1. MUHAMMAD AKRAM, J.-This judgment will dispose of 34 Civil Appeals Nos. K-23 to K-27 and K-36 to K-64 of 1976 by Special Leave and Civil Petitions for Special Leave to Appeal Nos. K-299 to K-312 of 1976, all filed by the same set of appellants/petitioners and involving common questions of law and facts raised before us at the hearing.
2. It may be stated at the very outset that in the course of this discussion at places reference have been made to the facts in Civil Appeal No. K-24 of 1976 Re: Collector of Customs and others v.
3. Messrs Muhammad Anwar-- Muhammad Iqbal Brothers Limited and others merely as illustrative of the essential facts common to all these cases being disposed of together by the same judgment for the sake of convenience, The respective respondents in each case are registered importers and were granted import licenses of various values by the Controller of Imports and Exports for importing iron and steel items under Sr. No. 128(h) of the Free List (Annex 1) Part A of the Import Policy Order, 1974 for the shipping period commencing from 1st of July, 1974 and ending with the 30th of June, 1975. In course of time they imported black/zinc coated 'steel tubes" from Japan, except in the case of Civil Petition No. K-301 of 1976 in which the country of origin of the commodity is stated to be Kora.
4. On arrival of the consignments by Sea at Karachi the clearing agents of the respective respondents duly delivered their bills of entry together with the bills of lading, invoices and packing lists etc. To the appropriate officer in accordance with section 79(2) of the Customs Act, 1969. On the 21st of December 1974 the Principal Appraiser (Shed) examined the goods in the presence of the representatives of the Appraising Intelligence Branch and endorsed the bill of entry to the effect that the imported goods were "tubes other than pipes". However, on the 22nd of February 1975, the Assistant Collector of Customs called for elaboration of the report from the Principal Appraiser who in reply confirmed that as per departmental practice distinc--petition between pipes and tubes was made by sockets and threads and that according to him the unthreaded and un-socketed were treated as tubes, while those threaded and socketed were treated as pipes by the Department. The Assistant Collector of Customs (Shed) was evidently satisfied with the explana-- petition and endorsed the report by signing it on the 24th of February 1975 in processing the bill of entry. But afterwards, on the 1st of March 1975, the same Assistant Collector of Customs (Shed) contrary to his earlier endorse--ment, made the following note on the bill of entry :- "Tubes and pipes being the same thing, the import of black tubes is prohibited. The consignment is not covered by the produced licence."
5. As a result of this objection the Collector of Customs issued identical notices to the respective respondents in each case to the effect that they have Imported their consignments by declaring the goods to be steel tubes of BSS (British Standard Specification) 1387/67 and have sought release thereof against their respective import licenses issued as per S. No. 128(h) of Part "A" of Annexure I of the Import Policy Order, 1974. But that on scrutiny of the respective documents and examination of the goods it was, found that these did not conform to the specifications laid down for B. S. S. 1387/76 and were black steel/zinc coated pips, which were not importable under the exclusion clause in Serial No. 128(h) and could be imported only through T. C. P. (Trading Corporation of Pakistan Ltd.) as par S. No. 362 (a) of Part "C", of the Import Policy Order. It was further alleged in the notices that rubes were synonymous with the pipes and therefore, the import of black steel/zinc coated pipes or tubes by a commercial importer under Serial No. 128(h) was not in order and the goods imported were not covered by the licence produced. The Collector therefore, issued the notices to these respective importers to show cause as to why they should not be suitably punished under section 156(9) of the Customs Act, 1969 read with section 3(3) of the Import and Exports (Control) Act, 1950.
6. The respondents submitted their respective replies and contended that for the purposes of the entries at Serial No. 128(h) of the Free List (Annex. 1), Part A of the Import Policy Order, 1974 the tubes were not synonymous with but different from pipes and even the Customs Department had been treating the two as different inasmuch as they had in fact already released a number of con3ignments of similar goods imported by several other private importers under the same Serial No. 128(h) against similar licences for the same shipping period.
