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(On appeal from the judgment and order, dated 15‑5‑1983, passed by the High Court of Sind at Karachi in Constitutional Petition No. D‑719 of 1982).

(a) Constitution of Pakistan (1973)

‑‑

‑‑Art. 185(3)‑‑Cantonments Act (II of 1924) , Ss 61 & '22fi, read with Notification, dated 31‑5‑1979‑‑Leave to appeal granted to consider whether High Court erred in holding that octroi duty was not chargeable on empty liquefied petroleum gas cylinders brought into area of Cantonment Board pursuant to Notification, dated 31‑5‑1979, issued in violation of Ss. 61 & 225 of Cantonments Act, (II of 1924).

(b) Cantonments Act (II of 1924)‑‑

‑‑‑Ss. 61 & 225 read with Notification, dated 31‑5‑1979‑‑Octrui duty‑ Levy of‑‑Empty Liquefied Petroleum Gas Cylinders brought in the area of Cantonment Board for refilling‑‑Plea raised that octroi duty was payable only once when they were imported for first time within limits of Cantonment Board and not repeatedly‑‑Question arising whether word "refilling" would amount to "using", cylinder within Cantonment‑‑Word "use" not having been defined in Act, it was given its ordinary dictionary meanings‑‑Word "use" distinguished from word "consumption "‑‑Held, Cylinders were brought within Cantonment area fur use therein and it was immaterial whether brought for first time or repeatedly‑‑It was liable to levy of octroi duty each time because of being brought for use within said limits‑‑High Court was found to have erred in holding that impugned notification could have no legal effect‑‑Appeal accepted with costs.‑‑[Words and phrases]

M. Naimur Rahmari, Advocate Supreme Court instructed by M. Shabbir Ghaury, Advocate‑on‑Record for Appellants.

Noor Muhammad, Advocate Supreme Court instructed by A. Aziz Dastgir, Advocate‑on‑Record for Respondent No. 1.

Nemo for Respondents Nos. 2‑3.

Date of hearing: 13th January, 1986.

Leave to appeal: was granted to consider whether the High Court erred in holding that octroi duty was not chargeable on empty liquefied petroleum gas cylinders brought into the area of Cantonment Board pursuant to notification, dated 31st o May, 1979, issued in violation of sections 61 and 255 of the Cantonment Boards Act, 1924 (hereinafter called the Act).

2. The respondent is a private limited company and has its plant at Korangi Creek within the area of Cantonment Board Karachi for filling and re‑filling liquefied petroleum gas in cylinders, and for that purpose it imported 10,041 empty cylinders for such filling of the gas at its plant at Korangi. On their import within the said area in March 1981, the petitioner levied an octroi duty of Rs.27,295 which was paid. After being filled in with the liquefied petroleum gas, the cylinders were taken out from the area for being distributed to the consumers in the city and the empty cylinders were again brought at the plant for refilling. The dispute arose in May, 1981 when the respondents challenged the levy of the octroi duty on the cylinders being brought in after the gas was consumed for refilling on the ground that such octroi duty was payable only once when they are imported for the first time within limits of the Cantonment Board and not repeatedly. Again in July, 1982 payment of duty was refused and in regard to it there was exchange of correspondence between the parties. As the octrui duty was not paid, the empty cylinders were seized and it was after payment under protest that the empty cylinders were released. The respondents thereupon challenged the levy of the octroi duty through constitution petition No. D‑719 of 1982.

3. The grounds taken were firstly, that the gas cylinders were not covered by item (h) namely utensils made of iron (empty gas cylinders) and other empty iron containers occurring under the heading "iron" in section 60 of the Cantonment Boards Act, 1924, as it did not cover used returnable empty liquefied petroleum gas cylinders brought into the area for a limited duration of refilling for the use of the consumers; secondly, that the aforesaid notification which purports to substitute schedule‑B contained in the previous notification, dated 1st of July, 1971 being itself devoid of legal sanction, as it was not published in terms of section 60(2) of the Act, could not form the basis for any levy of octroi duty by its substitution in the notification, dated 31st of May, 1979; and, thirdly, that the notification, dated 31st of May, 1979 issued in violation of sections 61, 62 and 2a5 of the Act, itself suffered from a serious legal defect, and could not, in taw, enforce the levy of octroi duty.

