MAQBOOL BAQAR, J.---The petitioners preferred the instant petitions against the judgment dated 23.4. 2018 rendered by the learned High Court of Sindh in Constitution Petitions Nos.D-7375 of 2017 and others, reported as Messrs Marosh and others v . Federation of Pakistan and others (2018 PTD 1787 ).
2. Brief facts of the case are that the respondents were engaged in the business of importing tiles and sanitary fixtures and fittings (the Goods) from the Peoples Republic of China. The goods were given an exemption from customs duties in excess of 37.5% under Statutory Regulatory Order No. 497(1)/2009 ("SRO 497"). The petitioners, however , issued another Statutory Regulatory Order (SRO ), namely SRO 1035(1)/2017. This SRO, i.e. SRO 1035 imposed additional regulatory duties on a variety of items, including the goods that were earlier exempted from duties in excess of 37.5% by virtue of SRO 497, The respondents challenged the additional duties that the petitioners sought to impose under SRO 1035 before the Sindh High Court, The High Court vide judgment dated 23,04.2018 ("impugned judgment") held that the exemption from customs duties extended by SRO 497 would be unaffected by the subsequent SRO, i.e. SRO 1035. The duties imposed by the latter were declared to be untenable and the petitioners were directed to return or adjust the amounts so recovered.
3. Mr. Kafeel Ahmed Abbasi, learned ASC assailed the impugned judgment and mounted a multifarious challenge thereto. He contended that SRO 497 was no longer in field and the same stood superseded by SRO 1035. He further argued that customs duties were distinct from regulatory duties and SRO 497 only granted exemption from customs duties in excess of 37.5% whereas regulatory duties lay beyond the ambit of the said SRO. He, thus, argued that there can be no cavil on the petitioners' right to impose regulatory duty on the respondents.
4. The present controversy hinges upon three distinct yet related questions. These questions pertain to (1) the difference between customs and regulatory duty, (2) the nature and scope of the exemptions extended by virtue of SRO 497, and (3) the validity of SRO 497 after the issuance of the subsequent SRO, namely SRO 1035.
5. This Court had the occasion to dilate upon the distinction between customs duty and regulatory duty in Collector of Customs and others v . Ravi Spinning Ltd. and others (1999 SCMR 412 ) wherein it held: "The statutory duty prescribed under the First Schedule to the ;Act has nexus only with the duty levied under section 18(1) of the Act. Therefore, on the language of these SROs, it is not possible to hold that the exemption granted under these notifications also applied to the customs duty levied in addition to the statutory duty under section 18(2) of the Act or under other laws for the time being enforced. We have already pointed out earlier in this judgment that in contradiction to the customs duty levied under section 18(1), of the Act, which is prescribed and predetermined, the regulatory duty is neither prescribed nor pre-determined but is levied at a rate which may vary according to the circumstances, Therefore, regulatory duty imposed by the Govern ment under section 18(2) of the Act though a species of customs duty, is a duty in addition to the duty prescribed under the First Schedule to the Act to meet a particular situation, not covered by the statutory duty ."
6. This reasoning was affirmed in Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842 ) and it was held as under: "5. Under section 18 of the Customs Act, 1969, customs duties are levied under different nomenclatures. Under section 18(1) statutory customs duty is imposed whereas under section 18(2) (after amendment regulatory duty is covered under section 18(3) of the Customs Act) the legislature has empowered the Federal Government to impose regulatory duty through notifications. Therefore, statutory duty under section 18(1) and regulatory duty under section 18(2) are two distinct categories of duties. One should not be taken to be the same as the other . It is by now well settled by the judicial pronouncements of this Court that where import or export of any commodity enjoys exemption from statutory customs duty, even then the Federal Government can impose regulatory duty, within the confines described in section 18(2) of Customs Act through subordinate legislation. Where the legislature grants exemption from the payment of customs duty that falls under section 18(1), the same cannot be made basis to avoid payment of regulator duty imposed subsequently unless there is also a promise that such concession would also be applied to regulatory duty in case it is levied in future. As the exemption in the present case does not contain such a promise it is to be applied only to duty that was chargeable under section 18(2) and not to a duty which can be competently levied under a dif ferent nomenclature."
7. Having held that customs duty is distinct and separate from regulatory duty, there is (other factors notwithstanding) no restriction on the government's power to impose regulatory duty on certain goods even when said goods are exempt from customs duty. The real question would then be as to whether SRO No. 497 only offered exemptions as regards the imposition of customs duty and thus allowed the government to impose regulatory duty in the future or whether it also shielded the respondents from the imposition of future regulatory duties so long the said SRO was in the field.
8. It is trite law that the language, tone and tenor of the SRO itself would indicate whether the intention therein was to merely exempt the imposition of customs duty, or also to preclude the imposition of future levies. We have recognized this principle in Ravi Spinning (Supra), wherein it was held: "We now take up the cases covered by SRO No. 108(1)/95, dated 12.02.1995. These cases/appeals arise from the judgment of Peshawar High Court, dated 23.02.1997. We have already reproduced earlier in this judgment the text of SRO 108(1)/95, dated 12.02.1995. This SRO is valid for a period of 5 years from the date of its issue. The Government while granting exemption from payment of customs duty to the industrialists under this notification firstly , made no reference to the duty of customs prescribed in the 1st Schedule to the Act as was done in other SROs. Secondly , the expression used in this notification is "from whole of the customs duties" which is identical to the language used in the notification which came up for consideration before this Court in the case of Assistant Collector of Customs v. Gadoon Textile Mills (supra). Therefore, keeping in view the tenor of the language of the notification and the fact that the notification was valid for a period of 5 years from the date of its issue, the conclusion arrived at by the learned Judges of Peshawar High Court that the language used in the exemption notification covered the future levy of additional customs duty as well appears to be correct. We, accordingly , hold that in respect of the goods covered by SRO No: 108(1)/95, dated 12.02.1995, the regulatory duty imposed by SRO No. 1050(1)/95, dated 29.10.1995 was not recoverable." (Emphasis supplied)
9. Reference to the case of Government of Pakistan and others v. Sail Textile Mills (2003 PTD 335) also may be beneficial in this regard. A bare reading of SRO 497 reveals that the exemptions granted under the said SRO extended to "the whole of customs duties in excess of the rates specified." Thus, in view of the dicta laid by the Court in the cases cited above, the benefits accrued under SRO 497 pertained not only to the imposition of customs duties but also to the imposition of regulatory duties.
