NAIMUDDIN, J.-1. By this application under section 17(1) of the Sales Tax Act, 1951, the Commissioner of Sales Tax/Income-tax (Central Zone), Karachi, has referred the following question of law arising out of the order of the Income-tax Appellate Tribunal, dated 2-11-1973.
"Whether on the facts and in the circumstances of the case the learned Tribunal was justified in holding that fire bricks and fire clay are exempt under item 34 of Sales Tax Notification No. 7, dated 27-6-1951?"
2.The Tribunal in the order, out of which the present question has arisen, has held that 'fire brick' is not liable to sales tax as it is exempted under section 7 of the Sales Tax Act, 1951 and for reasoning has relied on its earlier decision in Sales Tax Appeal No. 8 of 1963-64, filed by the respondent.
3. The term or word 'brick' has not been defined in the Sales Tax Act or the Sales Tax Rules or the notification under which it is exempted, lt has therefore to be understood in its ordinary meaning.
We may therefore refer to various dictionaries to know its meaning.
Ballentine's Law Dictionary, 3rd Ed., page 156, states its meaning as: "Building material, made from clay and shale, moulded and baked in a kiln in oblong blocks, 4 inches were, 8 inches long, and 2-1/2 inches high"
According to the Shorter Oxford English Dictionary, Vol-1, page 220, it means;- "a substance formed of clay, kneaded, moulded, and hardened by baking with fire, or sun-dried, used in building.
2. A block of this substance, of a definite size and shape; usually rectangular. a. a similar block or slab of sand and lime, concrete, etc." According to the Chambers Twentieth Century Dictionary revised Edition, page 160, it means;- "baked or 'burned' clay; a shaped block of burned clay, generally rectangular (the standard dimensions being 9 x 4-1/2 x 3 inches); a brick-shaped block of other material, often compressed; a child's building block of wood, etc.; a loaf or a bun more or less in the shape of a brick."
According to Webster's New International Dictionary, second Edition, page 333, it means; "akin to. A building and paving material made from clay (either pure or mixed, as with sand, lime, etc.) by moulding into blocks while moist and hardening it in the sun or by fire. Sun-dried brick, used extensively in ancient times, and still made in warm countries, in muchless durable tank baked or burned brick. (See CLAY). Brick is burned either in a kiln or in stacks or clamps. The ordinary red colour is due to the presence of it on compounds which are converted into the red oxide. A greenish-blue colour, as in sewer, or blue, brick, may be obtained by burning brick in a reducing fire (low in oxygen), or a brown or yellow colour by adding lime, pressed into blocks and steamed.
2.a. An individual moulded block of the above material, usually rectangular. The average dimensions of an English brick may be taken as 2-3/8 x 4-3/8, x 9 inches; of an American brick, 2- 1/4 x 3-3/4 x 8 inches. b. A block of other material, as cement, concrete, sand and lime, etc., of similar size and shape.
3. Any oblong rectangular mess; as, a brick or ice-cream.
4. A first-rate good fellow; as you're brick. Colioq
3. Hort. A compressed block of dried manure containing mushroom mycelium, or spawn, used in mushroom beds.
6. Brick red."
4. The question for consideration is "whether 'fire brick' is included in the word 'Brick' or not.
According to Mr. Dareshani 'fire brick' is a special kind of brick and in this regard he has relied on the meaning of 'fire brick' as given in Chambers Twentieth Century Dictionary, Revised Edition, page 491, which gives its meaning as "a brick refractory to fire, used for furnace-linings, etc." He has also referred to Webster's New International Dictionary Second Edition, page 952, for its meaning. This dictionary states its meaning as "a refractory brick, as of fire clay capable of sustaining high temperature without fusion and used for lining furnaces, etc., and such bricks are used for different purposes." He therefore, argued that such bricks are not exempted under the notification.
5. We regret we cannot accept this argument for the word "brick" used in item No. 34 of the notification is without any qualification and in our opinion is used in the generic sense. It has also been used in its gene- rally accepted sense of a block of clay burned or baked, generally rectangular in shape and used as building material. If it is burnt or baked at a higher degree or some other material such as lime or sand etc. Is added to it, it would not make any difference as it would still be called a 'brick' and it will still be used as building material. We have already referred to the meaning of 'brick' in Webster's International Dictionary and other dictionaries and according to them it can be of various kinds, colours, size and it is generally make of clay. If the Legislature had intended to exempt or not to exempt bricks of a particular kind only it would have indicated so by using qualifying words. Bricks are generally used as building material for construction of walls, roofs, floors and pavements. It will be seen that 'fire bricks' are also used for lining furnaces as stated in Webster's New International Dictionary and this use is akin to the use of bricks for laying floors.
6. A Division Bench of this Court has already taken the same view as taken by us in this case, in S.T.C. No. 79 of 1973. [The Commissioner of Sales Tax (Central Zone), Karachi vs. Messrs Pakistan Progressive Cement Industries Ltd., Karachi]. We may reproduce the relevant observations which are as follows:-- "S.-Item No.34 of the said Notification relates to 'bricks' only, Mr. A.A. Dareshani has argued that 'fire bricks' in respect of which exemption is claimed by the respondent, do not fall within the category of 'bricks' relating to Item No. 34. He was unable to explain as to, how 'fire bricks' are not included in the category of 'brick'. 'Brick' is a generic term whereas 'fire bricks' is a species of 'bricks'. If 'bricks' are exempted from sales tax, the inference would be that all species of 'bricks' including 'fire-bricks' would also be exempted under Item No. 34."
7. It was then argued by Mr. Dareshani that the assessee was claiming exemption from payment of sales tax under item No. 34 of the notification and therefore the burden was on the assessee to show that 'fire bricks' come within the purview of item No. 34 i.e. 'bricks' and they have failed to do so.
8. In reply it would suffice to say that our whole discussion is directed towards the consideration whether fire bricks are included in term 'brick' used in item No. 34 and we have reached the conclusion it does.
9. Learned counsel for the parties stated that fire clay was not involved in this case. They explained that it was involved in other cases therefore, the same question was erroneously repeated in this case. They agreed the question need not be answered in relation to fire clay.
10. We therefore, answer the question deleting the word 'fire clay' from it in affirmative.