SHAKEEL AHMAD. J. The petitioners herein have filed this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seeking the following relief:- "It is most respectfully prayed that writ under Article 199 (1), (a) & (c) may be issued to the following effects: a. Declare, that the action of the Respondents regarding denial of the exemption of the SRO No.499(l)/2013 dated 12th June 2013, to the Petitioners on the basis of Public Notice dated 20.01.2023, is illegal, unlawful and without lawful authority and direct the Respondents for immediate release of the petitioners vehicles by extending the exemption of the SRO read with the judgment dated 06.07.2022, passed by the Hon'ble Supreme Court of Pakistan and the judgment dated 01.12.2021, passed by the Hon'ble High Court, Peshawar. b. Declare that no tax could be lawfully charged, levied and/or collected save by or under the authority of an Act of Parliament and not by way of Public Notice, Office Order or clarification including the changes in the classification by classification committee. c. Declare that under the SRO No.499(l)/2013 dated 12th June 2013 read with the judgment dated 06.07.2022, passed by the Hon'ble Supreme Court of Pakistan and the judgment dated 01.12.2021, passed by the Hon'ble High Court, Peshawar, the petitioners are entitled to avail the exemption of the SRO. d. Declare in the alternative that Public Notice dated 20.01.2023, is inapplicable to be its inconsistency with its parent Act/statute, or, provisions, stipulated under the SRO or with the judgment dated 06.07.2022, passed by the Hon'ble Supreme Court of Pakistan and the judgment dated 01.12.2021, passed by the Hon'ble High Court, Peshawar. e. Declare in the alternative that the Respondent No.6, while issuing Public Notice dated 20.01.2023, having failed to consider the provisions of the SRO, read with the judgment dated 06.07.2022, passed by the Hon'ble Supreme Court of Pakistan and the judgment dated 01.12.2021, passed by the Hon'ble High Court, Peshawar, could not deprive the petitioners from the legitimate exemption made available by the Federal Government. f. Declare that the Respondents are liable to refund to the Petitioners the amount of duty/taxes, illegally collected on the basis of Notice dated 20.01.2023, from the petitioners by way not extending the exemption, provided under SRO No.499(1)/2013 dated 12th June 2013. g. Restrain the Respondents and their officers or any other person acting on the basis of Notice dated 20.01.2023 from charging or collecting duty/taxes on the basis of notice, or similar instrument. h. Grant any other relief deemed just and appropriate in the circumstances of the case. i. Grant costs of the petition.
02. he background on which the instant petition came up before this Court, in brief, is that the petitioners, after their return from abroad to Pakistan, transported units of used Suzuki Wagon-R, Hybrid cars, under the personal baggage scheme, provided under Appex-E of the Import Policy Order, 2022, notified vide SRO No.545(1)/2022 dated 22.04.2022, and in accordance with the transhipment rules, notified vide Chapter XIV of SOR No.450(1)/2001 on 18.06.2001, these cars were transhipped to Customs Dryport, Peshawar. It is averred in the petition that the Federal Government through SRO No.499(1)/2013 dated 12.06.2013 exempted customs duty and withholding tax on the import of Hybrid Electric Vehicles (HEVs), falling under PCT Code 87.03 of the category specified in column (2) of the table. The Audit party, taking cognizance on the basis of circular No.SI/MISC/102/218-VII dated 05.10.2018 issued by the Assistant Collector, Group-VII, Appraisement
