Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.19‑‑‑S.R.O. 484(I)/92 dated 14‑5‑1992‑‑‑Exemption from customs duty‑‑‑Objectives‑‑‑Plant and machinery‑‑‑Dump trucks imported by cement manufacturer and supplier are component parts of the industrial process and fall within the purview of "plant and machinery" as contemplated in S.R.O. 484(I)/92, dated 14‑5‑1992‑‑‑Expression "installed" does not necessarily mean fixed in position but it is also used in the sense of inducted or introduced and also means to place an apparatus in position for service or use‑‑‑Concession under the said notification is extended to the mobile machinery imported by cement industry for excavation/transportation of rocks from leased area to the factory‑‑‑Concessions/exemptions in tax matters are generally granted with intention of boosting the industrialization, manufacturing business and trade activities and while interpreting such notifications such intention has to be kept in view‑‑‑Principles.

In the present case the appellant has set up a pant for manufacturing of cement and when the Tribunal has conceded that certain goods have been imported which are meant for setting up of a new unit or expansion, balancing or modernization, it means, that the imported goods are component parts of the industrial process. It goes without saying, that when a new unit is set up then expansion, balancing or modernization of the existing unit is carried out by addition to the plant and machinery and not otherwise. If any thing is raw material, or stock in trade or is not connected with the existing plant or machinery it would not expand or modernize the existing industrial unit. Thus it is contradictory in terms to say, on one hand that the imported goods are meant for setting up of a new unit or for expansion, balancing or modernization and on the other hand, it is contended that it is not a part of industrial unit or is not used in the industrial process when the Tribunal has said that the Condition No. 1, to the effect that it is not locally manufactured is not disputed then it has to be conceded that it is a plant and machinery, because in the said notification it is contained that the Federal Government is pleased to exempt such plant and machinery, as is not manufactured locally. The words "is not manufactured locally" are used with reference to the plant and machinery and nothing else.

Generally the exemption notifications are self‑contained and they are complete code in themselves until and unless a specific reference is made in the notification to the particular P.C.T. heading or classification with reference to the Customs Tariff or any other law. A perusal of S.R.O. 484(I)/92 shows that for the purpose of exemption no reference is made to the customs tariff or P.C.T. heading. The indemnity bond prescribed with the notification contains that "the Federal Government has granted exemption subject to the condition given, in the notification". It further clarifies the intention of the Federal Government to the effect that, the machinery as defined in the notification shall enjoy exemption without recourse to the classification contained in Pakistan Customs Tariff, para. No.1, of definition of machinery contained in the notification shows that it means "machinery" operated by power of and description, such as is used in any industrial process. It cannot be denied that a vehicle is a machinery and is operated by the power. The Tribunal, in the present case, while trying to create a distinction between the "use in any industrial process" and "use within any industrial process" has accepted that the dump truck may be "used with any industrial process, meaning thereby that the use of dump truck in the process of manufacturing of cement is accepted. So far the distinction sought to be drawn by the Tribunal is concerned that it is, "used with the industrial process" and not, "in the industrial process", it is a mere jugglery of words and has no real significance, The public functionaries and the authorities acting in judicial or quasi judicial capacity are always required to act in a reasonable manner and not to resort to mere hair splitting with intention to deny a benefit available to the taxpayers. Such attitude is contrary to the very purpose of issuing a concessionary notification. The concessions/exemptions in tax matters are generally granted with intention of boosting the industrialization, manufacturing business and trade activities and while interpreting such notifications this intention should always be kept in view. So far the interpretation of expression, `instalment' adopted by the Tribunal is concerned, it is too narrow, conservative and smacks of remaining oblivious of the progress and development in the field of industry which is taking place at very rapid speed. In realm of industry such advancements are taking place which apparently seem non‑industrial but they are part and parcel of the industrial process and that while interpreting the word "installation" a liberal view should be taken. The expression "installed" does not necessarily mean fixed in position but it is also used in the sense of inducted or introduced. It also means to place an apparatus in position for service or use. It requires no emphasis that with the development in the required of industry a large variety of plants and machineries have been manufactured which are merely purchased or imported and kept in position without being fixed and they immediately provide service and are used for the purpose of industrialization and manufacturing., The C.B.R. has rightly directed in the letter, dated 6‑12‑1994, that the mobile machinery imported by cement industry for excavation/ transportation of, rocks from leased area to factory may be extended, the concession of S.R.O. 484(I)/92. The law, as well as, language are not static, but are dynamic and with the developments taking place, the words are acquiring new dimensions, new meanings and new connotations. A developing and progressive society, economy system of taxation and system of law has to keep pace with the developments, otherwise it will lose its touch with the living realities and shall become obsolete.?

