Customs duty Maaf on hybrid cars, vehicles by supreme court.
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| Customs duty waived on hybrid vihicles |
The following Supreme court judgement is about the waived of custom duty on hybrid vehicles. Heard in July 2022
The The Federal Government, vide S.R.O. 499(I)/2013 dated 12-6-2013,
exempted customs duty, sales tax and with-holding tax on import of
Hybrid Electric Vehicles (HEVs) falling under PCT Code 87.03. pp
But collector of custom issue circular that the only cars are exempted from customs duty which are fully hybrid and have big battery.
And refuse to exempt all the cars which are hybrid,
All the importers appeal to the department but their appeal was rejected by department.
Importers file the case in custom court (tribunal) and their was accepted by court in their favour
But customs official file appeal against the court order. And in appeal the court give decision in the favour of importers.
Customs department the file case in High court and again High court decision was against them.
Finally customs collector file leave to appeal in Supreme court of Pakistan and Supreme court of Pakistan again case decided in the favour of importers.
The case was decided on July 2022 in supreme court.
THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL, CJ
MR. JUSTICE AMIN-UD-DIN KHAN
MR. JUSTICE MUHAMMAD ALI MAZHAR
CIVIL PETITIONS NO. 389, 696 TO 742 OF 2022
(Against the judgment dated 01.12.2021 passed by the
Peshawar High Court, Peshawar, in Custom Reference
Nos.270-P to 317-P/2020)
Collector of Customs,
Model Customs
Collectorate, Peshawar
…Petitioner
(In all cases)
VERSUS
1.
Waseef Ullah and another
(In CP.389/2022)
2.
Akhtar Badshah and another
(In CP.696/2022)
3.
Aurangzeb Khan and another
(In CP.697/2022)
4.
Fazal Rahim and another
(In CP.698/2022)
5.
Niaz Ali Shah and another
(In CP.699/2022)
6.
Muhammad Kashif and another
(In CP.700/2022)
7.
Javid Khan and another
(In CP.701/2022)
8.
Ansar Ali and another
(In CP.702/2022)
9.
Inamullah and another
(In CP.703/2022)
10. Pir Muhammad and another
(In CP.704/2022)
11. Noor Taj and another
(In CP.705/2022)
12. Khalil Ahmed and another
(In CP.706/2022)
13. Ghulam Qadir and another
(In CP.707/2022)
14. Yaseen Khan and another
(In CP.708/2022)
15. Ali Akbar Shah and another
(In CP.709/2022)
16. Irfan and another
(In CP.710/2022)
17. Bakht Zaman and another
(In CP.711/2022)
18. Usman Khan and another
(In CP.712/2022)
19. Ali Rahman and another
(In CP.713/2022)
20. Suleman and another
(In CP.714/2022)
21. Ikram Ullah and another
(In CP.715/2022)
22. Ali Khan and another
(In CP.716/2022)
23. Fazal Subhan and another
(In CP.717/2022)
24. Said Malook Jan and another
(In CP.718/2022)
25. Sajid Muhammad and another
(In CP.719/2022)
26. Khalid Jan and another
(In CP.720/2022)
27. Niazm ud Din and another
(In CP.721/2022)
28. Habib Ullah and another
(In CP.722/2022)
29. Bawar Khan and another
(In CP.723/2022)
30. Israr Khan and another
(In CP.724/2022)
31. Riaz Khan and another
(In CP.725/2022)
32. Habib Ullah and another
(In CP.726/2022)
33. Nabi Roz Khan and another
(In CP.727/2022)
34. Ziarat Khan and another
(In CP.728/2022)
35. Musa Khan and another
(In CP.729/2022)
36. Zahir Khan and another
(In CP.730/2022)
37. Muhammad Ismail and another
(In CP.731/2022)
CPs.389, 696-742/2022
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…Respondents
For the Petitioner:
Mr. Abdul Rauf Rohaila, Sr. ASC
For the Respondents:
N.R.