(West) Custom House, Karachi, observed that exemption under the said SRO is only available to Fully Hybrid Vehicles and the same was wrongly extended for Wagon-R (660cc) being not fully hybrid. Aggrieved from the order of the adjudicating authority, the importers and clearing agent filed separate appeals before Collector (Appeals), which were dismissed and order -in-original dated 03.012.2019 was maintained. Thereafter, the importers approached the Customs Appellate Tribunal, Peshawar Bench, where, the appeals of the importers were allowed and the orders impugned before the said Tribunal were set aside. Feeling aggrieved by the order of the Tribunal, the Customs authorities approached this Court by filing separate Custom References, which were dismissed vide single judgment dated 01.12.2021. CPLA against the judgment of this Court was also dismissed by the Apex Court vide judgment dated 06.07.2022 and leave was refused. After dismissal of CPLA, the Customs authority at Peshawar started to release the semi/mild/micro hybrid vehicles by extending the exemption provided under the SRO No.499(1)/2013 dated 12.06.2013. Thereafter, three complaints bearing No.4730, No.4731 & No.4733/PWR/CUST/2022, on the basis of judgment of this Court dated 01.12.2021 were filed by the aggrieved persons before the FTO, alleging therein that the Federal Board of Revenue is allowing exemption at Peshawar while denying at Karachi, which is discrimination within the meaning of FTO, Ordinance, 2000. The learned FTO vide its order dated 12.12.2022 disposed of the complaints and referred the matter to the Classification Committee. The Model Custom Collectorate of Appraisement (West) Karachi, after constitution of a committee, who after examining the vehicles of the complainants, forwarded the findings vide letter dated 03.01.2023 to the Chairman, who issued impugned Public Notice No.02/2023 dated 20.01.2023. The petitioners being aggrieved by the aforesaid public notice have challenged its validity and legality through this petition.
03. Pursuant to the order of this Court, respondent No.1 & 2 submitted their para-wise comments, raising therein many legal and factual objections.
04. Having considered the rival contentions of the learned counsel for the parties, we are of the view that the following questions fall for our determination:
(i) Whether the impugned public notice dated 20th January 2023 offends SRO No.499(1)/2013 dated 12th June 2013.
(ii) Whether the respondent No.4 is competent to issue the impugned public notice?
(iii) Whether circular No.SI/MISC/102/218-VII dated 05.10.2018 issued by the respondents on the same subject matter has been struck down by this Court, and the judgment of this was upheld by the August Supreme Court?
05. The moot point and bone of contention between the parties revolves around SRO No.499(l)/2013 dated 12th June 2013 and Public Notice dated 20.01.2023. It will be advantageous to reproduce the same as follows: 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 subsection (2) of section 13 tithe Sales Tax Act, 1990 and sections S3 and 148 of the Income Tax Ordinance, 2001 (XLIX of 2001), and in suppression of Notification No SRO, 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 & taxes (1)(2) (3)
1 Upto 1800 CC 50% 2 From 1800 cc to 2500 cc25% This notification shall take effect from the 13th day of June, 2013 (Mohammad Riaz)
Additional Secretary The impugned Public Notice dated 20.01.2023 is as under:- GOVERNMENT OF PAKISTAN COLLECTORATE OF CUSTOMS APPRAISEMENT (EAST)
CUSTOM HOUSE, KARACHI C-220/KAPE/DC/PCT/2022 Dated: 20.01.2023 PUBLIC NOTICE NO. 02/2023 Sub: FINDINGS / RECOMMENDATIONS / ORDER DATED 12.12.2022 OF HONOURABLE FTO PASSED IN COMPLAINT NOS.4730. 4731 & 4733/PWR/CUST/2022-DETERMINATION OF CLASSIFICATION OF VEHICLES DECLARED AS HYBRID` The Collectorate of Customs Appraisement, West, Karachi vide letter SI/Misc/2022 Group-WI dated 29.12.2022 conveyed the Findings/Recommendations/Order dated 12.12.2022 of Honourable FTO passed in Complaint Nos.4730, 4731 & 4733/PWR/CUST/2022 whereby it was directed to refer the matter of classification of imported vehicles of the complainant to the Classification Centre.