The dump trucks fall within the purview of plant and machinery as contemplated in the S.R.O. 484/(I)/92, dated 14-5‑1992.

Salman Ikram Raja for Appellant.

Qazi Faez Isa for Respondents.

Date of hearing: 26th September, 2002.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.‑‑‑This appeal under section 196 of the Customs Act, 1969 is directed against the order dated 9‑8‑2002 by the Customs, Excise and Sale Tax Appellate Tribunal Karachi Bench, in Appeal No.C.U.S‑259 of 2002.

The appeal was admitted to regular hearing, to consider the following question of law:‑‑‑

"Whether Dump Trucks imported by the appellant fall within the purview of plant and machinery as contemplated in S.R.O.484 (I)/92, dated 14‑5‑1992."

The relevant facts are that the appellant carrying on business of manufacturing and supply of cement imported Dump Trucks and claimed exemption from the payment of Customs Duty and sales tax under S.R.O. 484 (I)/92, dated 14‑5‑1992, contending that it was a plant/machinery used in the industrial process carried out by the appellant. However, the Deputy Collector of Customs Appraisement declined to accept the claim of exemption and directed to pay the Customs Duty and other taxes at statutory rates, amounting to Rs.33,087,336. The appellant preferred first appeal before the Customs, Excise and Sales Tax Appellate Tribunal (hereinafter referred to as Tribunal). The appeal was dismissed by the learned Tribunal on 9‑8‑2002.

The question of law arises out of the order of the learned Tribunal, which reads as follows:‑‑‑

"7. The appellant in this case is a Cement Manufacturer and imported off high way dump trucks and sought clearance under S.R.O. 484(I)/92, dated 14‑5‑1992. Before proceeding further we would like to reproduce the S.R.O. with benefit.

"8. In exercise of the powers conferred by section‑ 19 of the Customs Act, 1969 (IV of 1969) and section 13 of the Sales Tax Act, 1990, and in supersession of this Ministry's Notification No. S.R.O. 59 (I)/92, dated the 28th January, 1992, the Federal Government is pleased to exempt such plant and machinery as is not manufactured locally and is imported during the period commencing on the 1st December, 1990, and ending on 30th June, 1995, for setting up new units and for expansion or balancing modernization and replacement of units.

(a) in areas other than specified in Table‑I, from whole of the customs duty and sales tax leviable or chargeable thereon under the First Schedule to the Customs Act, 19651, or, as the case may be Sales Tax Act, 1990; and

(b) in the industrial estates specified in Table‑II from so much of the customs duty and sales tax leviable or chargeable thereon under the First Schedule to the Customs Act, 1969, or, as the case may be, the Sales Tax Act 1990, as is specified in column No.3, of the said table subject to the conditions set out below, namely:‑‑‑

(1) The importer shall, at the time of import of machinery make a written declaration on the bill of entry to the effect that the machinery has been imported for a project located in areas other than those specified in Table‑II.

(2) The importer shall furnish an indemnity bond in the Form set out below to the extent of customs duty and sales tax exempted under this Notification. The said indemnity bonds shall be discharged subsequently on production of a certificate from the Assistant Collector, Customs and Central Excise, to the effect that the plant and machinery imported for setting up new units of expansion or balancing, modernization and replacement of existing units located in the areas enjoying benefit of concession under this notification, have been duly installed in the aforesaid areas.

