The only question, falling for determination in this Constitutional petition, is whether the expression "desiccated coconut" is synonymous with word "copra" embodied in a heading 12.01 in Chapter 12 of Pakistan Customs Tariff, 1974 (briefly described as PCT) and so imported consignment was liable to duty under the aforesaid heading of PCT.
2. The facts, briefly stated, giving rise to this petition are: that vide import licence issued on 4-9- 1974, the Chief Controller of Import and Export permitted M/s. S.M. Sharif Farooq Habib-ur- Rehman/registered partnership/petitioner, to import copra/coconut/kernel from Ceylon. This good was on free list and classifiable under Item No.65 in Import Policy Order, 1974. The said Order had been promulgated on 8th July, 1974. Under this licence, petitioner opened a Letter of Credit, imported desiccated/fully dried coconut from the Ceylon, received the consignment and submitted the bill of entry alongwith all necessary documents on 9-1-1975. The bill of entry described the consignment, so received, in following words:--- "Coconut desiccated, white, full dried, first quality for human consumption. "
The Deputy Collector Customs, pursuant to the bill of entry, issued show-cause notice to petitioner/contending therein that the petitioner-firm had violated the term of licence dated 4-9- 1974 and instead of importing "copra", it had imported desiccated coconut which was a prohibited item and so petitioner was fined to the extent of Rs.5,000 and consignment was subjected to duty under heading 08.01 in Chapter 8 of the PCT.
3. Feeling aggrieved, the petitioner preferred an appeal and a revision but in vain. The order of the Deputy Collector was upheld by the Appellate Authority as well as the Central Board of Revenue.
However, the afore-stated authorities reduced the fine from 5,000 rupees to 2,500 rupees. This is how this Constitutional petition has come to this Court.
4. The learned counsel for the petitioner strongly relied upon, item No.65 of Import Policy Order, 1974, to contend that the petitioner had imported copra under the licence issued by the Chief Controller of Imports and Exports; that the consignment, so received, was on the free list and fell within the term of Item No.65 of the Import Policy Order. On the strength of this point, it was canvassed that the learned Customs Authorities were clearly in error in applying heading 08.01 of Chapter 8 of PCT while calculating its duty. Reliance was placed on Muhammad Idris v. Collector of Customs PLD 1971 Kar. 911. On the contrary, the learned counsel for the respondents contended that "desiccated coconut" imported vide Invoice and Bill of Entry, was not Copra, and petitioner, who had violated the term of the licence, and instead of importing copra, it had imported 'desiccated coconut' which was subject to duty under heading 08.01 of Chapter 8. Reliance was placed upon the decision of Central Board of Revenue dated 28-1-1984 occurring at page No.316 in compilation of Customs General circulars from 1971-1992 (Second Edition) by Tariq Najib Chaudhary, Advocate end Consultant Tariq Najib Corporation, Lahore.
5. I have heard the learn counsel for the parties at a considerable length, perused the record and attended to their rival contentions with great care. As already noted the only question calling for consideration is whether desiccated coconut imported, vide Letter of Credit, Invoice and Bill of Entry filed by the petitioner, is synonymous with "copra" embodied in heading 12.01 of PCT.
6. Stage is now set to examine in some depth the meaning of expression "desiccated coconut" and "copra". These two expressions are key to resolution of controversy. The coconut is a fruit which is produced by coconut palm. This tree belongs to species known as Cocos/Copra and nucifera.
Nature of this tree and its products are masterly described by The New Encyclopeadia Britannica (Vo1.3) Micropedia published by Peter B. Norton President & Chief Executive Officer, Joseph J, Esposito, Chicago. Relevant statement is as follows:--- "Coconut palm (species Cocos nucifera), tree of the palm family (Arecaceae). It is one of the most important crops of the tropics. The slender, leaning ringed trunk of the tree rises to a height of up to 25 m (80 feet) from a swollen base and is surmounted by a graceful crown of giant, featherlike leaves. Mature fruits, ovoid or ellipsoid in shape, 300-450 mm (12-18 inches) in length, and 150-200 mm in diameter, have a thick, fibrous husk surrounding the familiar single-seeded not of commerce. A hard shell encloses the insignificance embryo with its abundant endosperm, composed of both meat and liquid.
Coconut fruit float readily and have been dispersed widely by ocean currents and by humans throughout the tropics; they probably originated somewhere in Indo-Malaya. Marco Polo was among the first Europeans to describe coconuts.
