitioner that since reference has been made only to entry No. 82 1n the aforesaid S.R.O., it is not permissible to make a reference to entry No. 96.01. In our view, the above contention is untenable for the foregoing reasons.
5. We are, inclined to hold that the above S.R.O., dated 25th June, 1981 does not exempt brushes from the payment of sales tax and, therefore, the impugned notice to the extent of making demand with effect from 25th June, 1981 is legal. It may be pertinent to observe that in the impugned notice it seems that by mistake 25th April, 1981 has been mentioned instead of 25th June, 1981.
6. It was then contended by Mr. Nasim Ahmad Khan that the petitioner cannot recover the sales tax from their purchasers to whom they had sold brushes without charging sales tax on the aforesaid representations made by the Central Board of Revenue during the period prior to the service of the impugned notice, and, therefore, they would suffer the above loss, in spite of no fault on their part. It will suffice to observe that the Central Board of Revenue would consider the above aspect sympathetically if it would be approached by the petitioner. With the above observation the petition is dismissed with no order as to costs.