7. But the Collector of Customs, Karachi was not satisfied with the explanation and observed that on scrutiny of the import documents and as a result of examination of the goods it was found that these were black steel and zinc coated pipes, which were not importable because of the exclusion under serial No. 128(h) of the Free List and could only be imported through the T. C. P. As per serial No. 362 (a) of Part "C" of the Import Policy Order, 1974. He was of the opinion that the tubes were synonymous with pipes, and hence the import of black steel and zinc coated pipes or tubes under Serial No. 428(h) by the commercial importers mere not in order. He emphasised that these goods in question were invoiced and declared as steel tubes of B. S. S. 1387/67 which on physical examination were found to be steel pipes. Even according to the British Standard Specifications the tubes are synonymous to the pipes. Moreover, the Ministry of Commerce and the Chief Controller of Imports and Exports, Islamabad have also clarified that for the purposes of import trade control there was no difference between pipes and tubes and that view was also in conformity with the British Standard Specification 1387/67. The Controller therefore, held that in the face of the clarification by the Ministry of Commerce the import of galvanized or black tubes by private sector was in violation of the Import Policy Order, 1974. In his opinion these goods in dispute were imported by the respondents in contravention of the import trade control regulations. He, therefore, ordered their outright confiscation under sec--petition 1956(9) of the Customs Act, 1969 read with section 3(3) of Import and Export (Control) Act, 1950.
8. We regret to find that on appeals by the respondents from the order, the learned Member, Central Board of Revenue does not appear to have applied his own independent mind, as he was duty bound to do, and disposed of the appeals almost mechanically with the sweeping observations that the points raised have already been dealt with by the Collector in his adjudication order and that his confiscation order was correct in law. He, however, decided to commute the order of absolute confiscation of the imported goods on payments of fine equivalent to the value import licence held by respondents in each case.
9. This gave rise to a number of Constitutional Petitions filed by the respective respondents against the appellants petitioners herein, in the High Court of Sind & Baluchistan at Karachi. One of these, Constitutional Petition No. 755 of 1975 Re : Messrs Abdul Majid Khan v. The Collector of Customs and others was heard and accepted by a Division Bench of the Court consisting of Muhammad Haleem, J. (as he then was) sitting with Jamal-ud-din Ahmad, J. On the 17th of September 1975 (reported in PLD 1976 Kar. 446). This judgment has given rise to the above Civil Appeal No. K-23 of 1976 by leave of this Court Similarly the Constitutional Petitions Nos. 1014, 1015, 1016 and 1019 of 1975 were heard and accepted by another Division Bench of the same Court consisting of Khuda Bakhsh Marri and Abdul Hafeez Memon, JJ by a separate judgment (reported in PLD 1976 Kar. 253). The remaining Constitutional Petitions filed in the High Court were disposed of by short orders passed on them on the basis of these two leading judgments announced by the two Division Benches of the Sind & Baluchistan High Court.
10. PLD 1976 Kar. 446) the Division Bench of the Sind & Baluchistan High Court observed that in the description given at Serial No. 128 (h) of the Free List a distinction is maintained between a pipe and a tube, for what is excluded from import are the G. I. Pipes and black pipes and not the tubes. In support of this conclusion the Court further relied on the fact that the same entry was re-worded in the next Import Trade Control Order bearing No. S. R. O. 722(1)/75 dated 30th June, 1975, A which excluded both the G. I. Pipes and tubes and black pipes and tubes from the Free List for imports by private commercial importers. The Court further observed that the imported goods in dispute were manufactured according to the Japanese Standard Specification and that their description was correctly mentioned in the bill of entry as tubes. Therefore, in the opinion of the Court these could not have been regarded as synonymous with black iron pipes. The High Court also observed that according to the British Standard Specifications 1387 : 1967 a "tube" is synonymous with term "pipe".
11. But in this connection the Court remarked that what was written in the note was not of universal application. It did not apply to the goods manufactured in accordance with the Japanese Specification. The Court also examined Mr. Waqarul Hasan, the Examining Officer, in order to ascertain as to how he had reported the disputed goods to be black iron pipes. He was questioned about his report but he was not aware of any technical distinction between a tube and a pipe. He simply stated that by taking the outside measurement of one of the pipes by a tape he took them to be pipes and not tubes. The Court observed that if that was so then in the case of a tube, the distinctive feature was its outside diameter and the wall thickness. On this view of the matter the goods should have been reported to be tubes and not pipes, but not knowing the distinction the Examining Officer took them to be pipes. In this con--nection the Court further observed that the Department was unable to satisfactorily refute as to how the goods in dispute could be treated as pipes and repelled the plea that the pipes were synonymous with tubes. The Court therefore, accepted the Constitutional Petition before it and quashed the impugned orders passed by the Customs authorities.