Coconut palms flourishes best close to the sea on low-lying areas a few feet above high water where there is circulating ground water and an ample rainfall. Most of the words coconuts are produce on small native plantations. Propagation is by unhusked ripe nuts. These are laid on their sides close together in nursery beds and almost covered with soil. After 4 to 10 months the seedlings are transplanted to the field, where they are spaced at distance of 8-10 meters. Palms usually start bearing after 5 to 6 years. Full bearing is obtained in 15 years. Fruit required a year to ripen; the annual yield per tree may reach 100, but 50 is considered good. Yields continue profitably until trees are about 50 years old.
The harvested coconut yields copra (q.v.) the dried extracted kernel, or meat, from which coconut oil, the world's ranking vegetable oil, is expressed. The Philippines and Indonesia lead in copra, production, and throughout the South Pacific Copra is one of the most important export products.
Although the coconut finds its greatest commercial utilization in the industrial countries of the 'Western world, its usefulness in its native areas of culture is even greater. Indonesians claim that coconuts have as many uses as there are days in a year. Besides the edible kernels and the drink obtained from green nuts, the husk yields coir (q.v.), a, fibre highly resistant to sold water and used in the manufactures of ropes, mats, baskets, brushes and brooms. '
Other useful products derived from the coconut palm include toddy, palm cabbage, and construction material. Toddy, a beverage drunk fresh, fermented, or distilled, is produced from the sweetish sap yielded by the young flower stalk when wounded or cut; toddy is also a source of sugar and alcohol Palm Cabbage, the delicate young bud cut from the top of the tree, is like the buds from other palms, eaten as a salad vegetable. Mature palm leaves are used in thatching and weaving baskets. The fibrous decay-resistant tree trunk is incorporated into the construction of huts, it is also exported as a cabinet wood called porcupine wood."
7. From the above it becomes quite clear that 'coconut' is a fruit which is grown on Coconut Palm. It has three parts, namely; a thick fibrous husk, secondly, strong shell; the meat/endosperm which is contained in the shell. The first part is used for manufacturing fibre known as coir. The second part, having a shell, is used as cups and so many other things. The third part is used for multifarious commercial purposes. When the fruit is unripe, the third part provides nutritious drink and when it becomes ripe it yields 'copra'; from it coconut oil is extracted. In short Coconut Palm is highly useful tree and serves human being with its multiple products. "Copra" is its derivative from which Coco- oil is manufactured on commercial scale. Coconut are seeds for daily human consumption. These uses of coconut palm products were kept in view while classifying them in different heads in P.C.T.
A bare look of heading 08.01 shows the word 'fresh' has been used therein and this heading says that the word "fresh" is to be extended to goods which has been freezed. Heading 12.01 shows that ground-nuts, soya beans, mustered seed, oil poppy seeds and copra had been classified over there It also excludes the goods mentioned in heading 08.01. The above study of the two headings clearly indicates that the things/goods, which we M6" daily humar consumption were put in Chapter 8 and such goods were not put on free list, while the seeds which were/are of commercial significance, were put in Chapter 12 of PCT. They were on free-list. The object of this differential classification was to import only those items from foreign countries which could be used to widen export base and earn maximum foreign exchange. On the above analysis I have no difficulty in coming to the conclusion that the words "Copra and desiccated Coconut" apply to different goods when these are imported. The next question whether desiccated coconut can be equated with 'copra' I am afraid the answer is no. Copra, as already noted, is a commercial derivative of coconut.
It cannot be confounded with desiccated coconut which is not used for commercial purposes.
