' MUHAMMAD YUNUS SURAKHVI, J.---This appeal by way of leave of the Court, has been directed against the judgment passed by the High Court on 25-3-2000, whereby the writ petition filed by the appellant herein was dismissed in limine.
2. The necessary facts, giving rise to the present appeal, are that the appellant is a Public Limited Company and is engaged in manufacturing and production of polypropylene bags in Industrial Estate Mirpur. The case of appellant is that the production of bags is achieved through a process wherein polypropylene granules or chips, the basic imported raw material, are extruded in a continuous process resulting in polypropylene sheets which are then cut into strips. These strips after going through further mechanical process are reduced to approximately 5 mm to weave polypropylene bags through manufacturing unit. According to the appellant the strips are not sold in the open market nor they are taken out of the manufacturing unit for marketing, hence they are not goods to be excisable under the Excise Duty Act. The grievance of the appellant is that Notification No,710(1)/94, dated 13th July, 1994 and order of Central Board of Revenue and then notices issued on the basis thereof are ultra vires the Constitution and law.
3. Ch. Muhammad Afzal, the learned counsel for the appellant, has contended that these strips are neither vendible nor qualify as goods and nor serveable at any stage, except that these terminate in the manufacture of final goods, i.e, the bags/sacks. It is contended that strips which have been subjected to excise duty are not excisable and do not fall in heading 54.04, Chapter 54 of the First Schedule of the Excise Act, hence are not excisable. The learned counsel contended that the case of appellant falls under Headnote 39.02 subhead 3902.1000. The learned counsel also contended that if two interpretations are possible from the provisions of a certain statute, then the interpretation favourable to the citizens is to be preferred. In support of his contentions the learned counsel relied on Commissioner of Income-tax (Central) Karachi v. Messrs Fakir Cotton Ginning and Pressing Industries Limited, Gambat and another 1991 PTD 573 and Commissioner of Sales Tax v. Crescent Pak Soap and Oil Mills Ltd. 1986 PTD 238.
' In Commissioner of Income-tax (Central) Karachi v. Messrs Fakir Cotton Ginning and Pressing Industries Limited Garribat and another 1991 PTD 573 it was observed that Court while interpreting taxing statute must look to the words of the statute and interpret it in the light of what is clearly expressed. The Court cannot imply anything which is not expressed, it cannot import provisions in the statute so as to support assumed deficiency.
' In Commissioner of Sales Tax v. Crescent Pak Soap and Oil Mills Ltd. 1986 PTD 238 it was observed that the fiscal statute is to be construed strictly and not liberally. It was also observed that no liability could be imposed on citizens unless it was clearly spelt out from the statute.
' The learned counsel while referring to section 35 of the Central Excise Act of 1944 contended that this provision of law simply lays down the procedure for filing appeals before different forums against the order passed under the Excise Act. The learned counsel also contended that the remedy of appeal being not efficacious and adequate, there was no bar for filing a writ petition against the impugned order passed by the Central Board of Revenue. The learned counsel also contended that the interpretation made by the Central Board of Revenue is not binding on the Courts of law. In this regard he referred to a case reported as Messrs Central Insurance Company and others v. The Central Board of Revenue, Islamabad and others 1993 SCMR 1232, wherein it was observed at page 1259 of the report as follows:-- "It is evident from the above provisions that though the Central Board of Revenue has administrative control over the functionaries discharging their functions under the Ordinance, but it does not figure in the hierarchy of the forums provided for adjudication of assessee's liability as to the tax. In this view of the matter, any interpretation placed by the Central Board of Revenue, on a statutory provision cannot be treated as a pronouncement by a forum competent to adjudicate upon such a question judicially or quasi-judicially. We may point out that the Central Board of Revenue cannot issue any administrative direction of the nature which may interfere with the judicial or quasi-judicial functions entrusted to the various functionaries under a statute. The instructions and directions of the Central Board of Revenue are binding on the functionaries discharging their functions under the Ordinance in view of section 8 so long as they are confined to the administrative matters. The interpretation of any provision of the Ordinance can be rendered judicially by the hierarchy of the forums provided for under the above provisions of the Ordinance, namely, the Income-tax Officer, Appellate Assistant Commissioner, Appellate Tribunal, the High Court and this Court and not by the Central Board of Revenue. In this view of the miter, the interpretation placed by the Central Board of Revenue on the relevant provisions of the Ordinance in the Circular, can be treated as administrative interpretation and not judicial interpretation."