12. Similarly in the Constitutional Petitions Nos. 1014, 1015, 1016 and 1019 of 1975 another Division Bench of the Sind & Baluchistan High Court (reported in PLD 1976 Kar. 253) in interpreting the entry at Serial No. 128(h) of the Free List observed that in it pipes and tubes have been separately mentioned and the exclusion was against the import of G. I. Pipes and black pipes only. This would show that the makers of the import Policy were fully conscious of the difference between the tubes and pipes and intended to maintain this difference as, otherwise they would not have in the first place, mentioned pipes and tubes separately in the item of the list and, then would not have excluded the import of G. I/black pipes only in the next line. If it was intended to exclude import of steel tubes also, the makers of the Import Policy could have easily added the word tubes after the word `pipes' for excluding the import. But they did not do so, thus leading to the only conclusion that they regarded tubes as different from pipes and they had excluded import of pipes only and not of the tubes. This was further confirmed by the fact that in the Import Policy of the next shipping period of 1975, import of both, pipes as well as tubes, was expressly excluded from the corresponding serial number of the Free List. In the opinion of the Court no word used in the policy Order issued under the Statute was without significance or could be treated as redundant or surplusage. In this connection the Court observed that the reliance placed by the learned Deputy Attorney General on the footnote appended to the definition of the word `tube' in British Standard Specifica--petition B.
13. S. 1387, 1967 was misconceived. Indeed, he- had to concede that tubes of Japanese Specification were not prohibited. He, however, contended that since according to the British Specification, term `tube' is defined to be synonymous with `pipe', and since the imported goods were of British Specifications, their import was prohibited. But the Court repelled this contention. In its opinion Serial No. 128(h) of the Free List in question did not speak of either the Japanese or British Specifications, nor did it make any distinction on the basis of the two specifications. In it the words were presumed to have been used in their popular sense and should be con--strued as they were understood in their common language, in the absence of any definition clause. The Court, therefore, concluded that the term tube as understood in the common language is different from pipe. The Court also found force in the contention advanced by the learned counsel for the respondents that in practice also the Customs Department had been consistently treating the pipes as different from tubes for a long time and had already released several consignments of similar goods, and that this departmental practice was binding on it and could not be deviated or departed from in the case of the respondents. Indeed before the Court it was not disputed that a number of consignments of similar goods of the same specifications imported by other private importers under the same Serial No. 128(h) for the same shipping period had been released by the Customs Department on the basis of this departmental practice by treating the tubes as different from pipes. The Court, therefore, saw no justification for them to deviate and depart from it when it came to releasing the goods of these parties.
14. Feeling aggrieved the appellants petitioners filed their separate Civil Petitions or Special Leave to Appeal from the judgments of the High Court passed in each of these cases. On the 19th of January 1976 in Civil Petition for Special Leave to Appeal No. K-186 of 1975 Re : Collector of Customs and others v. Messrs Muhammad Anwar-Muhammad 1qbal and there other connected matters, this Court granted the necessary leave to appeal. At the time it was argued in this Curt that the High Court has misread the relevant entries at Serial No. 128(h) of the Free List (Annex. I), Part A of the Import Policy Order, 1974 and the effect of the entries under the third and fourth columns thereof was completely ignored. It was also submitted that paragraph 4 of the Order as well as the Rules for the construction of ambiguities in the relevant entries were ignored. In reply on the other hand learned counsel for the respondents vehemently argued that these submissions were never raised before the High Court and could not be allowed to be advanced for the first time in this Court.
15. Nonetheless, in the opinion of this Court the question raised as to the true construction of the entries at Serial No. 128(h) of the Free List was of considerable general importance. The Court, therefore, granted leave to appeal from the judgment in the case. On similar other petitions by separate orders this Court also granted leave to appeal in the other cases as well. However, some of the other petitions for special leave enumerated in the beginning of this judgment, are still pending for admission and are being disposed off together with these appeals.