2. Brief facts as reported are that complainant imported 'Used Nisan Dayz Hibrid Car', 'Used Suzuki Wagon-R Hybrid Car' and 'Used Suzuki Hustler Hybrid Car' and claimed benefit of concessionary rates of duties and taxes under SRO 499(1)/2013 dated 12.06.2013 which was not allowed in the light of Circular dated 05.10.2018 issued by the Collectcrate of Customs, Appraisement-West, Karachi, treating the vehicles as HEV like Mild Hybrid Vehicles. The importers/complainants filed subject complaints which were disposed of by the Honourable FTO vide aforementioned order for referring the matter before the Classification Centre.
3. Hearings in the case were held on 30.12.2022 and 04.012023 which were attended by representatives of importers/complainants, the Collectorate of Customs Appraisement, West, Karachi and the members of the Classification Committee. The Departmental Representatives reiterated their stance placing relying on Circular dated 05.10.2018 that impugned vehicles HEV like Mild/Micro Hybrid Vehicles and were classified and assessed under PCT headings as under: S.No.FTO Complaint No. GD No & DateDeclared DescriptionAssessed under PCT Code 1 4730/PWR/CUST/2022KWWB-VB- 958-22-08- 2022Used Nisan Dayz Hybrid Car CH#B44W- 0119573 Model 2021 650CC BRO6- SM215AA-B44W8703.2119 2 4731/PWR/CUST/2022KWWB-VB- 914-22-08- 2022Used Suzuki Wagon-R Hybrid Car CH#MH95S 103211 Model-2022 650CC RO6D-WA04C 5AA-MH95S8703.2119 3 4733/PWR/CUST/2022KWWB-VB- 912-22-08- 2022Used Suzuki Hustler Hybrid Car CH# MR41S-38021 Model-2019 650CC RO6A DAA-MR41S8703.2119
4. On the other hand, representative of the importers/complainants contended that Circular dated 05.10.2018 has already been declared illegal/void by different fora. He contended that the imported vehicles have hybrid technology and the same are entitled for benefit of concessionary rates of duties and taxes under SRO 499(1)/2013 dated 12.06.2013.
The representative also emphasized that SRO 499(1)/2013 dated 12.06.2013 do not differentiate amongst various types of vehicles and/or contains words such as Hybrid like, Mild Hybrid or Micro Hybrid and only states 'Hybrid Electric Vehicles (HEVs) falling under PCT Code 87.03' and the same has been held by various legal fora, to which being facts, the Classification Committee find no disagreement The Classification Committee observed that the scope and mandate of Classification Committee under Chapter-II (Classification) of CGO 12/2002 dated 15.06.2002, is limited to the extent of determination of classification of goods and do not have vested authority, powers and mandate to decide the applicability of and interpret any concessionary regime in respect of imported goods which fall under the jurisdiction and domain of the Clearance Collectorates, the Board and the judicial fora. As such, the Classification Committee proceeded to determine the classification of impugned vehicles.
5. The Classification Committee has gone through the arguments and documents put forth and also considered the relevant provisions of law dealing with the HS classification. The classification of goods is to be determined in light of relevant Section and Chapter Notes and Explanatory Notes to the HS Codes. The Committee observed that after promulgation of Finance Act, 2022, the latest Harmonized System 2022 has been adopted w.e.f. 01.07.2022; hence, the impugned vehicles' classification is to be determined accordingly.
6. The Classification Committee considered Explanatory Notes of I-IS Code 87.03 which are reproduced hereunder: "Vehicles which have the combination of an internal combustion piston engine and one or more electric motors, are known as "Hybrid Electric Vehicles (HE Vs) ". For the purpose of mechanical propulsion, these vehicles draw energy from both a consumable fuel and an electrical energy/power storage device (e.g., electric accumulator, capacitor, flywheel/generator). There are various types of Hybrid Electric Vehicles (HEVs), which can be differentiated by their powertrain configuration (such as, parallel hybrids, series hybrids, power-split or series-parallel hybrids) and degree of hybridization (i.e., full hybrids, mild hybrids and plug-in hybrids).