Date of Hearing:
06.07.2022
JUDGMENT
MUHAMMAD ALI MAZHAR, J. The aforesaid forty-eight Civil
Petitions for leave to appeal are directed against the common
judgment dated 01.12.2021 passed by the learned Peshawar High
Court in Custom Reference Nos. 270-P to 317-P/2020, whereby the
Reference Applications were answered in the negative in favour of
the respondents, and against the petitioner.
2. The tersely enunciated facts of these civil petitions are as under:-
The Federal Government, vide S.R.O. 499(I)/2013 dated 12-6-2013,
exempted customs duty, sales tax and with-holding tax on import of
Hybrid Electric Vehicles (HEVs) falling under PCT Code 87.03.
During the audit, the Deputy Collector Customs (Import) Dry Port,
Model Customs Collectorate, Peshawar observed that used Hybrid
Suzuki, Hustler, Wagon-R, Mazda, Cross-over, Suzuki IGNIS were
cleared illegally on 50% exemption of duty and taxes in terms of
SRO 499(I)/2013 dated 12-6-2013. Show cause notices were issued
to the importers and Customs Clearing Agents under section 32 (3A)
of Customs Act 1969 read with Section 3(1) of Imports and Exports
(Control) Act, 1950, Section 3(1)(b) of Sales Tax Act, 1990, Section
148 and 182 of the Income Tax Ordinance, 2001 and section 33(5)
of Sales Tax Act, 1990 and after submission of replies, the Deputy
Collector Customs (Adjudication) through Order-in-Original upheld
the show cause notice. The respondents preferred appeals to the
Collector of Customs (Appeals) but all appeals were dismissed,
thereafter, the respondents approached the Customs Appellate
Tribunal and the appeals were allowed, thereafter, the petitioner
filed Customs Reference against the Customs Appellate Tribunal
judgment but all Reference applications were dismissed.
CPs.389, 696-742/2022
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3. The learned counsel for the petitioners argued that the learned
High Court has wrongly held that the Notification S.R.O. 499(I)/2013
dated 12.06.2013 (“S.R.O.”) is applicable to both new and used
imported Hybrid Electric Vehicles (“HEV(s)”), which is contrary to the
Import Policy Order, 2016 in which import of old and used HEVs are
not allowed. It was further contended that during the audit it was
revealed that the duty, taxes and other charges have been short
levied, therefore the importer could be served with a show cause
notice within five years, under Section 32(3A) of the Customs Act
1969 (“Customs Act”), for recovery of the deficit amount of levy, and
the adjudicating authority had rightly issued notice to the importers
that they have availed the exemption wrongly, but both the learned
Tribunal and learned High Court have decided the issue without
proper application of mind.
4. Heard the arguments. The sticking point and bone of contention
between the parties is embryonic vis-à-vis the interpretation of the
S.R.O. and the subsequent circular dated 05.10.2018 issued by the
Assistant Collector of Customs, MCC Appraisement-West, Custom
House, Karachi (“Circular”). For the ease of convenience, both are
reproduced as under:
“GOVERNMENT OF PAKISTAN
MINISTRY OF FINANCE, ECONOMIC AFFAIRS,
STATISTICS & REVENUE
(REVENUE DIVISION)
Islamabad, the 12th June, 2013
NOTIFICATION
(Customs, Sales Tax and Income Tax)
S.R.O.499 (I)/2013.- In exercise of the powers conferred
by section 19 of the Customs Act, 1969 (IV of 1969),
clause (a) of sub-section (2) of section 13 of the Sales Tax
Act, 1990 and sections 53 and 148 of the Income Tax
Ordinance, 2001 (XLIX of 2001), and in supersession of
Notification No. S.R.O. 607 (I)/2012, dated the 2nd June,
2012, the Federal Government is pleased to exempt
customs duty, sales tax and withholding tax on Import of
Hybrid Electric Vehicles (HEVs) falling under PCT Code
87.03, specified in column (2) of the Table below, to the
extent as specified in column (3) thereof, namely:-
S.No.
Engine Capacity
Extent of
exemption in
leviable duty &
CPs.389, 696-742/2022
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2. This notification shall take effect from the 13th day of
June, 2013.
