Commissioner of Customs and Excise v. Tarnal Industries Ltd., Civ. Case 32-D-67, 16/8/67, Georges C. J.

Commissioner of Customs and Excise v. Tarnal Industries Ltd., Civ. Case 32-D-67, 16/8/67, Georges C. J.

In April 1965 defendant wrote plaintiff Commissioner requesting a ruling as to whether a certain product described as “sodium salt of the fatty acids” was subject to import duty; a sample of the product was enclosed in the letter. Thereafter, plaintiff informed defendant by letter that the product was free of duty under tariff item 108 (k) of the First Schedule to the Customs Tariff Ordinance, and in July 1965, it was so listed in the Gazette. In November 1966, plaintiff notified defendant that the product should have been classified as soap under item 105 of the First Schedule and demanded payment of the duty on all shipments which had been made during the previous year. In December 1966 another notice was sent demanding an additional payment with respect to one of the shipments, more that one was evidence that , although the product contained impurities and would be processed further at defendant’s plant, 80 percent of it was chemically classifiable as soap, and that the product me the specifications of the Central Tenders Board governing the purchase of soap by the government.

            Held: (1) The word “soap” should be interpreted in the sense that businessmen dealing with the Customs and Excise Department would understand it. It should not be given a purely chemical definition. (2) Still, the word should not be defined as that which is bought and sold on the commercial marked as “soap” this definition is also inadequate. (3) As used in the Schedule , “soap” means “a cleansing agent ….. consisting essentially of sodium salt of fatty acids” (Referring to Webster’s Dictionary.) (4) The product in question can reasonably be defined as soap or as “sodium salt of fatty acids.” (5)If a product can reasonably be classified under two or more items of the First Schedule to the Customs Tariff Ordinance, the Commissioner must classify it so as to made it subject to the highest rate of duty. [East African Customs Management Act, 1952, s. 105]. (6) An official cannot be estopped from performing a statutory duty. [ Citing Maritime Electric Co. Ltd. v. General Diries Ltd.,  (1937) 1 All E. R. 748; South end-on-Sea Corporation v. Hodgson (Wickford) Ltd., (1961) 2 All E.R. 46.] Therefore , plaintiff is estopped neither by his letter nor by the statement in the Gazette from classifying the product as soap. (7) Section 118 of the East African Customs Management Act, 1952, requires that a demand for additional duty be made within twelve months of the date on which payment was due. Therefore, the Commissioner could not in December 1966 demand an additional payment with respect to the shipment in question.