1. ORDER MS. RUKHSANA, AHMAD, J. - Through instant application, learned counsel for the plaintiff has prayed that Defendant may be restrained from interfering in the right of the Plaintiff to export poly- bags made, from Polyethylene Vinyl Acetate (PEVA) sheets to 'Tariff Area" and or any foreign country.
2. In support of the application, learned counsel for the plaintiff at the onset has argued that the plaintiff is an "industrial undertaking and an investor" in accordance with Section 2 of the Export Processing Zone Authority Ordinance, 1980 and is amongst top 25 exporters having 150 employees.
3. He further argued that Export Processing Zones are created for the purpose of facilitating investors foreign and domestic and to provide them a dedicated area from which they are allowed to conduct their business with ease in Pakistan and such Zones are exempted from Custom Duty as well as Sales Tax for all goods imported and exported into these zones vide SRO 881(1)/80, dated 23rd August 1980. However, he further argued that according to SRO 882(1 )/80, dated 23.8.1980 the Central Board of Revenue has authorized the repayment of customs duties and sales tax paid on the raw materials used in the manufacture of goods admitted into the Export Processing Zones. He further argued that all the investments in the Zones are required to be made in foreign currency and the Zones are exempted vide SRO No. 1332(1 )/81, dated 31.12.1981 from the ambit and scope of the Foreign Exchange Regulation Act, 1947 so as to facilitate the free flow of direct foreign investment into Pakistan. Therefore, all the banking transactions are performed in foreign currency and even payments to workers and managerial staff for service rendered within the Zones are made in Rupees after the surrender of equivalent monies in foreign currency. Learned counsel for the plaintiff further argued that the Defendant vide letter dated 04.05.1993 unconditionally allowed the plaintiff to establish multi-purpose diversified and wide range activities under the single facility.
4. However, he has annexed list as Annexure-B/1 whereby he pointed out that Garment Accessories and any other products to be' developed from time to time are listed as business/investment activities which could be undertaken by the plaintiff in the Zone.
5. It is further argued that plaintiff in order to economize the costs of production and to make manufacturing process eco-friendly requested the Defendant for permission to manufacture corrugated cartons vide letter dated 27.09.2004 for the sole purpose of utilizing the same in packing of garments for export. However, the Defendant accepted the proposal of the plaintiff and vide letter dated 30.09.2004 allowed the plaintiff to undertake additional activity for production of corrugated cartons and readymade garments (jackets, pants, shorts, shirts, garment accessories etc.).
6. Subsequently the Defendant vide letter dated 27.6.2005 approved/sanctioned the manufacturing of "Polyester padding, quilts, fiber products, garments accessories, bonded fiber etc. And other wide range of diversified products line and corrugated cartons, readymade jackets, pants, shorts, shim, garment accessories. Hence the plaintiff installed the machines at its factory for manufacturing environmental friendly poly bags for its own use and export to the local and foreign market and further it is submitted, that these poly bags form an integral part of the industrial process and their local manufacture precludes the need to import these from .Other parts of the world and this has obvious cost benefits to the plaintiff and thus this process does not require any further sanction.
7. The Plaintiff therefore imported 18 environmental friendly heat sealing machines for heat sealing of the polyethylene Vinyl "Acetate (PEVA) sheets into poly bags. Such poly bags are distinguishable from others in view of their environmental friendly approved manufacturing process and materials.
8. It is further argued that Defendant having allowed the import and entry of PEVA pre-fabricated sheets and rolls, surprisingly refused the same entry of the 18 heat sealing machines on the pretext that the heat sealing of environmental friendly poly bags on the ground that such machines are not part of the approved line of production of the plaintiff. However, upon such refusal the plaintiff filed an application being C.M.A. No. 7111/2010 with a prayer for directions to the Defendant to mandatory allow the entry of the 18 heat sealing machines which application was granted in favour of the plaintiff by this Court vide order dated 17th August, 2010, but the Defendants in disregard upon the order dated 17.08.2010, compelled the Plaintiff to file a contempt application against the officials of the Defendant.