(Mohammad Riaz)
Additional Secretary”
“GOVERNMENT OF PAKISTAN
MODEL CUSTOMS COLLECTORATE OF
APPRAISEMENT WEST
CUSTOM HOUSE, KARACHI
No.SI/MISC/102/218-VI
dated 05.10.2018
CIRCULAR
It is for information of all concerned that the benefit of
exemption from custom duties, sales tax and Income
tax on import of Hybrid Electric Vehicles (HEVs)
under S.R.O.499(I)/2013 dated 12.06.2013 is only
available and extended to Fully Hybrid Vehicles. Only
those vehicles are termed as Full Hybrid, which have
larger batteries and motor to drive the vehicle on EV
(Electric Vehicle) made for certain period of time. The
concession under aforesaid S.R.O. is not being
extended to any other vehicle claimed to be HEV like
Mild/Micro Hybrid vehicles.
(Raissa Kanwal)
Assistant Collector of Customs
MCC Appraisement-West
Group-VII”
5. The S.R.O. dated 12.6.2013 was issued by the Government of
Pakistan in exercise of powers conferred by Section 19 of the
Customs Act, clause (a) of sub-section (2) of Section 13 of the Sales
Tax Act, 1990 (“Sales Tax Act”), and Section 53 and 148 of the
Income Tax Ordinance, 2001 (“ITO 2001”). The nitty-gritties of
Section 19 of the Customs Act make it unequivocally clear that it
communicates the general power of granting exemptions from
customs duties whenever circumstances exist to take immediate
action for the purposes of national security, natural disaster, national
food security in emergency situations, protection of national
economic interest in the situation arising out of abnormal fluctuation
in international commodity prices, implementation of bilateral and
multilateral agreements, etc. In the aforesaid eventualities, the
Government of Pakistan may by notification exempt any goods
imported into or exported from Pakistan from the whole or any part of
the customs duties chargeable thereon and may remit fine, penalty,
charge or any other amount recoverable under the Customs Act. A
similar provision is incorporated under sub-section (2) of Section 13
CPs.389, 696-742/2022
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of the Sales Tax Act, in which also the Federal Government may
exempt any supplies made or import of any goods from the whole or
any part of the tax chargeable under this Act. In tandem, Section 53
of the ITO 2001 is also germane to the exemption and tax
concessions in the Second Schedule, and Section 148 of the ITO
2001 is related to advance tax paid to a collection agent. Within the
precincts of powers, the Federal Government had issued the S.R.O. to
exempt customs duty, sales tax and withholding tax on the import of
HEVs falling under PCT Code 87.03, and the S.R.O. was made
effective from 13.06.2013. During the existence of this S.R.O., the
Assistant Collector of Customs MCC Appraisement-West issued the
Circular dated 5.10.2018 wherein an unjustifiable condition was
sought to be imposed, beyond the purview of the original S.R.O., that
the benefit of exemption of duties and taxes on the import of HEVs
under the S.R.O. is only available to Fully Hybrid Vehicles which
have larger batteries and a motor to drive the electric vehicle.
6. The Deputy Collector, Collectorate of Customs (Adjudication),
Islamabad, issued show cause notices in the year 2019 which were
obviously issued after the dissemination of the Circular. The primary
thrust of the show cause notice was that the aforesaid S.R.O. was
applicable only to Fully Hybrid Vehicles which have larger batteries
and enough power to drive the vehicles, and its benefit was not
applicable to the hybrid vehicles which do not have larger batteries.
The Deputy Collector, in the Order-in-Original, directed the recovery
of taxes and duties along with the imposition of penalty on the
importer and a separate penalty on the clearing agent. This order was
challenged before the Collector of Customs Appeals, who affirmed the
Order-in-Original and also held that the Circular dated 5.10.2018
was not in conflict with the statutory order, but was clarificatory in
nature and finally, the appeal was also dismissed. The appellate
order was assailed by the importers before the Customs Appellate
Tribunal and, vide order dated 27.8.2022, the appeals were allowed
and the order passed in the appeals by the Collector, as well as the
Orders-in-Original were set aside.
7. The learned High Court framed the following questions of law in
CPs.389, 696-742/2022
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i.