16. We have heard the learned counsel for the parties who appeared before us at the hearing at considerable length. In not-shell Mr. M. Afzal Lone Advocate for the appellants/petitioners in all these cases recapitulated all that had prevailed with the Collector in ordering the confiscation of the goods in dispute. He also strongly relied on the counter-affidavit sworn by Muhammad Akmal, Assistant Collector of Customs, Karachi, filed in the High Court in support of the case of the Department. In the affidavit the deponent affirmed that pipes and tubes have been treated as synonymous in Brussels Trade Nomenclature on which Import Trade Control Schedule and the Pakistan Customs Tariff are based and the import policy was in turn issued on the basis of the Import Trade Control Schedule. Even in the Pakistan Standard Specifications P. S. 685 of 1968 also the pipes and tubes are treated as synonymous. In this connection the deponent further affirmed that the goods in dispute imported by the respondents were found to be galvanised iron and black pipes which had been excluded at serial No. 128 h) from the Free List for import by the private commercial impor--ters and were included in the entry at serial No. 362(a) of Part C of the list relating to the goods importable exclusively by the Trading Corporation of Pakistan. It was not denied in the affidavit that the respondents had filed their respective shipping documents, bills of lading and invoice etc. In respect of the goods imported by them. These also included the certificates issued by the manufacturers abroad to the effect that they were black and zinc coated welded steel tubes "BS-1387/67-TE". In short according to the deponent the goods imported had been manufactured in accordance with the British Standard Specifications and on inspection they were found to be so. He admitted that the first report on the bill of entry was made to the effect that the goods in dispute were black steel tubes and zinc coated steel tubes, but that on final examination the Assistant Collector of Customs (Sheds) was of the opinion that the "tubes and pipes being the same thing, the import of black tubes was prohibited". According to the affidavit information was conveyed to the Appraising Intelligence Branch that private importers were importing G. I. And black pipes under false declaration that they were tubes only and selling them in the market at very high prices as pipes and that there was a racket going on in this respect.
(i) In the context the words "pipes and tubes" are not used in any technical sense and must be construed in their popular sense and parlance and indeed have been so understood by all those dealing in the commerce, trade and industry since 1951, when soon after the Imports and Exports (Control) Act, 1950, came into force and the first import policy framed by the Government, was introduced under it. Ever since the tubes and the pipes were constantly treated as two separate commodities and not synonymously.
(ii) He did not deny that the rules of interpretation laid down in the Import Trade Control Schedule II to the Import Trade Control Order are applicable read with the general and accepted rules of interpretation of statutes. So construed no words in the context must be construed as redundant and mere surplusage.
(iii) In any case the exclusion clause in the context of Serial No. 128(h) of the Free List is in the nature of an exemption only in favour of the Trading Corporation of Pakistan Limited and must be construed strictly. In this connection the express inclusion of pipes and tubes in the main operative part of the entry and the omission of the tubes from the exclusion clause was significant and deliberate. As such it was not at all a case of any accidental omission only.
(iv) In so far as in this case the main statute in force was based on the Brussels Convention which in turn is a multi-national convention, the interpretation not in one or the other country, bur the concensus of large number of them has to be evolved and borne in mind in the interpretation bf such laws.
(v) If at all two interpretations are possible in the circumstances of this case, then the benefit of it a ill accrue to the importer and the one favourable to him should be accepted.
(vi) The appellants having already released similar goods under similar circumstances under the same import Policy Order were not justified in discriminating, against the respondents in confiscating their goods without any distinction.
17. The other learned counsel who appeared before us at the hearing for the remaining respondents adopted these contentions advanced by Mr. Pirzada and also supplemented them with the facts in their respective cases.