(3) The certificate of installation referred to in condition (2) shall be submitted, to the Collector of Customs not later than one year from the date of importation of the plant and machinery to which it relates.

(4) The plant and machinery released under this notification shall not, within a period of eight years from its importation, be used in any area, which is, not eligible for the same concession. In case this condition is violated the amount of customs duty, surcharge and sales tax exempted under this notification and penalties that may be imposed under this notification and penalties that may be imposed in this behalf shall be recovered under section 202 of the Customs Act, 1969.

For the purpose of this notification, machinery shall mean‑‑‑

(i) machinery operated by power of any description, such as is used in any industrial process including mining and extraction of timber,

(ii) apparatus and appliances, including metering and testing apparatus and appliances specially adapted for use in conjunction with machinery specified in item (1) above;

(iii) Power generating plat for operating item (1) above;

(iv) mechanical and electrical control and transmission gear adapted for use in item (1) above; and

(v) component parts of machinery as specified in items (1) ant (II) identifiable as for use in or with such machinery".

7. The reading of the above notification would show that the Federal Government has granted exemption to the import of plant and machinery under this S.R.O. on the following conditions:

(i) that it is not locally manufactured.

(ii) is imported during the period commencing from 1st December, 1990 and ending on 30‑6‑1995.

(iii) is for setting up a new unit and for expansion or balancing: or modernization.

(iv) Apparatus and component parts have to be such as defined in the notification.

(v) is meant for installation in areas other than specified in Table‑I of custom duty.

(vi) in industrial estates in Table‑II from so much of customs duty as is specified.

(vii) the indemnity bond furnished by the importer to be charged subsequently on production of certificate from Assistant Collector and Central Excise to the effect that subject to plant and machinery has been duly installed in the aforesaid area.

8. The case record shows that there is no dispute as fat as condition Nos. I, II and III as mentioned above are concerned. The impugned consignment, however, has been held to be out of scope of S.R.O. 484(I)/92 on account of its not being covered under definition of machinery. We observe that as fat as defining of goods or the classification of goods is concerned Customs is the only act which follows an International Scheme duly backed by the statutory sanction. The classification along-with the rate of duty is thus given the statutory cover by Legislature under the Finance Bill every year and the entire document is called Pakistan Customs Tariff. Since the entire classification has been given a statutory cover. We find no room or excuse to deviate from it. Pakistan. Customs Tariff classifies goods both in terms of description as well in terms of their corresponding heading and sub‑heading. The reading of the Customs Tariff would show that all the machinery is mentioned in Chapters 84 and 85 while off highway dump trucks are classified as vehicles and mentioned in Chapter 87 which is meant for the description as vehicles and mentioned in chapter 87 which is meant for the description of all types of vehicles. The sub‑heading assigned to dump truck in Pakistan Customs Tariff reads as 8704.100. The scheme of Customs Tariff clearly excludes the item mentioned in the one Chapter from the other Chapter. We thus find no logic or any legal excuse to classify the dump trucks as machinery as these have been clearly declared by the Legislature as vehicles.

9. Even otherwise these vehicles are not covered under the definition of machinery under S.R.O. 484(I)/92. The S.R.O. defines it as machinery operated by power of any description such as is used `in any' industrial process and not `with' any industrial process. It is obvious that off highway dump trucks are not used `in any' industrial process, notwithstanding they may be used `with' any industrial process but then this will not entitle them to exemption.

10 Besides, the definition is exhaustive it‑ includes apparatus and appliances, metering and testing apparatus, power generating plants, mechanical and electrical control and transmission gear and its component parts. In presence of this exhaustive definition we find no room to include the vehicles, which may or may not have to be used in the factory, as being covered under this exemption and hence in admissible for the purpose of grant of exemption under S.R.O. 484(I)/92.

