Messrs MALIK PESTICIDE (PVT.) LTD., LAHORE VS COLLECTOR OF CUSTOMS, DRY PORT, LAHORE, and another
2005 P T D 2596
[Lahore High Court]
Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ
Messrs MALIK PESTICIDE (PVT.) LTD., LAHORE
Versus
COLLECTOR OF CUSTOMS, DRY PORT, LAHORE, and another
S.T.As. Nos.518 of 2002 and 23-S of 2000, decided on /01/.
th
April, 2005. Sales Tax Act (VII of 1990)---
----Sixth Sched., Items Nos. 12 and 17---"Pesticide" and "Weedicide"---Distinction---Exemption from sales tax---Classification of such products under separate PCT Headings in Pakistan Customs Tariff---Different usages/end use of both such products---"Weedicides" would not fall within definition of "insecticide"---Pesticides are used against live insects, whereas weedicide is used to weed-out herbicides anti-spouting products or for unnecessary plant growth---Exemption to weedicide from sales tax not having retrospective effect.
Dr. Ilyas Zafar for Appellant.
ORDER
SYED HAMID ALI SHAH, J.---By this single order we propose to decide S.T. Appeal No.23-S of 2000 titled "Malik Pesticides v. Sales Tax Appellate Tribunal etc." and S.T. Appeal No.518 of 2002 titled "Messrs Malik Pesticides v. The Customs Central Excise & Sales Tax Appellate Tribunal etc." as common questions of law and fact are involved in both these appeals.
2. Appellant claims exemption on "WEEDICIDES", a product imported by it on the following grounds:---
(i) Weedicide is a kind of "Pestcide". This word appears in 6th Schedcule for the purpose of exemption. (S. No. 12).
(ii) Weedicide was exempted from Sales Tax for the last 15 years.
(iii) According to notification issued by the Ministry of Agriculture, Weedicide is shown as Pesticide.
(iv) Department of Plant Protections has also issued a certificate for the import of Weedicide as Pesticide.
3. The appellant thus claims the weedicide is covered under pesticide, the respondent No.3, served a demand notice for recovery of Rs. 1,46,773 being short paid amount on account of erroneous interpretation of the word "pesticide". The appellant replied to the notice and respondent No.3 passed Order-in-Original No.49 of 1999 on 13-5-1999, holding the appellant guilty of depriving the Government from its legitimate revenue to the tune tof Rs. 1,46,773 and ordered the appellant to deposit the said amount forthwith. The appellant challenged the said order in Appeal No. 1198 before respondent No.2, who vide order dated 14-9-1999 upheld the decision of respondent No.3. The appellant then agitated the matter before respondent No. 1, where the appeal filed by the appellant was dismissed. Hence this appeal.
4. Learned counsel for the appellant has contended that similar import at Karachi Port is given the exemption but the appellants have been declined the exemption. The weedicide falls within the category of agriculture and livestock, being head "Pesticides Not Having A Trade Name" and a certificate to the appellant is given under the same head. The S.R.O. 94(I) of 1995 by Ministry of Food and Agriculture further explains the import of the appellant, under the said category. He further referred to the definition of pesticides in "Farm Chemical Hand Book" and also referred to section 3(n) of Statute regulating Import Manufacturing and Distribution etc. to contend that any substance or mixture of substance which prevents or destroy etc. the weeds is also defined as pesticides.
5. Heard learned counsel for the appellant and perused the record.
6. We have carefully examined the orders impugned before us and also 6th Schedule to Sales Tax Act, 1990. Weedicide and Pesticides are classified separately in the Pakistan Customs Tariff under headings 3808.9010 for pesticides and 3808.3010 for weedicide. Both the products have different usages/end use. Pesticides are used against live insects whereas weedicide is used to weed-out herbicides anti-spouting products or for unnecessary plant growth. The exemption to Sales Taxes notified only for pesticides falling under PCT heading 3808.3010 to 3808.9010 (Serial No.12 of the 6th Schedule). Exemption to weedicides was provided later on at Serial No.17 of the 6th Schedule, without giving retrospective effect.
7. When weedicide was imported by the appellant exemption to Sales Tax was not notified. Subsequent exemption has no retrospective effect. The appellant has failed to convince either of the three forums below that weedicide and pesticides are one and the same product. Weedicides are classified in separate head in Pakistan Customs Tariff. We are not inclined to stretch the meanings of weedicides too far to bring the same within the definition of insecticide. Both the products are separately classified and their use is also for separate purposes.
8. For the foregoing reasons, the instant appeal has no force and the same is dismissed.
S.A K./M-128/LAppeal dismissed.