Whether as per facts and in the circumstances of the case,
the Federal Government through Notification
SRO.499(I)/2013 dated 12.06.2013 has exempted
customs duty, sales tax and withholding tax on import of
new Hybrid Electric Vehicles (HEVs) to the extent specified
in column (3) of the Notification?.
ii.
Whether as per facts and in the circumstances of the case,
"The Tribunal" has wrongly held that old imported Hybrid
Electric Vehicles (HEVs) imported by respondent No.1 is
entitled for the exemption notified under Notification
SRO.499(I)/2013 dated 12.06.2013?
iii.
Whether as per facts and in the circumstances of the case,
the old and used vehicle imported by respondent No.1 has
wrongly been extended the benefit of SRO.499 (I)/2013
dated 12.06.2013 by "The Tribunal committing gross
illegality?
iv.
Whether as per facts and in the circumstances of the case,
where it is discovered as a result of an audit or
examination of importer's documents, that any duty, taxes
or charge has been short levied, the importer can be
served within five years with notice under section 32(3A) of
"The Act" requiring him to pay the amount specified in the
notice?
v.
Whether as per facts and in the circumstances of the case,
the adjudicating authority has correctly issued notice to
the importer and customs clearing agent under section
32(3A) of "The Act" 1969 read with section 3(1) of the
Imports and Exports (Control) Act, 1950, section 31 (b) of
the Sales Tax, 1990, section 148 of Income Tax Ordinance,
2001 having wrongly availed exemption of S.R.O. 499
(I)/2013?
8. After considering the pros and cons, the learned High Court
answered all the questions in negative in favour of the
respondents, and against the petitioner. The learned counsel for
the petitioner, though accepting the validity of the S.R.O., endeavored
to argue by presenting an altogether new plea that the above S.R.O.
was applicable only to new HEVs which was never the subject matter
in the lower fora, including the learned High Court. Neither was any
plea taken with regard to the Import Policy Order 2016 in the forum
below, nor was any such thing alleged in the show cause notice, nor
were the original proceedings triggered on this count. Even otherwise,
the Import Policy of 2016 cannot be given retrospective effect to take
away or withdraw the relief of exemption extended in the S.R.O. As a
matter of fact, the show cause notice was issued under the garb of
the Circular, wherein the Assistant Collector of Customs innovated a
new criteria that the benefit in the original S.R.O. was only extended
to the Fully Hybrid Vehicles which have larger batteries and a motor
to drive the vehicles, but nothing is mentioned in this regard in the
CPs.389, 696-742/2022
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S.R.O. itself. At the outset, nothing was placed on record as to how
the Assistant Collector of Customs, MCC Appraisement, West GroupVII had any lawful authority to issue such Circular in order to make
an amendment in the original S.R.O. whereby he added certain
strange conditions under the guise of a so-called clarification which
changed the complexion and substratum of the S.R.O. without any
lawful authority. Both the learned Appellate Tribunal and learned
High Court
have rightly discarded this Circular which was
unjustifiably and irrationally approved in the Appellate Order while
describing the Circular as clarificatory in nature. In fact, the Federal
government exempted duties on the import of HEVs falling under PCT
Code 87.03 without any distinction of new or used hybrid vehicles, or
large or small batteries, or with any specific qualification sine qua
non for exemption, so the plea articulated by the learned counsel for
the petitioner is misconceived and beyond the pleadings which was
never set up before any forum below. According to the literature of
the U.S. Department of Energy, accessible through their website, the
technical details of HEVs are as under:
Hybrid Electric Vehicles (HEVs) are powered by an internal
combustion engine in combination with one or more electric motors
that use energy stored in batteries. HEVs combine the benefits of
high fuel economy and low tailpipe emissions with the power and
range of conventional vehicles. Although HEVs are often more
expensive than similar conventional vehicles, some cost may be
recovered through fuel savings or state incentives. In HEVs, the
extra power provided by the electric motor may allow for a smaller
combustion engine. The battery can also power auxiliary loads and
reduce engine idling when the vehicle is stopped. Together, these
features result in better fuel economy without sacrificing
performance. HEVs cannot plug into off-board sources of electricity
to charge the battery. Instead, the vehicle uses regenerative braking
and the internal combustion engine to charge. The vehicle captures
energy normally lost during braking by using the electric motor as a
generator and storing the captured energy in the battery.