' In another case title Messrs Kohinoor Raiwind Mills Ltd. And another v. Central Board of Revenue and others 2000 PTD 3351 it was observed as under:-- "Although under section 3-A of the Income Tax Ordinance, 1979 the Central Board of Revenue has the power to administer the law but it certainly has no jurisdiction, power or authority to issue a Circular in respect of a contentious issue, it would tantamount to whittling down the discretion vesting in the adjudicating officer and authorities under the Income Tax Ordinance."
' It was further observed that any Circular issued by C.B.R. Taking away completely the power of adjudicating officer to decide as to whether or not the exemption claimed was valid is void and of no legal effect. Although under section 3-A of the Income Tax Ordinance, 1979 the Central Board of Revenue has the power to administer the law but it certainly has no jurisdiction, power or authority to issue a circular in respect of a contentious issue which would tantamount to whittling down the discretion vesting in the adjudicating officers and authorities under the Income Tax Ordinance.
' On the strength of the aforesaid contentions the learned counsel for the appellant vehemently urged that the order under appeal being violative of law may be set aside.
5. In reply Mr. Umar Mehmood Kasuri, the learned Counsel for respondents, contended that the strips are capable of being sold, hence are liable to excise duty irrespective of the fact whether they are end products or not and as to whether they are sold or not. The learned counsel also contended that the' strips fall in the First Schedule under Heading 54.04 and the classification made by the department is unexceptionable. It is further contended that polypropylene strips are capable of being sold, therefore, the mere fact that they are not end products is not enough to save them from the excise duty and there is no prohibition against the levying of duty at the same material at more than one stages during the course of . Its manufacture. The learned counsel for respondents in support of his contentions relied on a reported judgment of Peshawar High Court titled AdiL Polypropylene v. The Federation of Pakistan and others 1997 MLD 2189 wherein it was observed as under:-- "Polypropylene strips are capable of being sold, therefore, the mere fact that they are not end products is not enough to save them from the excise duty. It was contended that the demand was made without making a factual inquiry as to whether the strips were marketable or not. Had a factual inquiry been held it would have transpired that neither the product was known to market nor the petitioners had sold it to anyone. The polypropylene strips are capable of being sold, therefore, the mere fact that they are not an end product is not enough to save them from the excise duty. Besides there is no prohibition in the Excise Law against the levying of duty on the same material on more than one stages during the course of its manufacture as observed in Sh.
Fazal Elahi v. Federation of Pakistan and 3 others 1988 MLD 524. Thus, it was observed that rule 96- ZZL is not ultra vires of the provisions of C sections 3, 3-C and 4 of the Central Excise Act, 1944. It was also observed that 'section 3 is the charging section and states the excisable goods and services which are liable to duty. Section 3-C highlights various stages in regard to determination of tariff value and rate of duty applicable to excisable goods or services and section 4 provides the manner of valuation of excisable goods and excisable services.
' According to section 2(19) the expression ' excisable goods' means goods specified in the First Schedule and includes goods manufactured or produced in non-tariff area and brought for consumption to tariff area. Plastic yarn and strips of less than 5 mm. Were held liable to central excise duty under the old CE No,08.03 B of the First Schedule vide Central Excise General Order No,3 of 1988, dated 8-5-1988 which is worded as follows Classification of Plastic Yarn and Strips -- The width of which does not exceed 5 mm. Used for weaving of fabrics ' It is clarified that such plastic yarns and strips of a width (upto) 5 mm. Are classifiable under item No,08.03 B of the Frist Schedule to the Central Excise and Salt Act, 1944 and are liable to central excise duty."