11. The above mentioned notification also lays down another important condition for the grant of exemption and that is that this machinery, has to be installed in the specified areas and not only this but also that the indemnity bond furnished by importer in this regard shall be released subsequently on the production of a certificate from Assistant Collector concerned to the effect that this machinery has been duly installed in the aforesaid areas. How could off highway dump trucks be installed in the specified areas and how could any Assistant Collector give a certificate for their installation which would enable the importer to get the release of their bond is beyond comprehension. On this ground also the off highway dump trucks are not eligible for the grant of exemption under S.R.O. 484(I)/92. The appellants have referred to some solitary reference from Central Board of Revenue whereby Central Board of Revenue has allowed the release of some mobile machinery under the aforesaid S.R.O. We have examined this Letter bearing C. No. 1(7)/92, dated 6‑12‑1994 and observe that even this solitary reference against hundreds where such requests have been regretted is of no help to the appellant as this relates to machinery which the goods imported by appellant are vehicles and secondly this has been released provisionally and this provisional release is also subject to final decision after consultation with the Justice Divisions. Besides, the same letter further clarifies that even mobile machinery would not be eligible for this exemption for which there is no reasonable belief that it will be used for 8 years in the areas specified in the Table. Obviously there can be no reasonable belief that off highway dump trucks, which are meant for transportation, will not be used in areas other than the specified one.

12. The appellant has made references to various judgments regarding interpretation of plants, and machinery. We observe that these references are irrelevant as these relate to income tax. The income tax law is altogether different from Customs and does not follow the scheme of classification as is mentioned in Pakistan Customs Tariff. It is concerned with assessment of goods from a different angle. It categories the goods as assets or liabilities regardless of the fact whether these are machinery, office equipment or vehicles. Thus even if for the sake of arguments, the off highway dump trucks are considered as part of plant for income tax' purposes yet this will not entitle them for exemption as machinery under the Customs S.R.O. as these are vehicles and not machinery according to Customs Act. As such these references are just off the mark.

13. For the reasons stated above, we find no justification to interfere with the impugned order which is correct in law and fact. The appeal is accordingly dismissed."

Mr. Salman Akram Raja learned counsel for the appellant has submitted that the learned Tribunal has accepted that the dump trucks imported by the appellant are not locally manufactured and have been imported during the period covered by S.R.O. 484(I)/92, and that the import was for setting up a new unit and for expansion, balancing and modernization. The sole reason for rejection of claim is that according to the learned Tribunal the dump trucks do not fall within the definition of machinery. He has vehemently argued that the learned Tribunal instead of considering the definition of machinery as given in the S.R.O. itself, has travelled beyond the scope of S.R.O. and has entertained the irrelevant considerations. The learned Tribunal has observed that the Customs Act is only law which follows an international scheme duly backed by the statutory sanction for the purpose of defining of goods or classification of goods. The learned Tribunal has further observed that entire classification has been given a statutory cover in Pakistan Customs Tariff and there is no room or excuse to deviate from it. The learned Tribunal after making these observations has made reference to Chapters 84 and 85, of the Customs Tariff and has observed that machinery is mentioned in the Chapters 84 and 85, while off highway dump trucks imported by the appellant are classified as vehicles and are mentioned in Chapter 87 which is meant for the description of all types of vehicles. The sub‑heading assigned to the dump trucks in Pakistan Customs Tariff reads as 8704.100. The scheme of Customs tariff excludes the item in one Chapter from the other Chapter. On the basis of this logic, the learned Tribunal has held that the dump trucks have been classified as vehicle and therefore, it cannot be classified as machinery. The learned counsel for the appellant has vehemently assailed this line of reasoning contending that, the narrow view taken by the learned Tribunal is not justified. He has contended that the dump truck is a mobile machinery which is absolutely necessary for carrying out the industrial process of appellant for the purpose of manufacturing cement. He has maintained that admittedly the dump truck is a mobile machinery which is operated by power (fuel) and has been specifically designed for the purpose of carriage of industrial load over short distance for the purpose of industrial process of the appellant. He has submitted that the Central Board of Revenue has accepted the dump truck and mobile machinery as plant and machinery for the purpose of S.R.Os. granting exemptions. In support of his contention he has placed reliance on several letters issued by the C.B.R. directing to extend the benefit of exemption notification to such vehicles treating them as machinery. He has particularly placed reliance on the order, dated 15‑4‑1996, passed by the Member Customs (C.B.R.) in the case of Messrs Leglar Nafees Denim Mills Ltd. In this case the Customs Department and refused to extend the benefit of S.R.O. 484(I)/92, dated 14‑5‑1992 (under which exemption is claimed by the appellant in this ease). The action was challenged in. Lahore High Court at Rawalpindi and a direction was given to the Member (Customs C.B.R.) to decide the case afresh. In the said case exemption was denied for the reason that the machinery in question was neither industrial nor installable. It was contended before the learned Member (Customs C.B.R.) that the stance of the Department was incorrect and that in the case of Ms. Nishat Fabrics similar concession was allowed, regarding identical goods. The learned Member (Customs C.B.R.) held as follows:‑‑‑