[Ref: https://afdc.energy.gov/vehicles/electric_basics_hev.html]
9. The abbreviation “S.R.O.” stands for “Statutory Regulatory Orders”
which in fact refers to genres of government regulations disseminated
through delegated powers under the statutory regime. Insofar as it
relates to taxing statutes, the concessions or exemptions may be
granted through statutory regulatory orders; it may also impose tax
in the form of additional duties and regulatory duties including
exemptions and may lay down the procedural niceties to implement
the laws and amendments in an existing S.R.O. It is clear that the
CPs.389, 696-742/2022
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S.R.O. only classifies HEVs with PCT headings without drawing any
distinction with regard to fully or semi hybrid, or used or new
vehicles, or any specification of large batteries. Anything which tried
to be inferred extraneously or beyond the scope or tenor of the S.R.O.
was not permissible under any rule of interpretation. According to
well-settled canons and rules of interpretation laid down by the
superior Courts time and again, the indispensable and imperative
sense of the duty of the Court in interpreting a law is to find out and
discover the intention of the legislature, and then endeavor to
interpret the statute in order to promote or advance the object and
purpose of the enactment. The S.R.O.
requires purposive
interpretation or construction which complements its effect to the
purpose by following conscientious and exact meaning. S.R.Os are
issued fundamentally in the aid of substantive principles of law set
out in the parent legislation, and to give effect to administrative
directions and instructions for the implementation of the law. If the
words used are capable of one construction only, then it would not be
open to the Courts to adopt any other hypothetical construction on
the ground that such hypothetical construction is more consistent
with the alleged object and policy of the Act. If the words of the
section are plain and unambiguous, then there is no question of
interpretation or construction. The duty of the Court then is to
implement those provisions with no hesitation. When the material
words are capable of two constructions, one of which is likely to
defeat or impair the policy of the Act whilst the other construction is
likely to assist the achievement of the said policy, then the Courts
would prefer to adopt the latter construction. The Court cannot
supply casus omissus and while interpreting a statute, the Court
cannot fill in gaps or rectify defects and cannot add words to a
statute or read words into it which are not there, especially when the
literal reading produces an intelligible result. The legal maxim,
“absoluta sententia expositore non indigent” also reminds us that,
when the language is not only plain, but admits of but one meaning,
the task of interpretation can hardly be said to arise. It is not
allowable to interpret what has no need of interpretation. Whereas
another maxim “generalia verba sunt generalita intelligenda”
expresses that general words are to be understood generally and
what is generally spoken shall be generally understood unless it be
qualified by some special subsequent words or unless there is in the
CPs.389, 696-742/2022
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statute itself some ground for restricting their meaning by reasonable
construction, not by arbitrary addition or retrenchment [Ref: N. S.
Bindra’s interpretation of Statutes (Tenth Edition), (Page No.609-
610) & (Page No.656-657)].
10. It is well established law that the burden rests on the person
who claims an exemption or concession to substantiate that he is
entitled to the same. In a taxing statute, there is no leeway or
probability of any intendment but the manner of interpretation
should be such which undoubtedly or unmistakably comes into sight
from the plain language of the notification with the conditions laid
down in it, but with the caution that the benefits arising from a
particular exemption should not be defeated or negated and, in case
of any ambiguity or mischief, the taxing statute should be construed
in favour of the assessee. By and large, the exemption notification is
interpreted rigidly, but when it is found that the assessee has
satisfied the exemption conditions, a liberal construction should be
made. The doctrine of substantial compliance, though on one hand
premeditated to avoid hardship, simultaneously safeguards the
essential compliance of the prerequisites in which the exemption in
tax or customs duty are invoked. Here we would like to refer to the
relevant excerpts from N. S. Bindra’s interpretation of Statutes (Tenth
Edition), page 1118, with regard to strict construction of taxing
statues, as well as the exemptions accorded therein, as under:
“CHAPTER 23: FISCAL STATUTES
12. STRICT CONSTRUCTION
Taxing Acts must be construed strictly. One must find words to
impose the tax, and if words are not found which impose the tax, it
is not to be imposed. If there are two views possible, the one
favorable to the assessee in matters of taxation has to be preferred.