' In another case titled Nazim Poly Sack Limited and 5 others v. The Federation of Pakistan and others PLD 2000 Lah. 302 while relying on judgment of Peshawar High Court, referred to above, it was observed as under:-- "The plea that rule 96-ZZL was violative of sections 3-CC and 4 of the Central Excises and Salt Act, 1944 was rejected as being untenable. On a comparison of the new Schedule with the old Schedule, it was found that Item No,08.03 in the old Schedule has been substituted by Heading 54.04 in the new Schedule. It was observed that the polyproplyene strips were capable of being sold, therefore, the mere fact that they are not an end product is not enough to save them from the excise duty.
The learned Judges relying upon Sh. Fazal Elahi v. Federation of Pakistan and 3 others 1988 MLD 524 went on to hold that there was no prohibition of law against the levy of excise duty on the same material at more than one stage during the course of its manufacture."
6. To have a proper perception of the 1 matter involved, we deem it expedient to reproduce rule 96- ZZL of Central Excise Rules, 1944, which reads as follows:-- "Special Procedure for collection of central excise duty on polypropylene strips (Heading 5404.0000) --- (1) A manufacturer may remove polypropylene strips within the factory, without immediate payment of duty, for consumption, within the same factory, in the manufacture of woven fabrics or for the manufacture of polypropylene bags subjected to duties of excise.
(2) Central excise duty involved on the polypropylene strips, so removed; shall be assessed and paid on the net weight of such woven fabric plus five per cent. In case the manufacturer removes such woven fabric from the factory and does not consume the same within the same premises for manufacture of bags.
(3) If woven fabric is used within the same premises for manufacture of bags, the duty leviable on polypropylene strips shall be assessed and paid on the net weight of bags plus seven per cent. Of the weight thereof.
(4)
(5)
(6)
(7)
(8)
(9) The provisions of the Central Excise Rules, 1944, in so far as they are no inconsistent with this rule, shall mutatis mutandis, apply to the manufacturers opting to pay duty under this rule."
7. In a case reported as Adil Polypropylene v. The Federation of Pakistan and others 1997 MLD 2189 the Supreme Court of Pakistan observed that the granules/chips by their own are goods within the meaning of "excisable goods" and so also the bags, which are manufactured through a process from said granules, strips of polypropylene claimed to be an "intermediary product" being vendible and having a distinct entity fall within the scope of excisable goods. At the end of report it was also observed that it is not disputed that granules/chips by their own are goods within the meaning of "excisable goods" and so also the bags, which are manufactured through a process from said granules. The strips which are claimed to be an "intermediary product" being vendible and having a distinct entity fall within the scope of excisable goods. It was further observed that under section 10(3) of the Central Excise General Order of 1988 it is clear that excise duty' could be charged on any class or classes of goods at the rates specified by, a notification in official gazette and determined on the basis of rate, quantity, number, volume and measurment. Consequently, it was held, and rightly so, that rule 96-ZZL was neither outside the scope of the Act nor in conflict with it nor transgressed the limit circumscribed by it. Since the above finding of the High Court is correct, therefore, excise duty could be charged and recovered as a consequence of S.R.O. 710(1)/94, dated 13-7-1994.
8. The perusal of the judgments passed by the Peshawar High Court, Lahore High Court and the Supreme Court of Pakistan shows that the plea that rule 96-ZZL was violative of sections 3-CC and 4 of the Central Excise and Salt Act, 1944 was ejected as being untenable. It was found that Item No,08-03 in the said Schedule has been substituted by Heading 54.04 in the newSchedule. It was observed that polypropylene strips were capable of being sold, therefore, the mere fact that they are not end products is not enough to save them from excise duty.
9. In view of the aforesaid observations made by the superior Courts of Pakistan, we do not dilate upon the question as' to whether in presence of alternate remedy available to the appellant, the writ petition was at all competent. Since the appeal is being dismissed even otherwise, therefore, v e need not make any observation on the point of alternate remedy available to the appellant.
10. In the light of what has been stated above, finding no force in this appeal, the same 'stands dismissed with costs.