MALIK MUHAMMAD QAYYUM, J.-- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the right of the respondent to charge export tax on the empty Gas Cylinders. The petitioner- Company is running an Industrial Plant in Multan, wherein it manufactures Oxygen and Nitrogen Gases which are filled in Steel Gas Cylinders for storage and transportation to different parts of Pakistan including Lahore. After the consumption of gases, the empty Cylinders are returned to the petitioner for refilling. The petitioner claims that no export duty is leviable on these empty gas cylinders while being transported from Lahore to Multan.
2. Mr. Ali Ahmad Awan, learned counsel appearing on behalf of respondent No.3 has, however, supported the charge of export tax by the respondent by raising two contentions; firstly, that empty gas cylinders are Bardana and secondly, that as the gas cylinders remained in Lahore for a period of more than 24 hours, the tax becomes payable in terms of rule 6 of the Punjab Zila Councils (Export Tax) Rules, 1990. In reply, the learned counsel for the petitioner submitted that the cylinders made of steel cannot on any hypothesis considered to be Bardana. In the alternative, it was argued, under rule 5 of the Export Tax Rules 1990 only those goods which are manufactured within the limits of the District are liable to payment of export tax, and therefore, these imported cylinders could not be subject to payment of the tax.
3. Section 137 of the Punjab Local Government Ordinance 1979 empowers the Local Council to levy all or any of the taxes mentioned in the schedule. According to section 144 all taxes and other charges levied by a Local Council shall be imposed, assessed, leased, compounded, administered and regulated in such like manners as may be provided by rules. Subsection (2) thereof lays down that rules framed under this section may among other matters provided for the obligation of the tax prayers. In exercise of these powers conferred upon it, the Government of Punjab has framed the Punjab Zila Council (Expor Tax) Rules 1990. According to rule 5, the Zila Council can levy and collect tax on the export of goods produced within its limits. In the present case there is no dispute that the cylinder are manufactured abroad and not in Pakistan. Consequently, no export tax can be charged by the respondent on these goods, according to this rule.
4. The learned counsel for respondent No.2 however attempted to argue that rule 5 of the Punjab Zila Councils (Export Tax) Rules 1990 was ultra vires of section 137 of the Punjab Local Government Ordinance 1959. This contention is without any force. Under section 144 of the Ordinance the taxes are to be levied, collected and assessed in such manner as may be provided for the rules. There is thus no warrant for submitting that rule 5 is in excess of the rule making authority of the Government. It is also to be noticed that Zila Council itself has not challenged the validity of this rule and it is highly doubtful as to whether, respondent No.3 who is only a contractor can be heard to say that the rule is ultra vires.
On the face of clear provision of rule 5, the insistence to charge export tax on the cylinders which are not being produced or manufactured in the District of Lahore is clearly illegal. The petition merits acceptance on this ground alone.
5. Furthermore, the other contention of the learned counsel for respondent No.2 is equally unfounded. The empty steel cylinders cannot be considered as bardana within the meaning of item 30 of the schedule. The expression 'bardana' is to be read ejusdem generis with the preceding words and has to be construed as such. It is well settled that in taxing statute the word used are to be understood in the sense in which these words are used in their popular sense and should be understood to have that meanings which every body conversant with the trade business or transaction knows. It was so held by the Supreme Court of Pakistan in Messrs Usman Glass Sheet Factory Limited, Chittagong vs. Sales Tax Officer, Chittagong (PLD 1971 S.C. 205) and Collector of Customs (Appraisement), Karachi and others vs. Messrs Abdul Majeed Khan and others (1977 S.C.M.R. 371). Keeping in view this principle there can be no doubt that the meaning of word "Bardana" cannot be extended so as to include empty steel cylinder. It is also to be remembered that Fiscal Statute which impose taxes have to be strictly construed and doubt, if any, must be resolved in favour of the subject. While construing and interpreting such laws one must look to the words of statute to be construed and interpreted. In Commissioner of Agricultural Income Tax, East Bengal v. B.W.M. Abdur Rahman, Manager, Toki Bara Taraf Wards Estate (1973 S.C.M.R. 445) it has been observed that:- "But indeed, in determining whether or not a particular matter comes within a taxing statute, it is only the letter of the law which must be looked to. There is ample authority for the proposition that in a fiscal case, form is of primary importance, the principle being that if the person sought to be taxed comes within the letter of the law, he must be taxed, however, great a hardship may thereby be involved but on the other had if the Crown cannot bring the subject within the letter of the law he is free, however, apparent it may be that his case is within what might be called the spirit of the law. As was said by Rowlett, J., in Cap Brandy Syndicate v. Inland Revenue Commissioner (1921) 1 KB 64.
"In a Taxing Act one has to look merely at what is clearly said. There is no room for any intendment.
There is no equity about tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used".
Again in case of Collector of Customs (Appraisement), Karachi and Others Versus Messrs Abdul Majeed Khan and others (1977 S.C.M.R. 71) it has been held that:- "Moreover, in interpreting a penal or a taxing statute the Courts must look to the words of the statute and interpret them in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provisions in the statute so as to support assumed deficiency, as held in Messrs Hirjina & Co. (Pakistan) Ltd. Vs. Commissioner of Sales Tax, Central, Karachi."
In Tenant v. Smith (1982 A.C.150) it was held that:- "In a Taxing Act it is impossible, I believe to assume any intention any governing purpose in the Act, to do more than take such tax as the statute imposes... Cases, therefore, under the Taxes Acts always resolve themselves into the question whether or not the words of the Act have reached the alleged subject of Taxation.
In the light of these pronouncements with which I hereby express may respectfully agreement, it is clear that it is not possible to look either to the amending statute of 1951 or to the alleged collection allowance said to be included in the scheme of the case in order to determine whether the words in clause (7) of section 6 provide for an allowance to be made in respect of the amount of cess received by the assessee. That question must be decided solely on a consideration of the very goods of the clause, although in interpreting those words it is permissible to look generally at the rest of the statute, and in particular to consider whether the words in question have been used elsewhere and if so in what sense."
On this ground also the petitioner is liable to succeed.
As a result of what has been stated above, this petition is accepted and the action of the respondent in levying or recovering the export tax on the empty gas cylinders is de cleared to be without lawful authority and without legal effect.
There shall be no order as to costs.