18. On 8-7-1974, in exercise of the powers conferred by section 3(1) of the Imports and Exports (Control) Act, 1950 the Federal Government made the Import Policy Order, 1974 to remain in force until 30-6-1975. Under it items permissible for import were included in two lists. Items included in the "Free List" are shown in Annexure I, Parts A, B and C and are import--able against cash from world-wide sources or under loan, credits or barter from the respective sources. The items included in the "Tied List" are separately shown in Annexure II and are importable exclusively from tied sources. Para. 4 of this Order lays down that no imports under it shall be made except on the authority of import licence issued by the licensing authority. The licences will be issued for goods under the description as wall as the corresponding Import Trade Schedule numbers as shown in columns 2 and 3 of Annexures I and II. Import of items falling under the relevant I. T. O. Schedule number but not conforming to the corresponding description and vice versa shall not be permissible. It is further laid down in this para. That a licence issued for a generic item shall not be valid for and specific item which had been excluded in the Order. Para. 9 of the Order provides that the items specified in Part C-I of Annexure I shall be importable exclusively through the Trading Corporation of Pakistan Limited and the importers of these items shall place their orders on the said Corporation.
19. As already stated above the respective respondents in each of these cases were granted the licences for the import of iron and steel items under Serial No. 128(h) of the Free List (Annexure I), Part A, in accordance with the Import Policy Order, 1974 for the shipping period July 1974 to 30th June 1975. For the sake of ready reference the entries against this serial number are reproduced hereunder in extenso: Sr. No.DescriptionI. T. C. Schedule No 123 128(h).Iron and steel pipes and tubes and73-18-II, III-2, fittings thereof excluding G. I.73-20-IV, 83-08-IV. pipes and Black Pipes.
20. It is amply clear from the opening line in the entries in column (2) that the imports of iron and steel pipes as well as the tubes was permitted and that the exclusion or prohibition against such imports was confined to the G. I. Pipes and Black Pipes only. In the context the inclusion of the "tubes" in the first part and the omission of their mention in the exclusion clause of this entry was significant.
21. From a reading of this entry as a whole the conclusion seems to be irresistible that the pipes and the tubes are two separate items meant for import and that the two were not synonymous. The omission of the tubes from the exclusion clause in this entry was not merely accidental as the learned counsel for the appellants/petitioners would have us believe. His contention advanced in this behalf cannot be accepted without doing serious violence to language of this entry and its plain meanings.
22. We are further fortified in this conclusion on reference to the entries precisely corresponding to this exclusion clause found at serial No. 362(a), Part C-I of the Free List. Under this corresponding entry "G. I. Pipes and Black Pipes" were importable by the Trading Corporation of Pakistan Ltd. In accordance with Para. 9 of the Import Policy Order 1974 as already dis--cussed above. By no stretch of imagination the scope of this entry could be extended so as to also include within it the import of the G. I. And black tubes as well, as a monopoly created in favour of the said Corporation.
23. This interpretation is in harmony with both the items at Serial Nos. 128(h) Part A and 362(a), Part C-I of the Free List.
24. As already stated above in accordance with para. 4(2) of the Import Policy Order, 1974 the licences are issued for the goods under the description as well as the corresponding Import Trade Schedule numbers shown in Columns 2 and 3 of Annexure I (Free List). This only means that the entries in column (2) of the serial No. 128(h) of the Free List must be read in conjunction with Serial No. 73-I, II, III, 2, 73-20, IV and 83-08 IV of the Import Trade Control Schedule II to the Import Trade Control Order, as laid down in column 3 of Serial No. 128 (h) of the Free List. Now item 73-18-II of the said Schedule relates to "Tubes and Pipes and blanks thereof, of iron (other than of cast iron) or steel, exclusion/high pleasure hydro--electric circuits : Seamless tubes and pipes", and similarly item III-2 under the same head relates to the kind other than those used in the machinery. Serial No. 73-20 IV of the Schedule relates to the "tubes and pipe fittings (for example, joints, elbows, unions and flanges) of iron or steel "other than those of cast iron, chromium plated for sanitary use and of a kind used in machinery. Similarly the serial No. 83-08 IV of the Schedule relates to "flexible tubing and piping of base metal", other than tubing for sanitary fittings, of a kind used in automotive vehicles and machinery. Now all these relevant entries in the Schedule read together got point in the same direction that the tubes are not synonymous with the pipes and that the two are distinct and separate items meant for import in accordance wish the Free List and the Schedule on the basis of the licences issued to the respondents. Throughout in the relevant serial numbers in the Free List and the Schedule the term "tubes and pipes" have been used in conjunction with each other and not the alternative.