The assessee should be given the benefit of doubt and the opinion
which is in its favour should be given effect to. In interpreting a
fiscal statute the court cannot proceed to make good deficiencies if
any; the court must interpret the statute as it stands and in the
case of a doubt, in a manner favorable to the tax-payer.
14. EXEMPTIONS FROM TAXATION
It is true that when in a fiscal provision if benefit of exemption is to
be considered this should be strictly considered. However, the
strictness of the construction of exemption notification does not
mean that the full effect to the exemption notification should not be
given by any circuitous process of interpretation. After all,
exemption notifications are meant to be implemented. They have to
be interpreted strictly and in its entirety and not in parts. Where an
exemption is conferred by a statute by an exemption clause, that
CPs.389, 696-742/2022
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clause has to be interpreted liberally and in favour of the assessee
but must always be without any violence to the language used. The
rule must be construed together with the exemption provision,
which must be regarded as paramount. If the tax-payer is within
the plain terms of the exemption it cannot be denied its benefit by
calling in aid any supposed intention of the exempting authority.
The apex court has held that excise department could not deny the
benefit of an exemption notification to the respondents on the
reasoning that to get the benefit, the ingots must be manufactured
from ore 100% made in the factory of the assessee, when the
exemption notification contained no indication to such effect. A
provision intended for the benefit of the taxpayer must be construed
liberally in favour of the tax-payer.
Claims of exemption must fall within the four corners of the
exemption provision. One of the settled principles of construction of
the an exemption notification is that it should be construed strictly
but once a good is found to satisfy the test by which it falls in the
exemption notification then it cannot be excluded from it by
resorting to applying or construing such notification narrowly and
once the good is to fall even narrowly in any of these categories
there appears no justification to exclude it”.
11. The survey of the judgment rendered by this Court in the case of
Jamat-i-Islami Pakistan Vs. Federation of Pakistan (PLD 2000
Supreme Court 111), demonstrates that the statutes must be
intelligibly expressed and reasonably definite and certain and it is the
duty of the Court to find out the true meaning of a statute while
interpreting the same. While in the case of Government of Pakistan
and others Vs. Messrs.’ Hashwani Hotel LTD (PLD 1990 Supreme
Court 68), it was held that the plain ordinary meaning of the word is
to be adopted in construing a document. This judgment also refers to
the case of Pakistan Textile Mill Owners Association Karachi V.
Administrator of Karachi (PLD 1963 Supreme Court 137), wherein it
was observed that in a taxing statute, as in any other statute, there is
no reason to depart from the general rule that words used in a
statute must first be given their ordinary and natural meaning.
Whereas in the case of Pakistan through Chairman FBR and others
Vs. Hazrat Hussain and others (2018 SCMR 939), this Court held
that the power of granting exemptions is discretionary, it is equally
true that the said power cannot be exercised in a discriminatory
manner. Exemptions are to be granted and regulated in terms of
consistent policies for sound reasons. In the case of Mathuram
Agrawal. Vs. State of Madhya Pradesh (AIR 2000 SC 109), the Court
held that the intention of the legislature in a taxation statute is to be
gathered from the language of the provisions particularly where the
language is plain and unambiguous. Equally impermissible is an
CPs.389, 696-742/2022
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interpretation which does not follow from the plain, unambiguous
language of the statute.
12. In the present state of affairs, exemption of customs duty, sales
tax and withholding tax on Import of Hybrid Electric Vehicles (HEVs)
falling under PCT Code 87.03, specified in column (2) of the Table to
the extent as specified in column (3) in terms of S.R.O.499 (I)/2013,
dated 12.6.2013 could neither be denied nor circumvented on the
basis of subsequent circular dated 5.10.2018, issued by the
Assistant Collector of Customs. It is well settled exposition of law that
if the tax-payer is entitled for exemption in plain terms of
notification, then the department could not deny the benefit of an
exemption which was intended for the benefit of the taxpayer so it
should be construed accordingly.