Plug-in Hybrid Electric Vehicles (PHEVs) are those which can recharge their electric accumulators by plugging them into an electrical power grid outlet or charging station.
Vehicles propelled by one or more electric motors powered by electric accumuator packs are known as "Electric Vehicles (E Vs).
However vehicles with an electric power source. such as an integrated alternator/starter. that is used only for non-propulsion functions are not classified as I-IEVs. These power sources can be used for running stop-start systems and map have regenerative braking and charge management systems. Such vehicles may he referred to as having "hybrid technology" or being a "micro hybrid", but do not have an electric motor for propulsion.
7. The Classification Committee observed that as per above Explanatory Note reproduced above, vehicles with an electric power source, such as an integrated alternator/starter, that is used only for non-propulsion functions are not classified as HEVs. These power sources can be used for running stop-start systems and may have regenerative braking and charge management systems. Such vehicles may be referred to as having "hybrid technology" or being a "micro hybrid" but do not have an electric motor for propulsion. Thus, the vehicles having electric motor for propulsion are to be classified as Hybrid vehicles. The Committee considered the Examination Reports fed in the GDS which are reproduced as under: S.No.GD No. & DateDeclared Description Examination Report 1KWWB- VB-958- 22-08- 2022Used Nisan Dag Hybrid Car CH#B44W- 0119573 Model-2021 650CC BR06-SM21 5AA- B44WGD No.KWWB-VB-958-22-08-2022. Inspected at Motor Shed West Wharf Description: - Used Nisan Dag Car Chasis No.44W-0119573, Model Year 2021, Capacity; Not Shown, Engine: BR06, Meter Reading 6365 KM... Qty 01 Unit Group may check all aspects in the light of Chassis Series at the time of assessment (images are attached).
2 KWWB- VB-914- 22-08- 2022Used Suzuki Wagon-R Hybrid Car CH#MH95S- 103211Model- 2022 650CC RO6D- A04C 5AA-MH95SGD No.KWWB-VB-914-22-08-2022. Inspected at Motor Shed West Wharf Description:- Used Suzuki Wagon-R Car Chasis No.MH95S-103211, Model Year 2022, Capacity; Not Shown, Engine:R06d, Qty: 01 Unit Group may check all aspects in the light of Chassis Series at the time of assessment (images are attached).
3KWWB- VB-912- 22-08- 2022Used Suzuki Hustlor Hybrid Car CH# MR41S- 38021 Model-2019 650CC RO6A DAA- MR41SGD No.KWWB-VB-912-22-08-2022. Inspected at Motor Shed West Whaif. Description:- Used Suzuki Hustler Car Chasis No.MR41S-380921, Model Year 2019, Capacity; Not Shown, Engine:RO6A... Qty 01 Unit Group may check all aspects in the light of Chassis Series at the time of assessment (images are attached).
8. The Classification Committee observed that the above examination reports were found to be deficient in categorically specifying about any hybrid system functionality and the facts as whether or not these vehicles have electric motors for propulsion as per Explanatory Note to HS Code 87.03 as stated above. As these vehicles were lying at the port and their examination and confirmation of attributes was warranted to ascertain the physical facts, therefore, the Collectorate of Customs Appraisement, West, Karachi was requested to holistically examine the matter and affirm the physical attributes of the vehicle and furnish report with respect to Explanatory Note to HS Code 87.03. The relevant portion of Report furnished by the Clearance Collectorate is as under: "The has been examined in the light of examination of the impugned vehicles conducted by this Collectorate, Explanatory Notes to the heading 8703 and judicial orders of the various fora and report there-on is as under: According to Explanatory Notes to the heading 8703 "Vehicles which have the combination of an internal combustion piston engine and one or more electric motors, are known as "Hybrid Electric Vehicles (HEVs)". For the purpose of mechanical propulsion, these vehicles draw energy from both a consumable fuel and an electrical energy/power storage device (e.g., electric accumulator, capacitor, fly wheel/generator). However, vehicles with an electric power source, such as an integrated alternator/starter, that is used only for non-propulsion functions are not classified as HEVs. These power sources can be used for running stop-start systems and may have regenerative braking and charge management systems. Such vehicles may be referred to as having "hybrid technology" or being a "micro hybrid", but do not have an electric motor for propulsion".