"The main issue involved in this case is whether or not the goods imported by the petitioner are industrial and installable and are covered by S.R.O. 484(I)/92, dated 14‑5‑1992. Apparently the machinery in question is moving but this should not lead us to hold that it is mobile machinery which is meant for non‑industrial purposes.

(6) In fact in the realm of industry such advancements are taking place which apparently seen non‑industrial but they are part and parcel of industrial process. While examining such issues we should not be carried away by strict interpretation of word installation but we ought to be liberal in our interpretation where the goods are clearly for use in an industry or plant, whether these are to be firmly installed in one place or not.

(7) In view of foregoing the Board's Letter 1(35) Much/90‑Petition, dated 19‑9‑1995 is hereby withdrawn. The goods imported and cleared vide Bill of Entry No. 197, dated 24‑4‑1995 fall in the ambit of S.R.O. 484(I)/92, dated 14‑5‑1992. Any guarantee obtained from the petitioners .for clearance of their goods is ordered to be released."

He has further referred to the letter, dated 16‑12‑1994 addressed by C.B.R. to the Collector of Customs (Appraisement) Customs House Karachi. This is also with reference to the S.R.O. 484(I)/92 viz. a viz., the construction machinery imported by the construction firms and mobile machinery imported by industrial units. The C.B.R. was pleased to release mobile machinery imported by cement industry for excavation/transportation of rocks. The concession under S.R.O. 484(I)/92, dated 14‑5‑1992 was extended again vide letter, dated 5‑10‑1995. The C.B.R. directed to continue with the decision conveyed vide letter, dated 6‑12‑1994.

The learned counsel for the appellant has submitted that the learned. Tribunal has totally ignored that the S.R.O. 484(I)/92 granted exemption to plant and machinery. According to the learned counsel the dump truck falls within the definition of plant as well. He has submitted that in the Notification S.R.O. 484(I)/92 the expression, "machinery" has been defined but the plant has not been defined, therefore, it shall be taken in its ordinary meaning in the common parlance. He has submitted that in corpus juris secundum volume 70, the expression plant is defined as follows:‑‑‑

"Plant.‑‑‑A broad and liberally applied term of such variable meaning that in order to be properly understood the subject-?matter to which it relates must be known.

As a noun. In its' primary signification the word 'plant' relates to growth of a vegetable character, and there is involved in it the idea, not only of attachment to the soil, but of some degree of permanency. In this sense the word 'Plant' is defined as meaning a slip, cutting, or sapling; a young tree, shrub, or herb, planted or ready to plaint.

'Within comparatively recent years the language has been enriched by a new use of the old word 'Plant', and in its newer usage the terms means an operating unit, and refers to organized physical

equipment which will produce a desired result. When the word is used in this sense with reference to manufacturing, mercantile, or industrial establishments, it has a wider significance than when it is used in its primary sense.