13. At this juncture, we cannot lose sight of the raison d'être of
promulgating the Pakistan Climate Change Act, 2017
which
envisions compliance with international conventions relating to
climate change and adoption of comprehensive mitigation policies,
plans, programmes, projects and other measures required to address
the effects of climate change. In the definition clause, "climate
change" means a change in the climate system which is caused by
significant changes in the concentration of greenhouse gases as a
direct or indirect consequence of human activities and which is in
addition to natural climate change that has been observed during a
considerable period; whereas "emissions", in relation to greenhouse
gas, means emissions of that gas into the atmosphere caused by
human activity; while "greenhouse gas" means any gas that
contributes to the greenhouse effect by absorbing infrared radiation
produced by solar warming of the earth's surface and includes
carbon dioxide, methane, nitrous oxide, hydrofluorocarbons,
perfluorocarbons, sulphur hexafluoride, nitrogen trifluoride and any
other direct or indirect greenhouse gas as recognized by UNFCCC and
IPCC from time to time. The function of the Council includes the
obligation to co-ordinate, supervise and guide the mainstreaming of
climate change concerns into decision-making by Federal and
Provincial Governments to create enabling conditions for integrated
climate-compatible and climate-resilient development processes in
various sectors of the economy; approve and monitor implementation
of comprehensive adaptation and mitigation policies, strategies,
CPs.389, 696-742/2022
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plans, programmes, projects and other measures, whereas the
Functions of the Authority
encompasses the formulation of
comprehensive adaptation and mitigation policies, plans,
programmes, projects and measures designed to address the effects
of climate change and meet Pakistan's obligations under
international conventions and agreements relating to climate change
and within the framework of a national climate change policy as may
be approved by the Federal Government from time to time; establish
institutional and policy mechanisms for implementation of Federal
and provincial adaptation and mitigation policies, plans,
programmes, projects and measures, including plans for renewable
energy and clean technology measures for energy efficiency and
energy conservation and awareness-raising and capacity-building
programmes; carry out a Technology Needs Assessment and prepare
a Climate Change Technology Action Plan in accordance with
international best practices for seeking technical and financial
support etc. The Schedule appended with reference to Sections 2, 4,
17 and 18 to the aforesaid Act integrates the United Nations
Framework Convention on Climate Change (UNFCCC), Rio De
Janeiro, 1992; Kyoto Protocol to the UNFCCC, 1997; The Paris
Agreement, 2015; including any other agreement relating to climate
change to which Pakistan is a signatory.
14. In unison, the Pakistan Environmental Protection Act (PEPA),
1997 also ropes in various provisions for protection, conservation,
rehabilitation and improvement of the environment, and for control of
pollution, promotion of sustainable development, conservation,
rehabilitation, improvement of the environment, prevention and
control of pollution, promotion of sustainable developments which
has close proximity and nexus to the Pakistan Climate Change Act,
2017. In this Act too, "pollution" means the contamination of air,
land or water by the discharge or emission or effluents or wastes or
air pollutants or noise or other matter which either directly or
indirectly or in combination with other discharges or substances
alters unfavourably the chemical, physical, biological, radiational,
thermal or radiological or aesthetic properties of the air, land or water
or which may, or is likely to make the air, land or water unclean,
noxious or impure or injurious, disagreeable or detrimental to the
health, safety, welfare or property of persons or harmful to
Ps.389, 696-742/2022
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biodiversity. Section 12 of this Act is directly related to the regulation
of Motor Vehicles which provides that no person shall operate a
motor vehicle from which air pollutants or noise are being emitted in
an amount, concentration or level which is in excess of the National
Environmental Quality Standards or, where applicable, the standards
established under clause (g) of sub-section (1) of section 6 and for
ensuring compliance with the standards mentioned in sub-section
(1), the Federal Agency may direct that any motor vehicle or class of
vehicles shall install such pollution control devices or other
equipment or use such fuels or undergo such maintenance or testing
as may be prescribed. Last but not least, under Section 31, the
Federal Government is vested with the powers to make rules