The said explanation from the Explanatory Notes clearly transpires that impugned vehicles cannot be classified as HEVs (Hybrid Electric Vehicles) on account of the fact that electric motors available in the impugned vehicles are not meant for propulsion rather the same are used for non-propulsion purposes such as running stop-start systems.
9. The Classification Committee also considered the Classification Opinion of the WCO taken at 69th Session in March, 2022, which reads as follow: "Page XVII/II.
Insert the following Classification Opinion: "8703.22 I. Vehicle called a "mild hybrid" with a 1.5-litre turbocharged four cylinder spark-ignition engine producing 135 kW and 280 NIII of torque. It is equipped with a starter / generator that can boost the engine's output by an additional 10 kW and 160 Mn of torque. This starter / generator allows for smoother engine start-stop operation and energy recovery during coasting. This vehicle does not have an exclusive electric driving mode. This vehicle cannot be charged by plugging to an external source of electric power.
Application of GIRs 1 and 6. "
(Doc. NC2930Ec/P/20)
10. The Classification Committee observed that as per report and insignia, these vehicles have been manufactured and are equipped with features of Hybrid Technology to achieve a number of desirables like running stop-start systems and charge management systems, etcetera. However, on physical examination of functionality and attributes, these vehicles have been categorically reported to not have an electric motor for propulsion.
11. In light of the above mentioned facts, Classification Committee is of the view that the impugned vehicles are appropriately classifiable under PCT heading 8703.2119, in terms of Rule I of the General Rules of Interpretation.
12. The above classification determination is specific to the product whose details/ specifications have been given above. Further, the ruling is based on the documents and information provided by the Collectorate/importer and shall be treated as annulled if it is found at any subsequent stage that the same was obtained by providing incorrect, false, misleading or incomplete information.
13. This Public Notice is issued in terms of Chapter-II (Classification) of CGO 12/2002 dated 15.06.2002.
(Mushtaq Ali Shahani)
Additional Collector of Customs/ Chairman Classification Committee
06. It is reflected from the record that SRO dated 12th June 2013 was issued by the Federal 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 (hereinafter to be referred as Sales Tax Act) and section 53 and 148 of the Income Tax Ordinance, 2001 (hereinafter to be referred as "ITO 2001"). A plain reading of section 19 of the Customs Act, 1969 makes it crystal clear that it confers the general powers of granting exemption from customs duties whenever circumstances exist to take immediate action for the purpose of national 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, under aforesaid situations, the Governmnet of Pakistan may by notification exempt any goods imported into or exported outside Pakistan from the whole or any part of the customs duty chargeable thereon and may remit fine, penalty charge or any other amount recoverable under the Customs Act. We find similar provisions in sub-section (2) of section 13 of the Sales Tax Act, 1990 whereunder, the Federal Government is competent to exempt any supplies made or import of any goods from the whole or any part of the tax chargeable under the said Act. Likewise, section 53 of the ITO 2001 also empowers the Federal Government to grant exemption and tax concessions in the Second Schedule and section 148 of the ITO 2001 relates to advance tax paid to a collection agent. The Federal Government, in exercise of powers conferred to it in the aforesaid statutory provisions issued SRO No.499(1)/2013 dated 12th June 2013 to exempt customs duty, sales tax and withholding tax on the import of HEVs (Hybrid Electric Vehicles) falling within the ambit of PCT Code 87.03 and it was given effect from 13th June 2013. During existence of this SRO, the Assistant Collector Customs, MCC Appraisement-West issued Circular dated 05.10.2018, imposing unjustified condition, which was totally in conflict with the said SRO. It was stated therein that the benefit of exemption of duties, and taxes on the import of HEVs under SRO is only available to fully Hybrid Vehicles, which have larger batteries and a motor to drive the electric vehicle. The said SRO came up for consideration before this Court in Custom Reference No.270-P/2020 titled "Collector of Customs. Model Customs Collectorate, Peshawar versus Waseef-Ullah & another", which was answered in "negative" vide judgment dated 01.12.2021 and the customs reference filed by the Collector Customs was dismissed. It will be advantageous to reproduce the relevant portion of the said judgment as under:-