As used with reference to manufacturing, mercantile, or industrial establishments, the word 'plant' is defined as meaning the whole machinery and apparatus employed in carrying on a trade or mechanical business; property owned or used in carrying on some trade or business, the fixtures, machinery, tools, apparatus, appliances, etc. necessary to carry on any trade or mechanical business, or any mechanical operation or process; the machinery, apparatus, fixtures, etc, employed in carrying on a trade or a mechanical or other industrial business, as an electric light plant, a fishing plant, etc. the toots, machinery, apparatus, and fixtures as used in a particular business, that which is necessary to the conduct of any trade or mechanical business often including the building business or undertaking a set of machines, tools, etc., necessary to conduct a mechanical and grounds, or in case of a railroad, the rolling stock,‑but not including material or product; everything other than supplies and stock‑in‑trade necessary and requisite to the carrying on of a business; whether apparatus is used by a business man for carrying on his business, not his stock‑in‑trade which he buys or makes for sale, but all goods and chattels, fixed and movable, live or dead, which he keeps for permanent equipment in his business, a workshop or other apparatus complete, as a bicycle plant.

The word `plant' is an all‑embracing terms, and it may include real estate. It is expressive of land and buildings, but, subject to the qualification that, while ground occupied by a factory or mill, or even that part adjoining a factory and used for office or warehouses, may be treated as part of the plant, a large tract of land many miles from the plant proper which is used for raising raw material for the factory ordinarily will not be considered a part of the plant. A plant is not merely the place of business, but the means of carrying it on, and the term includes everything that represents capital invested in the means of carrying on a business, and it is applied to the manufacturing premises equipped with machinery and appliances required for the carrying on of the business there conducted, including the apparatus required to carry on any manufacturing operation, and no special form of machinery or appliance is necessary to constitute a plant. The term ordinarily is not applied to the raw material or the manufactured product, and does not include the supplies and stock‑in‑trade necessary to the carrying on of a business.

A 'plant' is an entity wholly distinct from the land, buildings, machinery, and appliance which compose it, and it has a much greater value in its entirely than the aggregate value of the land with buildings and the equipment if sold separately.

While the word 'plant' is defined in a large number of cases where many forms of business and manufacturing are covered, and although it is in many instances applied to manufacturing, mercantile, or industrial establishments, it, is not always so restricted, and, by extension, the word 'plant' may also mean the equipment of any institution, as the plant of a college; the permanent appliances needed for any institution, as a past office, ands in the terminology employed in the field of outdoor advertising. A 'plant' means a group of sign locations owned or controlled by one bill poster in one city or community."

He has submitted that according to the meaning of plant as above the tools machinery and apparatus which are necessary to conduct any trade or manufacturing business or undertaking are included in the plant. According to the learned counsel the dump truck imported by the appellant are necessary to conduct the business of cement manufacturing and thus it falls within the purview of plant. In Halsbury's Laws of England Volume 23, it is stated that 'plant' extends to the tool of a man's trade, including whatever apparatus is used by a business men or a professional person for carrying on his business or profession.

The learned counsel for the appellant has further placed reliance on a judgment from Indian Jurisdiction. The Supreme Court of India held in the case of Collector of Central Excise v. Rajastan State Chemical Works (AIR 1991 SC 2222) that the lifting of raw material to planform with aid of power; for manufacturing lime is manufacturing process.

The learned counsel for the appellant has vehemently assailed the hair splitting by the learned Tribunal whereby distinction has been attempted to be made in the expression, "in any industrial process" and, "with any industrial process". The learned Tribunal has held that the dump truck may be used, "with ind6strial process", but it is not used "in any industrial process", as envisaged in S.R.O. 484(I)/92. He has submitted that the dump truck is used in the process of manufacturing of cement and therefore, the Tribunal has taken unrealistic and imaginary view that it is used with the industrial but not in the industrial process.

He has further referred to the observation of the Tribunal that in the presence of exhaustive definition of machinery given in the notification, there is no room for including vehicles which may or may not be used in factory. The learned counsel has submitted that the observation is totally imaginary because the off highway dump truck cannot be used for transportation or any other purpose except for the manufacturing process carried out at the plant of the appellant.