including the rules for implementing the provisions of the
international environmental agreements, specified in the Schedule to
this Act which includes International Plant Protection Convention,
Rome, 1951; Plant Protection Agreement for the South-East Asia and
Pacific Region (as amended) Rome 1956; Agreement for the
Establishment of a Commission for Controlling the Desert Locust in
the Eastern Region of its Distribution Area in South-West Asia (as
amended), Rome, 1963; Convention on Wetlands of International
Importance Especially as Waterfowl Habitat, Ramsar, 1971 and its
amending Protocol, Paris, 1982;
Convention Concerning the
Protection of World Cultural and Natural Heritage (World Heritage
Convention), Paris, 1972; Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES), Washington,
1973; Convention on the Conservation of Migratory Species of Wild
Animals, Bonn, 1979; Convention on the Law of the Sea, Montego
Bay, 1982; Vienna Convention for the Protection of the Ozone Layer,
Vienna, 1985; Montreal Protocol on Substances that Deplete the
Ozone Layer, Montreal, 1987 and amendments thereto; Agreement on
the Network of Aquaculture Centres in Asia and the Pacific, Bangkok,
1988; Convention on the Control of Transboundary Movements of
Hazardous Waste and Their Disposal, Basel, 1989; Convention on
Biological Diversity, Rio De Janiero, 1992 and United Nations
Framework Convention on Climate Change, Rio De Janiero, 1992.
15. In a nutshell the niceties of both the laws are intermingled and
focused on the commitments and responsibility of the concerned
Council and Authority constituted under the Acts to make sincere
CPs.389, 696-742/2022
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efforts to ensure the prevention and control of pollution, promotion of
sustainable development, conservation, rehabilitation, improvement
of the environment and address the effects of climate change in our
country with a further obligation to implement different conventions
and treatise. The mere legislation of laws without effective
implementation and execution is useless and ineffectual. Instead,
sincere efforts are required by the concerned authorities to safeguard
the climate and reduce the adverse environmental impact of human
activity. According to the U.S Department of Transportation Report,
updated on 24.8.2015, motor vehicles are a leading source of air
pollutants that affect human health. Vehicle emissions contribute to
the formation of ground level ozone (smog), which can trigger health
problems and increased susceptibility to respiratory illnesses. The
aforesaid report further articulates that the levels of traffic related air
pollution are higher near major roadways that have high traffic
volume but the air quality may be improved through HEVs. Different
research documents also suggest that toxic pollutants in the air or
deposited on soils or surface waters can impact wildlife in a number
of ways. Like humans, animals can experience health problems if
they are exposed to sufficient concentrations of airborne toxins over
time. It can also damage crops and trees in a variety of ways.
Ground-level ozone can lead to reductions in agricultural crop and
commercial forest yields, reduced growth and survivability of tree
seedlings, and increased plant susceptibility to disease, pests and
other environmental stresses.
16. The technology of HEVs is well accepted and internationally
acclaimed technology in the modern world. Besides being fuel efficient,
it is also an alternative solution to cautiously concentrate on the issue
of global warming. The proper and futuristic use of this technology will
progress our country, and will not only improve and recuperate the
atmosphere and ecosystem, but also alleviate destructive facets of
climate change by lessening smoke emissions in order to effectively
implement the Climate Change Act of 2016 and the Pakistan
Environmental Protection Act (PEPA), 1997. Though the S.R.O.
granting exemption on HEVs does not specifically encapsulate this
particular purpose but, on the face of it, the exemption on the import
of HEVs was logically issued for protection against climate change,
and to minimize its adverse impact in the future wh
CPs.389, 696-742/2022
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forward towards the implementation and compliance of Pakistan
Environmental Protection Act (PEPA), 1997. It is also the need of the
time and a pressing priority to promote and encourage HEVs more
and more, rather than applying irrational interpretations resulting in
unwarranted restrictions on the exemption already in field.
17. In the wake of the above discussion, we do not find any
irregularity or perversity in the impugned judgment passed by the
learned Peshawar High Court. Accordingly, these Civil Petitions are
dismissed and leave is refused.
Chief Justice
Judge
Judge
Islamabad the
6th July, 2022
Khalid
Approved for reporting.
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