11. Besides, when SRO relates to Hybrid Electric Vehicles, it does contain new or used, kind of vehicles i.e., used or new could be gathered from import policy of the respective year when the vehicles in question were imported by the respondents. Insofar as, the applicability of the circular dated 05.10.2018, is of two folds, firstly, as to whether SRO requires to be interpreted by any officer and that too without having any legal sanctity attached to it, authority vested in it or powers delegated. Admittedly, the issuance of circular by Model Custom Collectorate of Appraisement (West), Karachi would amount to classify Hybrid vehicles and the extension of SRO to any specific class of vehicle i.e., fully Hybrid was not within the domain of authority rather it can be either by direct legislation or by delegated and in case of any ambiguity it shall be interpreted by the Court. Likewise, the contention of the learned counsel for the applicants that SRO relates only to new vehicles and could not be extended or applied for exemption of tax, custom levy of tax to the specification mentioned in column No.2 is also misconceived. Neither the specification of the vehicles i.e., Fully Hybrid or Semi nor new or used was given in the standard regulatory order while issuing SRO of the year 2013, therefore, in such an eventuality, neither the Model Customs Collectorate of Appraisement (West), Karachi nor the learned counsel for the applicants could interpret it otherwise. It is by now well settled principle of law that when the law requires a thing to be done in a particular manner, it must be done in that manner and not otherwise especially the principle enunciated in the judgment of the Apex Court in case titled "Muhammad Hanif Abbasi versus Imran Khan Niazi and others' (PLD 2018 SC 189), it was ruled by the apex Court that it is settled law that where the law requires something to be done in a particular manner, it must be done in that manner. Another important canon of law is that what cannot be done directly cannot be done indirectly. Secondly, the date of issuance of the circular is of worth consideration i.e., 05.10.2018 whereas the vehicles in question were imported earlier to 2017 as reflected in the audit report for the year 2017/18 by alleging therein violation of section 3(1) of the Import and Export (Control) Act, 1950 etc., thus, the circular dated 05.10.2018 could not be given retrospective effect. It is well established principle of interpretation of statutes, notifications, executive orders that they would not operate retrospectively unless they expressly provide for retrospective operation. The Hon'ble Supreme Court of Pakistan in the case of "Hashwani Hotel Ltd vs. Federation of Pakistan" (PLD 1997 SC 315) has enunciated that the interpretation of notification and/or an executive order will be operated prospectively and not retrospectively. This principle is equally applicable to a Statute in the absence of any express or implied intendment contrary to it. Hence when it is clear that notification/circular of an authority (even if equipped with powers) cannot be given retrospective effect when the same itself was issued on 05.10.2018 whereas, the import of the vehicles was made earlier to the issuance of circular. In the case of "Anode Power Generation Ltd and others vs. Federation of Pakistan and others" (PLD 2001 SC 340) it was held by the Apex Court that "notification cannot operate retrospectively and benefits and advantages if already accrued in favour of a party during substance of a notification or available to the party unless the same is amended or rescinded. Where the notification has been used for the benefit of the subject then the same can be made operative retrospectively but if its operation is to the dis- advantage of party who is the subject of the notification then the same would operate respectively. Reliance can be placed upon "Messrs Elahi Cotton Mills Ltd and others vs. Federation of Pakistan through Secretary M/O Finance. Islamabad and 6 others" (PLD 1997 SC 582), "Federation of Pakistan vs. Shaukat Ali Mian and other (PLD 1999 SC 1026) and "Messrs Army Welfare Sugar Mills Ltd and others vs. Federation of Pakistan" (1992 SCMR 1652).