The learned counsel has argued with all the force at his command that the Tribunal has taken a very narrow view of the expression "installation". The learned Tribunal has exclaimed as to how, off highway dump trucks have been installed, and how, any Assistant Collector could give a certificate for installation, enabling the importer to get release of their bond as required under the notification. He has submitted that the Assistant Collector has already issued certificate of installation and the Tribunal has been interpreting under a wrong impression that the expression `installation' connotes the fixation of machinery only. He has urged that the learned Member (Customs) C.B.R., has considered this aspect in his order, dated 15‑4‑1996, and has rightly observed that a moving machinery should not be taken as meant for non‑industrial purpose and that with the advancement taking place in the industrial realm, the strict interpretation of word installation should not be taken and a liberal interpretation be given. The learned counsel for the appellant has referred to the meaning assigned to the expression, "installation", by the Supreme Court of India in the case of Commissioner Income Tax v. Mir Muhammad Ali (AIR 1964 SC 1693), as follows:‑‑‑

"expression" 'installation' does not necessarily mean fixed in position but it is also used in sense of inducted or introduced.

The word also means to place an apparatus in position for service or used. Therefore, when an engine is fixed in a vehicle it is installed."

The learned counsel for the appellant has concluded his arguments contending that the respondent, as well as the Tribunal have taken an extremely narrow view of the expressions, "machinery" and "installed" used in the Notification, S.R.O. 484(I)/92, which amounts to defeating the very purpose of concession granted by the Government, for the purpose of industrialization and therefore, the impugned order may be set aside, and the benefit of S.R.O. 484(I)/92, dated 14‑5‑1992, may be extended to the off highway dump trucks imported by the appellant.

On the other hand, Mr. Qazi Faez Isa, learned counsel for the respondents has supported the impugned judgment of the learned Tribunal. He has contended that the dump truck being basically, a vehicle, is not included in the expression machinery as defined in the Notification and secondly, it is a moving article which is not capable of being installed.

We have carefully considered the contentions raised by the learned Advocates for the parties and have perused the impugned judgment of the learned Tribunal. We are not persuaded to agree with the view held by the learned Tribunal in the impugned order. We find inherent contradiction in the finding of the learned Tribunal. The learned Tribunal after re‑producing the S.R.O. 484(I)/92 has analyzed the same and has given 7 conditions for the grant of exemption to the importer of the plant and machinery. The learned Tribunal has observed that there is no dispute as far as the Conditions Nos. 1, 2, 3 are concerned. The relevant conditions enumerated by the learned Tribunal are, that the plant and machinery is not locally manufactured and is for setting up a new unit and for expansion, balancing or modernization. Once the Tribunal has held that these conditions are undisputedly available it means that certain plant and machinery has been imported which is not locally manufactured and that the imported goods is for setting up of a new unit or for expansion, balancing or modernization. There is no dispute that the appellant has set up a plant for manufacturing of cement and when the Tribunal has conceded that certain goods have been imported which are meant for setting up for a new unit or expansion, balancing or modernization, it means, that the imported goods are component parts of the industrial process. It goes without saying, that when a new unit is set up then expansion, balancing or modernization of the existing unit is carried out by addition to the plant and machinery and not otherwise. If anything is raw material, or stock‑in‑trade or is not connected with the existing plant or machinery it would not expand or modernize the existing industrial unit. Thus it is contradictory in terms to say, on one hand that the imported goods are meant for setting up for a new unit or for expansion; balancing or modernization and on the other hand, it is contended that it is not a part of industrial unit or is not used in the industrial process when the learned Tribunal has said that the Condition No. 1, to the effect that it is not locally manufactured is not disputed then it has to be conceded that it is a plant and machinery, because in the said notification it is contained that the Federal Government is pleased to exempt such plant and machinery, as is not manufactured locally. The words "is not manufactured locally" are used with reference to the plant and machinery and nothing else.

