1. ' SAEEDUZZAMAN SIDDIQUI, J--The petitioner has challenged in this petition the imposition of sales tax by respondents on 'nitrous oxide' gas. The petitioner is producing-nitrous oxide' gas since 1968 and supplying the same to Hospitals for use as an anaesthetic agent. It is not disputed before us that since 1968, 'nitrous oxide' gas supplied by the petitioner to hospitals was treated as an item exempted from payment of sales tax. The case of the petitioner is that this exemption was granted under various notifications issued by the Federal Government from time to time under subsections
(1) and (2) of section 7 of Sales Tax Act and the last such notification was issued on 25-6-1981 which bears No, SRO 666 (1)181. It is not disputed that even under SRO. 666 (1)/81, dated 25-61981, 'nitrous oxide' gas supplied by the petitioner to hospitals continued to be treated as an item exempted from payment of Sales Tax until 14-3-1987, when for the first time respondent No,5 by his Letter No,IV-A (7) Misc-Corr-Reg/City/87, dated 14-3-1987 called upon the petitioner to maintain Central Excise record of `nitrous oxide' gas and clear the same on payment of Sales Tax @ 12/1/2 % ad velorum w.e.f 14-3-1987 on the ground that it is not covered by S.R.O. No,666 (1)/-81, dated 25-6- 1981. According to petitioner 'nitrous oxide' gas supplied by them to the hospitals falls under item No,22 of S R 0 No,666 (1)/81, dated 25-61981 which reads as follows:- {{TABLE}} "30.03 (including Unani and Ayurvedic medicines and drugs except liquid glucose and rock phosphate."
2. Item No,30.03 of Pakistan Customs Tariff which has been exempted from payment of Sales Tax under the above S.R.O. Reads as follows: "30.03 Medicaments (including veterinary medicaments) A. Containing antibiotics or derivatives thereof. 01 Pencillin, finished and combinations thereof.
3. 0.2. Other.
4. B.Containing hormones or products with a hormone function but containing neither antibiotics nor derivatives thereof. Free Free C. Containing alkaloids or derivatives thereof but containing neither hormones nor products with a hormone function, nor antibiotics nor derivatives of antibiotics. Free Free ' Pakistan Customs Tariff which is reproduced earlier in this order. We have already stated above the 'Nitrous Oxide' gas obtained by compounding together Nitrogen and Oxygen and as such in accordance with the explanatory notes appended to heading No, 30.03 both in the P.C.T. as well as in Brussels Nomenclature, 'Nitrous Oxide' gas when used as an aesthetic agent in surgery falls under heading No,30.03 as it is covered in the definition of medicament. The fact that 'Nitrous Oxide' could also be classified under heading No,28.13 of P.C.T. Does not mean that if could not be classified under heading No,30.03 Mr. Abdul Sattar, the learned counsel for the respondents, however, contended before us that the petition is not maintainable as the petitioner failed to avail the alternate remedy available to them by way of appeal and revision before the Collector and Board of Revenue and as such this petition is not maintainable. It is true that normally a petition under Article 199 of the Constitution is not entertained by the High Court where remedy by way of appeal or revision is available to the aggrieved party under the relevant statute. However, in the case before us the petitioner has placed on record the cetter C. NO.16 (2)-ST/87, dated 15-11-1987 which reads as follows:- "GOVERNMENT OF PAKISTAN CENTRAL BOARD OF REVENUE C.No,16 (2)-ST/87 Islamabad, 15th Nov. 1987 From:- ' Mr.Muhammad Saeed, ' Secretary (Sales Tax), ' Tele: 822848 ' To: ' The Collector, ' Central Excise & Sales Tax, ' Karachi ' SUBJECT: SALES TAX ON NITROUS OXIDES GAS ' Kindly refer to your C. No,11/28-ST/87, dated 22-4-1987 on the subject noted above.
2. The matter has been examined in the Board and it is regretted that exemption from sales tax cannot be allowed on Nitrous Oxide Gas (PCT heading 28.13).
5. Sd/ (Muhammad Saeed)
6. Secretary (Sales Tax)"
7. As the decision in the case has already been taken by the authority which is at the apex in the hierarchy of the department no useful purpose will be served by directing the petitioner to avail of the remedy of appeal and revision under the relevant statute which in the circumstances of the case is illusory. We accordingly hold that 'nitrous oxide' supplied by the petitioners to hospitals for use as a `anaethetic agent' falls under heading No, 30.03 of Pakistan Customs Tariff (P.C.T.) and as such it is exempted from payment of sales tax under S.R.O. No, 666 (1) 81, dated 25-6-1981. The classification of 'Nitrous Oxide' Gas under heading No,28.13 of Pakistan Customs Tariff by the respondent is accordingly declared without lawful authority and of no legal effect. There will, however, be no order as to costs.
8. ' We are informed that the petitioner had furnished a bank guarantee in this Court for the disputed amount which shall remain operative for a period of two months from today to enable the respondents to avail of the remedy before the Supreme Court against this order if they so desire.
9. However, if no appeal is filed by the respondents within the aforesaid period and they failed to obtain appropriate order from the Supreme Court in this regard, the bank guarantee furnished by the petitioner shall stand discharged on expiry of the above period.
10. '