12. More particularly, there is no cavil with the legal proposition that the notification which confers a benefit or right to a person can be given retrospective effect, whereas the notification which disturbs or impairs a vested right of a person or creates a new liability cannot be applied retrospectively in absence of a legal sanction to that effect. The Honorable Supreme Court in the case reported as (2012 SCMR 1698) (Collectorate of Customs. Lahore and others vs. Mrs. Shahida Anwar) while dealing with the Import Policy Order has once again held that where a notification confers a right to a person, the same ought to have been given effect retrospectively. Therefore, we are of the view that since SRO No.499(1)/2013 was beneficial notification where it allowed exemption in leviable duty and taxes @ 50% on the import of Hybrid Electric Vehicles (HEVs), hence, it cannot be interpreted for addition of "old" or "new, "fully" or "semi" and the Customs Appellate Tribunal, Peshawar Bench has rightly set at naught the findings of the fora below and allowed the appeals.
13. In view of the above discussion, questions formulated in all the Reference Applications are answered in "negative", in favour of respondents against the applicants, as suck the instant Reference and the connected Reference Applications are dismissed. The Registrar of this Court is directed to send copy of this judgment under the seal of the Court to the Tribunal for information.
07. Being aggrieved by the judgment of this Court, the Collector Customs filed Civil Petitions bearing No.389, 696 to 742 of 2022, which were dismissed vide judgment dated 06th July 2022.
Whereafter, the Additional Collector Customs issued Public Notice No.02/2023 on 20.01.2023 incorporating therein the same conditions as mentioned in the Circular dated 05.10.2018. The learned counsel representing the respondents owned, accepted and admitted the existence of SRO dated 12.06.2013, but attempted to argue the case that the impugned circular was issued for general financial benefit to the public exchequer. We are not in agreement with the learned counsel for the respondents. In our view, the benefit of exemption extended through SRO cannot be withdrawn under the garb of altogether a new criteria introduced through Public Notice, saying that the benefit of original SRO is only attracted to the fully Hybrid vehicles, which have larger batteries and a motor to drive the vehicles, but we do not find anything mentioned in this regard in the SRO itself. We asked the learned counsel for the respondents to show us the provisions of law whereunder an Additional Collector Customs is competent to issue such circular, making amendment in the SRO, thereby completely making change in the complexion and substance of the original SRO, but he could not. We also find that there is no distinction between new or used Hybrid vehicle or large or small batteries or Mild Hybrid vehicles. The plea of the learned counsel representing the respondents seems to be based on misconception and is, therefore, outrightly rejected. The SOR only classifies Hybrid Electric Vehicles (HEVs) with PCT headings without drawing any distinction with regard to fully, semi, mild hybrid or used or new vehicles or any specification of large batteries.
8. In our view, exemption of customs duty, Sales tax and withholding tax on import of Hybrid Electric Vehicles (HEVs) falling within the ambit of PCT Code 87.03 specified in column 2 of the table to the extent as specified in column 3 in terms of SRO No.499(1)/2013 dated 12th June 2013 could neither be denied nor circumvented under the garb of impugned Public Notice dated 20th January 2023.
9. For what has been discussed hereinabove, we allow this petition and declare the denial of benefit of exemption under SRO No.499(1)/2013 dated 12th June 2013 to the petitioners under the garb of public notice issued on 20.01.2023 as illegal, without lawful authority, without jurisdiction and in conflict with the SRO. The petitioners are entitled to be treated in accordance with the SRO dated 12.06.2013, therefore, the respondents are directed to refund the duty/taxes if any collected by them under the garb of impugned Public Notice dated 20.01.2023. There shall be no order as to costs.