Secondly, we find substance in the contention of Mr. Salman Ikram Raja learned counsel for the appellant, that, the learned Tribunal was not justified in interpreting the definition of machinery with reference to the classification of goods in the Pakistan Customs Tariff. The reason being, that generally the exemption notifications are self-?contained and they are complete code in themselves until and unless a specific reference is made in the notification to the particular P.C.T. heading or classification with reference to the Customs Tariff or any other law. A perusal of S.R.O. 484(I)/92 shows that for the purpose of exemption no reference is made to the customs tariff or P.C.T. heading. The indemnity bond prescribed with the notification contains that "the Federal Government has granted exemption subject to the condition given in the notification". It further clarifies the intention of the Federal Government to the effect that, the machinery as defined in the notification shall enjoy exemption without recourse to the classification contained in Pakistan Customs Tariff, para. No.1, of definition of machinery contained in the notification shows that it means "machinery" operated by power of any description, such as is used in any industrial process. It cannot be denied that a vehicle is a machinery and is operated by the power. The Tribunal while trying to create a distinction between the "use in any industrial process" and "use within any industrial process" has accepted that the dump truck may be "used with any industrial process, meaning thereby that the use of dump truck in the process of manufacturing of cement is accepted. So far the distinction sought to be drawn by the learned Tribunal is concerned that it is, "used with the industrial process" and not, "in the industrial process", we are of the opinion that it is a mere jugglery of words and has no real significance. The public functionaries and the authorities acting in judicial or quasi‑judicial capacity are always required to act in a reasonable manner and not to resort to mere hair splitting with intention to deny a benefit available to the taxpayers. Such attitude is contrary to the very purpose of issuing a concessionary notification. The concessions/exemptions in tax matters are generally granted with intention of boosting the industrialization, manufacturing business and trade activities and while interpreting such notifications this intention should always be kept in view. So far the interpretation of expression, `instalment' adopted by the learned Tribunal is concerned, we are persuaded to agree with the contention of Mr. Salman Akrarn Raja learned counsel for the appellant that it is too narrow, conservative and smacks of remaining oblivious of the progress and development in the field of industry which is taking place at very rapid speed. We agree with the view of the learned Member (Customs) C.B.R., contained in his order, dated 15‑4‑1996, referred to by the learned counsel for the appellant, wherein he has observed that in realm of industry such advancements are taking place which apparently seem non‑industrial but they are part and parcel of the industrial process and that while interpreting the word "installation" a liberal view should be taken. We respectfully agree with the interpretation placed by the Supreme Court of India in the case of Commissioner of Income‑tax v. Mir Muhammad Ali (supra), to the effect that the expression "installed" does not necessarily mean fixed in position but it is also used in the sense" of inducted or introduced. It also means to place an apparatus in position for service or use. It requires no emphasis that with the development in the realm of industry a large variety of plants and machineries have been manufactured which are merely purchased or imported and kept in position without being fixed and they immediately provide service and are used for the purpose of industrialization and manufacturing. The C.B.R. has rightly directed in the letter, dated 6‑12‑1994, that the mobile machinery imported by cement Industry for excavation/transportation of rocks from leased area to factory may be extended, the concession of S.R.O. 484(I)/92. The law, as well as, language are not static, but are dynamic and with the development taking place, the words are acquiring new dimensions, new meanings and new connotations. A developing and progressive society, economy system of taxation and system of law has to keep pace with the developments, otherwise it will loose its touch with the living realities and shall become obsolete

The treatment given by the respondents and the Tribunal to the appellant is discriminatory as well because the C.B.R. which is the apex body in the Tax hierarchy has allowed similar concessions to the other importers and denial of the concession to the appellant certainly amounts to inconsistent and discriminatory treatment which is violative of the fundamental rights guaranteed in the Constitution. Even otherwise discriminatory and inconsistent treatment in the Tax matters, is fraught with many undesirable consequences.

For the foregoing reasons it is held that the Tribunal was not justified in denying the concession of S.R.O. 484(I)/92 to the appellant. It is further held that the dump trucks imported by the appellant fall within the purview of plant and machinery as contemplated in the S.R.O. 484(I)/92, dated 14-5‑1992. The question for consideration is answered in‑affirmative: The appeal is allowed as above.

A copy of this judgment be sent under seal and signature of the Registrar of this Court to the Registrar of the Tribunal which shall pass order conformably to the findings contained in this judgment.

M.B.A./D‑40/K ????????????????????????????????????????????????????????????????????????????????? Appeal allowed.