25. The I. T. C. Schedule II is the Import Trade Control Order is based on the Brussels Trade Nomenclature. The principles for the interpretation of the Schedule are also laid down therein. It lays down that for legal purposes, classification shall be determined according to the terms of the headings and any relative section, or chapter note. When for any reason, goods, are prima facie, classifiable under two or more headings, the one which provides most specific description shall be accepted. Goods not failing within a heading of the Nomenclature shall be classified under the heading appropriate to the foods to which they are most suited. But none of these and the other principles of interpretation of the Schedule is attracted to the facts and circumstances of this case.
26. There is no dispute about the classification of these goods and consequently these rules are not helpful in interpretation of the terms pipes and tubes in the context of the above serial numbers of the Free List and the I. T. C. Schedule.
27. PLD 1968 SC 37) that the general principle for interpretation of statutes should be followed and no words used therein shall be treated as surplusage and redundant. Similarly in J. K. Cotton Spinning Weaving Milts Ltd. v. State of Utter Pradesh and others (AIR1961SC1170) the Supreme Court of India observed that in the interpretation of statutes the Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative inten--petition is that every part of the statute shall have effect, and that these presump--tions will have to be made in the case of rule- making authority also.
28. Under the Import Policy Order, 1972, iron and steel "pipes and tubes" and fittings thereof were originally included at Serial No. 133(viii) in the Free List (Annex. I). But by notification S. R. O. 983(1)/72 dated 25th October 972 the Order was amended and the import of G. I. "pipes" was allowed from tied sources only. These entries amply high-light the distinction all long recognised by the policy- makers between the pipes and the tubes.
29. Under the Import Policy Order, 1973 and the Import Policy Order, 1974 iron and steel pipes and tubes and fittings thereof excluding G. I. Pipes and lack pipes were placed at Serial Nos. 143(h) and 128(h) respectively of the Free List (Annex. I). In this connection for the first time, a departure was made and a significant change was introduced at Serial No. 129(h) of the Free List under the Import Policy Order, 1975 and G. I. Pipes and "tubes" and black pipes and "tubes" were expressly excluded from the entry and thereby the scope of the exclusion clause was enlarged so as to exclude the import of the pipes as well as the tubes for the first time under this Order.
30. A look at these successive Import Policies is sufficient to arrive at the conclusion that the Central Government has in the past all along consistently girded the pipes and tubes as distinct and separate commodities and never or once even treated the two as synonymous. A fortiori it cannot be held fiat the omission of the mention of tubes in the exclusion clause in the entry at Serial No. 128(h) in question from the Free List, Part A (Annexure I) of the Import Policy Order, 1974 was inadvertent only and not deliberate.
31. According to the Oxford English Dictionary "tube" means a hollow body, usually cylinderical and long in proportion to its diameter, of wood, metal, lass, or other material, used to convey or contain a liquid or fluid, or for other purposes; a pipe. It is "a more recent and a more generic term than I pipe, in which the form of the thing is chiefly considered and thus used in reference to many things to which pipe is not applied, pipe being an older term retained for tubes used for passage of liquids, smoke, air, or gas, while tube is applied to most recent invention; but the distinction is often arbitrarily depending on the custom of the workshop". From this definition it follows that strictly speaking the term "tube" is not synonymous with but distinct from "pipe". Tube is a more recent and a more generic term than a pipe and is used in reference to many things to which pipe is not applied. It is applied to most recent inventions. It cannot, therefore, be legitimately urged that there is no distinction between the two, although at tilde this distinction may be thin and may even tend to vanish. Yet strictly speaking the two are not synonymous.
32. We find that this distinction is noticeable and actually prevails in the engi--neering, commerce, trade and industry as well. In Van Nostrand's Scientific "Encyclopedia, published in Princeton, New Jersey, Fourth Edition at page 1355 'Pipe has been defined categorically as the physical enclosure of a fluid flow, usually circular in cross section. It its made of steel, wrought iron, cast iron, copper, brass, lead, concrete, cement-asbestos, etc. Etc. Commercial sizes available, as well as individual physical properties and characteristics, determine the uses and limitations of the various materials used in the manufacture of the pipes. In general pipe of carbon or alloy steel in sizes from the smallest to the largest is used exclusively where high pressure or high temperature, or both, are encountered. It is further mentioned that pipe size is commonly designated in terms of either inside
(ID) or outside (OD) diameter. On page 1894 the learned author has defined "tube" to mean in general engineering usage, a hollow cylindrical body having a length much greater than its diameter. Generally, the tube is used to conduct a fluid, though it may also be used as a container or structural member. Tubes are made of many and varied materials; in fact, almost anything that may be worked into tubular shape has a use somewhere as tube, steel, iron, copper, brass, glass, cardboard. It is further observed that a steel tube is differentiated from a steel pipe by the seamless character and by the nominal size. The tube is sized by its external diameter, the pipe by its nominal internal diameter.