10. We would now like to consider the question of repeal, i.e. did the subsequent SRO repeal SRO 497, so as to render the protection from future regulato ry duty redundant. Upon a perusal of SRO 1035, it was observed that a number of previous SROs stood superseded by it. For ease of reference, the relevant excerpt is reproduced here: "SRO 1035(I) 2017 ---In exercise of the powers conferred by subsection (3) of section 18 of the Custom s Act, 1969 (IV of 1969), and in supersession of its Notification Nos. SRO 482(1)/2009 dated the 13th June, 2009, SRO 808(1)/2009 dated the 19th September , 2009, SRO 214(1)/2010 dated the 29th March, 2010, SRO 568(1)/2014 dated the 26th June, 2014, SRO 1043(1)/2014 dated the 25th November , 2014, SRO 254(1)/2015 dated the 30th March, 2015, SRO 393(1)/2015 dated the 30th April, 2015 and SRO 1248(1)/2015 dated the 17th December , 2015 the Board, with approval of the Federal Minister-in-Charge is pleased to levy regulatory duty on import of goods specified in column (3) of the Table below , falling under the PCT Code of the First Schedule to the said Act specified in column (2) of the said Table, at the rates specified in column (4) thereof."
11. As is evident from the excerpt quoted above, SRO 497 was not expressly repealed by the subsequent SRO.
Thus, the petitioners admittedly rely on the notion of implied repeal, arguing that since the provisions of SRO 1035 were fundamentally dif ferent from those of SRO 497, the latter was impliedly repealed.
12. The implied repeal doctrine is one of the oldest canons of statutory interpretati on, whose earliest articulation is found in Lord Coke's decision in Dr. Foster's case (1614) 77 Eng. Rep. 1222, 1232 (K.B.) In its traditional formulation, implied repeal has been understood to be a very narrow doctrine that reconciles older and newer enactments by minimally paring back older law where there is no plausible understanding of the laws that can avoid the inconsistency . [Theodore Sedgwick, a treatise on the rules which govern the interpretation and application of statutory and constitutional Law 123-24 (New York, John S. Voorhies 1857)] Courts apply this doctrine rarely because it is limited to reconciling laws that are so "plainly repugnant" to one another that they are incapable of coexisting. Even when faced with plainly incompatible enactments, the doctrine allows for only the most modest displacement of the earlier law. This narrow formulation of implied repeal has had a long and steady history . There has always been a strong presumption against implied repeal. This doctrine came up for consideration before the High Court of Australia in Share Gold v. Tanner (2002 76 ALRJ 808), wherein, a five member bench quoted with approval, its earlier judgment in Saraswati v . The Queen (1991 172 CLR 1) that; "It is a basic of construction that in the absence of express words an earlier statutory provision is not repealed altered or derogated from by a latter provision unless an intention to that effect is necessary to be implied. There must be very strong grounds to support that indication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlapped, one should be read as subject to the other ."
13. This Court in the case of Tanveer Hussain v. Divisional Superintendent Railways (PLD 2006 SC 249), has laid down the following prescription for the above doctrine to operate: The necessary conditions of an implied repeal of an earlier statute or a provision thereof by a later statute are that; firstly , the two statutes cannot stand or co-exist together; secondly , to stand side by side, they will lead to absurd consequences; and thirdly , when the entire subject matter of the earlier statute or a provision thereof is taken away by the later statute."
14. When we apply the aforementioned tests to the facts of the instant case it transpires that there seems to be no inconsistency between the SRO 1035 and SRO 497, The SRO 1035 seeks to impose levies on certain goods pursuant to Customs Act under section 18(3), whereas SRO 497 provides an exemption in the circumstance said goods have been imported from the Peoples Republic of China. The provisions of SRO 497 are not repugnant to those of SRO 1035, the two standing together do not lead to any absurd consequ ences and finally it is definitely not the case of the entire subject matter of SRO 497 being taken away by SRO 1035.
15. The High Court in the impugned judgment has thus rightly held that: "Therefore, it is observed that since the two SROs when read together are not hit by any of the three tests, prescribed in Muhammad Sheraz, therefore, no case has been made out to suggest that SRO 497 has been impliedly repealed by SRO 1035."
16. Even otherwise, the onus of establishing the conditions of implied repeal lies on the party asserting that a previous law has been impliedly repealed. In the present case, the petitioners have been unable to establish the existence of the conditions identified in Tanveer Hussain (supra). It is further held that there is presumption against implied repeal and the doctrine cannot be accepted in a broad brush manner .
17. Thus, in the facts and circumstances of the present case, it may be held that: a. While regulatory duty is distinct from customs duty, SRO 497 provided exemption from the "whole of duties" exceeding 37.5%. This includes regulatory duties. b. SRO 497 continues to hold the field and as such no additional levies exceeding 37.5% can be imposed on the respondents under SRO 1035.
18. In view of the foregoing, we do not find any illegality or infirmity in the impugned judgment warranting interference by this Court. The petitions are therefore dismissed.