4. The High Court held as a fact that the notification, dates 31st May, 1979, did not amend the notification issued on 1st of January, 1971, but the notification of a later date, i.e., 10th of September, 1976. As for the contention that the duty was only payable once when the goods were first imported into the area of Cantonment Board, the High Court held that the terms "consumption", "use" or "sale" should be read conjunctively, and that by the meaning of the wood "use" wherever an empty cylinder was brought into the area of the Cantonment Board, it was chargeable to octroi duty under the notification, dated 31st of May, 1979. The High Court said:‑‑

"The question, therefore, arises whether "re‑filling" the cylinder with L.P.G. would amount to "using" the cylinder within the limits of the Cantonment. Since the word 'use' has not been defined by the Act or the rules (which have not been framed so far under the Act) it should be understood in its ordinary dictionary meaning. According to Concise Oxford Dictionary the word 'use' means "employment, application to a purpose, treat in a specified manner." Thus if an empty cylinder is imported for the purpose of re‑filling, it is being employed or applied to specific purpose or is being treated in a specified manner. Hence there can be no manner of doubt that if an empty cylinder is brought within the limits of Cantonment for the purpose of re‑filling with L.P.G. at the plant of the petitioner, it shall fall within the mischief of the impugned Notification, because it has been brought within the Cantonment area for use therein. It is immaterial whether a cylinder is brought for the first time or repeatedly within the Cantonment area. If the same cylinder is brought repeatedly the use within the octroi limits of the Cantonment, it shall be liable to levy of octroi duty each time because it is being brought for 'use' within the said limits."

5. Having held so the Court went on to examine the vires of the notification, dated 31st of May, 1979 and held that the notification was issued in violation of sections 61 and 62 of the Act as the appellant had failed to rebut the allegation on fact levelled to deny the vires of the notification.

6. The violation in the view of the High Court was in regard to the increase in the levy of the octroi duty from Rs.0.68 per maund to Rs.0.04 per Kilo, and for that matter compliance with the requisite sections was necessary to give to the impugned notification the force of law.

7. The learned counsel for the appellant contended that there was no enhancement of the rate of octroi duty by the said notification. But only a conversion in accordance with the metric system from Rs.0.68 per maund to Rs.0.02 paisas per Kilo on the weight of empty gas cylinders, and, therefore, there was no necessity for complying with the sections 61, 62 and 255 of the Act. He also contended that the High Court erroneously held the enhancement to be Rs.0.04 per Kilo and on that basis it had reached the conclusion as it did that the impugned notification was not enforceable. He referred us to para. 13 the petition where the conversion has been worked out as under:‑‑

"1 Maund‑37.32 Kilos

On 27.32 Kilo‑ Rs.0.68 octroi duty is levied. Therefore, 1 Kilo = Rs.0.68 = 37.32 s Rs.0.018 or rounded to the nearest paisa Rs.0.020 octrui duty is levied as per accounting practice." All that has been done is that the figure 0.018 has been rounded of to 0.02, which according to the prevailing accounting system could be rounded to make it a full unit as it exceeded the 50 value. This conversion has its statutory sanction by reason of Weights and Measures (Metric System) Act, 1967 and the Coinage Act of 1906 as amended by the Pakistan Coinage Act (Amendment) Ordinance, 1960.

8. The learned counsel for the respondents was not able to support the finding of the High Court as to the enhancement of the rate of octroi duty nor to controvert the conversion according to the metric system. Accordingly, the High Court was clearly in error in holding that the octroi duty was enhanced to Rs.0.04 per Kilo by the impugned notification and for that matter also erred in holding that the impugned notification could have no legal force as it was issued without complying with the requisite provisions of the Act. Having conceded to this aspect of the case, the learned counsel for the respondents challenged the conclusion of the High Court that the gas cylinders were brought into the area of the Cantonment Board for use by reference to its meaning on the premise that their bringing into the area was for a temporary duration namely, refilling of gas and did not entail total use as is the import of the word 'use' occurring in the notification. In a like manner as provided under the Municipal Administration Ordinance, 1960, the words 'consumption', 'use', or 'sale' are mentioned in the impugned notification issued under section 60 of the Act. These words have separate connotations. It is impossible to give to the word 'use' the same meaning as the word 'consumption' conveys for the latter entails a total loss of the material while the former denotes utilization or employment for or with some aim or purpose. Accordingly, it cannot in its concept involve an element of total or partial application Resides the word 'use' is not qualified by any such word as 'total' or 'partial' in the notification, therefore, such a meaning cannot be given to it.

9. The last contention that the cylinders could not be charged to octroi duty as they were used to, fill in liquified petroleum gas which was a subject within the competence of the Federal Legislation, is also without substance since the octroi duty is not payable on the gas, but on the use of the cylinders themselves as the word 'use' has a specific reference to them. In the result, the appeal succeeds and is allowed with coats.

M.I. Appeal allowed.

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