33. According to Chamber's Encyclopedia published by the International Learning Systems Corporation Limited, London, on page 813, it is stated that : "the distinction between a tube and a pipe is that conventionally the tube is specified by its outside diameter and its thickness, whereas the pipe is specified by its bore and thickness. There are however exceptions." On page 815, the learned author observed that in dealing with their applications the metal pipes and tubes are used for two main purposes, (1) for conveying gases, fluids, and solids, and (2) as structural members; and the material from which they are made depends upon the purpose for which they are employed and the cast. Steel tubes ranging from a few thousandths of an inch to several feet in diameter are used for purposes varying from hypodermic needles to boiler drums and water pipes, and tremendous tonnages are produced annually for conveying gas, oil, sewage, steam, chemicals, and beverages. As structural members, steel tubes have innumerable uses.
34. Appreciable quantities of water mains are made of cast iron. Copper and brass tubing is used for the conveyance of liquids. On account of their lightness, aluminium and aluminium alloy tubes find extensive use as structural members, especially in vehicles (including aircraft), as well as in conveying fluids.
35. According to the "Design Engineers Handbook" by Parker Hannijin the term pipe is defined as a line whose outside diameter is stand--ardised for threading. Pipe is available in standard, extra strong, double extra strong or schedule wall thick-nesses. Tube is available in varied wall thick-nesses. It is stated that the major advantages of tube are the bending quality, greater strength of weight, economy of space, flexibility, Sewer fittings, Lighter joints, lower pressure drop, better appearance, cleaner fabrica--petition, easier assembly, disassembly, and less maintenance.
36. According to T. B. Jeferson in this Introduction to Mechanical Design, at page 92, tubular products may be made of carbon and alloy steels in many different compositions for specific use. Pipe sizes are designed by nominal inside diameters in inches Standard dimensions for inside diameter and wall thickness have been adopted by the manufacturers and users of pipe (Table 3-6). Tubing, on the other hand, is usually based on the outside diamter and wall thickness (Table 3-7).
37. As already stated, from the above discussion it follows that in the ordinary parlance, engineering, industry, trade and commerce the pipes and tubes are considered as distinct and separate commodities having regard to their different characteristics to the uses for which they are manufactured.
38. The goods in dispute in all these cases, except for one solitary exception were imported from Japan. In this connection our attention was drawn to the Japanese Industrial Standards given in the "J. I. S." Hand Book, 1974 Feroous Materials Metallurgy, complied by the Japanese Standard Association. It shows from pages 603 to 759 that in Japan a separate industrial standard as prescribed in the manufacture of Seamless tubes for High Pressure Gaz Cylinder, Seamless Alloy Steel Tubes for structure Purposes, Carbon Steel Tubes for General purposes, Carbon Steel Tubes for Machine Structural Pur--poses, Stainless Steel Tubes for Structure Purpose, Stainless Steel, Sanitary Tubings, Carbon Steel Boilers and Heat Exchange Tubes, Ally Steel Boiler and Heat Exchange Tubes, Stainless Steel Boiler and Heat Exchanger Tubes, to distinguish them from Galvanished Steel Pipe for water Service, Casting Steel Pipes for Water Service, Carbon Steel for Ordinary Piping, Carbon Steel Pipe for Pressure Service, Carbon Steel Pipe for High Pressure Service etc. Etc. These items have their own Japanese Industrial Standards. Each has its own manufacturing method, chemical composition and mechanical Properties with special reference to the precise uses for which they are manufactured. From this no doubt is left in one's mind that in the country of origin the tubes and pipes are regarded as separate commodities.