9. Upon the hearing of this application this Court directed personal appearance of the Defendant's Director Investment Promotion who was directed to comply with the order dated 17th August, 2010 but the same was not complied with. Again another contempt application was filed by the Plaintiff and during the pendency of that application this Court directed Sindh Environmental Protection Agency to inspect the premises of the plaintiff for environmental audit, which was duly done by SEPA and a Report was filed with the Nazir of this Court and it is annexed with Nazir's Report dated 14.10.2010, wherein it is inter alia reported that physically there is no any health hazardous noted inside the factory during the site visit and further that PEVA sheets used in making of the poly bags have no toxicological effect. However, learned counsel further argued that upon recommendation of SEPA, Environmental Certified Laboratory was requested to prepare a report on the potential environmental hazards if any, of the material used by the plaintiff in its manufacture of PEVA poly bags, the Environmental Lab. (Pvt.) Limited (GEL) duly certified that, "After thorough investigation, analysis and evidences we are fully satisfied that Poly Ethylene. Vinyl Acetate (PEVA) as material and in sheet form does not pose any threat to Environment. It does not add to pollution." Therefore, in view of the above circumstances, the learned counsel argued that Defendant is now unlawfully without any just cause is seeking to restrain the Plaintiff from exporting these environmentally friendly PEVA poly bags and hence learned counsel for Plaintiff requested for grant of the instant application.
10. In rebuttal learned counsel for the Defendant argued that plaintiff has a past criminal history, he then referred to different criminal activities allegedly committed by the Plaintiff. Be that it may I would not like to discuss the same at this moment and would only focus on the submissions agitated by learned counsel for the Defendants to the instant application. Learned counsel argued that Plaintiff is manufacturing PVC bags which means Poly Vinyl Chloride which is hazardous in nature and causes lungs cancer. The Production of PVC bags is prohibited throughout the world but the plaintiff is manufacturing the same in Pakistan. All the Reports he has annexed in respect of PEVA which is Polyethylene Vinyl Acetate. The plaintiff has nothing to do with PEVA. His entire production is Poly Vinyl Chloride which is banned allover the world. He further argued that there is no dispute about PEVA but the only objection is on use of PVC which the Plaintiff has imported and further that the Plaintiff has made request for no objection on export of PVC and not for PEVA. He further argued that the application for contempt has been disposed of by this Court. He further argued that Report of SEPA is in respect of PEVA and not of PVC which is a banned product all over the world and causes cancer. Even China has stopped use of PVC. However, the plaintiff was allowed gate pass for entry of PVC sheet conditionally under Court orders. He therefore prayed for rejection of the present application.
11. I have heard both the learned counsels and have perused the material placed on record and during the course of hearing on 5th November, 2010 the Plaintiff Advocate presented before this Court the original certificate from GEL; Global ENVIRONMENTAL Laboratory (Pvt.) Limited, dated 22nd September, 2010 which was the competent authority/agency being listed on the panel of certification as Environmental Laboratories in Sindh with the Environmental Protection Agency of Pakistan which has certified upon investigation, analysis and evidences that PEVA Poly Ethylene Vinyl Acetate as material and in sheet form does not pose any threat to Environment. It does not add to pollution.
12. This exercise was done by the Plaintiff on the recommendations of the Director Lab. (EPA)
13. Environment Health & Safety who had given in their report to Nazir on Court orders the same is placed on record of this file with Nazir Report in which they had concluded their findings that they had after checking the finished goods products of the Plaintiff found in his possession and had given a clear chit to the Plaintiff with the remarks:-- "It is observed that physically there is no HEALTH HAZARDOUS noted inside the factory during the site visit."
14. And further in its recommendations had directed the Plaintiff to conduct Environmental Audit through Environmental Consultants reading the1; ambient air quality and Environmental Management Plan of the factory, upon which the exercise was also conducted by the Plaintiff and a certificate was obtained thereafter giving the clearance in favour of plaintiff. .
15. It is upon going through the findings of both these authorities, the Court has come to the conclusion that the Plaintiff had not committed any irregularities in the manufacture/production of bio-degradable poly bags for utilizing the same in packing of its products by maintaining and remaining within the eco-friendly system as recommended/provided under the law I had therefore, allowed the Plaintiffs application, by restraining the defendants from interfering in the right of the Plaintiff to, export, poly-bags made from Polyethylene Vinyl Acetate (P.E.V.A.) sheet into the "Tariff Area" and to and foreign country, by passing a short order on 05.11.2010.