8. Having held that desiccated coconut is different from ' copra' I am tempted to examine the effect of departmental construction of words 'desiccated coconut and Copra' for the purpose of application of heading 08.01 and 12.01. Dealing with the legal efficaciousness of departmental construction, the Supreme Court of Pakistan in Nazir Ahmad v. Pakistan PLD 1970 SC 453 his lordship Mr. Justice Sajjad Ahmad (as he then was) speaking for the Bench, said: "The departmental practice has followed the right course in the implementation of the relevant rule but whether right or wrong, it will be extremely unfair to make a departure from it now after a lapse of so many years and to disturb rights that have been. Settled by a long and consist course by this practice. In the case of the appellant, the seniority initially accorded to him has held the ground continuously for ten long years until -it was disturbed by the impugned order. This, to say the least, is bound to weaken the faith of the employees in the attitude and behaviour of the department. A passage from Crawford's Statutory Construction (1940 Edition at page 399) may be usefully reproduced to point out the effect of 'department construction', that is to say, the construction which is placed in practice on the provisions of a statute or rules by the administrative authorities who are charged with the execution of the statute or the rules. The learned author observes: 'Where the executive construction has been followed for a long time an element of estoppel seems to be involved. Naturally many rights will grow up in reliance upon the interpretation placed upon a statute by those, whose duty it is to execute it. Often grave injustices would result should the Courts reject the construction adopted by the executive authorities'. "
The rule enunciated therein was reiterated by a Division Bench of Sindh High Court in M/s. Dada Soap Factory Ltd. v. Pakistan PLD 1984 Kar. 302. His Lordship Mr. Justice Ajmal Mian (as he then was, and now a Judge of the Supreme Court) examined this question with masterly analysis and quoted paragraphs Nos. 219 and 221 from Statutory Construction Interpretation of Law by Crawford, 1940 Edn. I am also tempted to quote afore-stated paragraphs:--- "219. Executive construction.---As a general rule executive and administrative officers will be called upon to interpret certain statutes long before the Courts may have an occasion to construe them.
Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative of official will not be binding upon the Court. Yet where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative officers, who are charged with executing the statute, and especially if such construction has been observed and acted upon for a long period of time, and generally or uniformly acquiesced in, it will not be in, it will not be disregarded by the Courts, except for the most satisfactory, cogent or impelling reasons. In other words, the administrative construction generally should be clearly wrong before it is overturned. Such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight. It is highly persuasive.
And where vested rights have grown up under the departmental construction, the Courts are justified in being more reluctant that in ordinary cases in adopting a construction which will destroy or disturb such rights. A similar reluctancy is also proper where a departure from the executive interpretation will result in injustice, or where contracts have been entered into with the Government in reliance on the departmental construction.
Undoubtedly, the contemporaneous, construction of executive and administrative officers, that is, the construction placed by such officers on a statute at the time of or soon after its enactment-- even though it is entitled to some weight should not receive as much as where the departmental construction has been followed for a long time. And in either case, if the Legislature impliedly approves the construction of an administrative or executive officer by later legislation, or fails to indicate its disapproval of such a construction when the same statute or one.
"221. Construction by the executive department analyzed.---Of course, the construction placed upon a law by the executive department is not the law of the statute but only evidence of what the law is. It is simply an aid to which the Courts may resort in their efforts to ascertain the legislative intent. It may be set forth as an argument or a reason for the acceptance of a certain construction, for where the executive places a certain interpretation upon a law, that fact would seem to indicate that the interpretation represents the legislative will. At least, the interpretation given the statute by the executive officer would seem to be the obvious one and therefore the one actually intended by the law-makers. But to give the construction placed upon a law the power to control the Court in its interpretation thereof; would clearly vest legislative, if not judicial power, in the executive department.
As we have already pointed out, where the executive construction has been followed for a long time, an element of estoppel seems to be involved. Naturally many rights will grow up in reliance upon the interpretation placed upon a statute by those whose duty it is to execute it. Often grave injustices will result should the Courts reject the construction adopted by the executive department. But actually; in many cases of this type, that is, in those where the executive construction does not actually give the legislative intent effect, the officials who administer the law exercise legislative or judicial power, or both. Practical considerations and considerations of justice, however, seem of more importance in these instances than a strict adherence to the tripartite theory of Government."
9. Applying these principles to the facts and circumstances of this case now it is clear to me that the 'desiccated coconut' is different from 'copra'; that vide decision dated 8-7-1974 the Central Board of Revenue had correctly decided that the product known as 'copra' was subject to duty under the heading 12.01 of Chapter 12 of PCT and that 'desiccated coconut' was subject to duty under the heading of 08.01 of Chapter 8 of PCT; that this decision of the Central Board of Revenue is eminently correct, just and strictly in line with the tenor of the above two mentioned headings of PCT. In view of the above, contentions of the learned counsel for the petitioner sink, into total ineffectiveness and are accordingly repelled.
10. In result, this petition is found to be wholly devoid of any merit and is accordingly dismissed.
Since the questions raised in this petition were purely questions of law I am not persuaded to burden the petitioner with costs.