39. During the course of the hearing it was brought to our notice that while most of the respondents had declared that the goods imported by them were iron and steel tubes of the British Standard Specification, B. S. S. 1387, 1967, only some of them had declared that the goods were of the Japanese Indus--trial Standard JIS G-3444. According to the JIS Hand Book 1974 the imported goods were "Carbon Steel Tubes for General Structural Purposes" and by no stretch of imagination in the case of these few, the goods could have been dubbed as pipes at the hands of the Customs authorities to penalize their importers.
40. Before us the learned counsel for the appellants/petitioners has tried hard to make a most of the fact that most of the respondents had declared that the imported goods in question were of the British Standard Specification (B. S. S.) 1387:1967 and that according to this Standard the term tube is synonymous with the term pipe.
41. Making use of this "Note" to the definition of the term tube the Collector Customs jumped to the conclusion that the Iron and Steel Tubes allegedly imported by the respondents were synonymous with the pipes, the import of which was prohibited under the exclusion clause in Serial No. 128 (h) of the Free List (Annex. I) to the Import Policy Order, 1974. This argu--ment on the face of it was perverse and fallacious because even according to BS 1387:1967 the true description of the commodity is given as "Steel Tubes and Tubulars". They are commonly known by this name in the industry commerce and trade. This is the primary and popular name assigned to them even under the British Standard Specification itself. It was therefore, not open to the authorities to arrive at the conclusion that they were pipes (and not tubes) with a view to confiscating them. Indeed there was no room for the application of the process of the binomial theorem that simply because for the purposes of the British Standard the term "tube" is synony--mous with the term pipe, the tubes imported by the respective respondents had lost their primary and distinctive character as tubes and were therefore, liable to confiscation. There is no finding recorded by any of the authorities to the effect that on examination of the consignments respectively imported by the respondents that the goods did not in fact correspond to their description in JIS-G 3444 or BS 1387:1967 Specifications according as their case may be and were in fact imported under the pseudonym of tubes.
42. Before the High Court as also in this Court before us on behalf of the appellants/petitioners reliance was also placed on a copy of the letter No. 35(3)/75-Imp. II dated 8th April 1975 from the Ministry of Commerce, Islamabad to the effect that for the purposes of the Import Policy there was no difference between pipes and tubes and that the import of G.I. Pipes and Black Pipes as well as G. I.
43. Tubes and Black Tubes by the private sector was not permissible. But this opinion was expressed after the dispute had already arisen and is not borne out on a true interpretation of the law as discussed above. Therefore, no importance can be attached to this departmental interpretation placed on Serial No. 128 (h) of the Free List of the Import Policy Order as an afterthought only.
44. Indeed prior to this a large number of similar consignments under the same policy order for the same shipping period were released by the Department without any objection and their impugned action against the respondents was discriminatory.
45. "The object of the duty laws is to raise revenue, and for this purpose to class substances according to the general usage and known determina--tions of trade. Whether a particular article were designated by one name or another, in the country of its origin, or whether it were a simple or mixed substance, was of no importance in the view of the Legislature. It did not suppose our merchants to be naturalists of geologists, or botanists. It applied its attention to the description of articles as they derived their appellations in our own markets, in our domestic as well as our foreign traffic. And it would have been as dangerous as useless, to attempt any other classification titan that derived from the actual business of human life."
46. As already discussed above the pipes as well as the tubes are manufactured in accordance with their separate specifications having regard to their various uses and are purchased and sold in the market a distinct and separate commodities.
47. Even otherwise in Serial No. 128(h) of the Free List, the exclusion clause is in the nature of an exception made in favour of the Trading Corporation of Pakistan and must be strictly construed.
48. 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. v. Commissioner of Sales Tax, Central, Karachi (1971 SCMR 128). Last but not the least it is also well established that penal provisions of a statute should be strictly construed and in case of any ambiguity or doubt arising from the construc--petition, the benefit must go to the accused person Muhammad A.I v. State Bank of Pakistan Karachi(1973 SCMR 140).
49. As a result of the above discussion: we agree with the High Court in holding that the impugned orders for the confiscation of the goods in question; imported by the respective respondents were not passed in accordance with law and were without lawful authority. Therefore, these appeals and the petitions have no force and are dismissed with costs.