Gujarat High Court
M/S Ansa Polymers Ltd. vs Union Of India on 13 July, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Ilesh J. Vora
C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21933 of 2019
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 21933 of 2019
With
CIVIL APPLICATION (DIRECTION) NO. 2 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 21933 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 21933 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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M/S ANSA POLYMERS LTD.
Versus
UNION OF INDIA
================================================================
Appearance:
MR PJ KANABAR(1416) for the Petitioner(s) No. 1
MR NIKUNT K RAVAL(5558) for the Respondent(s) No. 4
MR PY DIVYESHVAR(2482) for the Respondent(s) No. 5
MR. PARTH H BHATT(6381) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
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C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021
Date : 13/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs :
"During the pendency of the hearing and final disposal of the petition, Your Lordship may be pleased to permit the petitioner to transport the imported goods/ containers lying at Mundra Port to its SEZ unit on an undertaking for not using the same till final disposal of the SCA No.21933 of 2019.
(A) Your Lordship may be pleased to quash and set aside the letter dated 22.11.2019 issued by respondent no.3.
(B) Your Lordship may be pleased to permit the petitioner import its plastic scraps as per notification dated 17.10.2019 issued by respondent no.1 pursuant to LOA dated 28.11.2019 issued by respondent no.3.
(C) During the pendency of hearing and final disposal of petition, Your Lordship may be pleased to stay the implementation of letter dated 22.11.2019 vide letter no.F.NO.KASEZ/CUS/P&1/Misc/2018-19 issued by respondent no.3.
(D) During the pendency of hearing and final disposal of petition, Your Lordship may be pleased to permit the Page 2 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 petitioner to use imported raw material, which is lying in the unit of petitioner in SEZ area.
(E) During the pendency of hearing and final disposal of petition, Your Lordship may be pleased to direct the respondent no.4 to release the documents & cargo which has been seized on 04.12.2019 without any authority under law.
(F) Your Lordship may be pleased to pass such order and further directions as the nature of the case may require."
2. On 27th December 2019, a Coordinate Bench of this Court passed the following order :
"1. Mr. Akshat Khare, learned advocate for the petitioner says that out of 28 containers seized by the respondent authorities, 18 are lying at the petitioner's unit; whereas, 10 are lying at the Mundra port. It is submitted that the petitioner has to incur demurrages on account of the containers which are lying at the Mundra Port and hence, the respondent authorities may permit the petitioner to shift those containers to the petitioner's unit.
2. Mr.Parth Bhatt, learned senior standing counsel for the respondents has filed a leave note. Despite the fact that notice has been issued on 12th December 2019 returnable on 18th December 2019, till date no affidavit-in-reply has been filed. Under the circumstances, stand over to 9th January 2020. In the meanwhile, it would be open for the Page 3 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 petitioner to request the respondent authorities to permit the petitioner to shift the 10 containers lying at Mundra port to the petitioner's unit so as to avoid entailing further demurrage charges.
3. Direct service, today, is permitted."
3. Thereafter, on 9th January 2020, this Court passed the following order :
"1. On 27 th December 2019, this Court passed the following order:
"1. Mr.Akshat Khare, learned advocate for the petitioner says that out of 28 containers seized by the respondent authorities, 18 are lying at the petitioner's unit; whereas, 10 are lying at the Mundra port. It is submitted that the petitioner has to incur demurrages on account of the containers which are lying at the Mundra Port and hence, the respondent authorities may permit the petitioner to shift those containers to the petitioner's unit.
2. Mr.Parth Bhatt, learned senior standing counsel for the respondents has filed a leave note. Despite the fact that notice has been issued on 12th December 2019 returnable on 18th December 2019, till date no affidavit-in-reply has been filed. Under the circumstances, stand over to 9th January 2020. In the meanwhile, it would be open for the petitioner to Page 4 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 request the respondent authorities to permit the petitioner to shift the 10 containers lying at Mundra port to the petitioner's unit so as to avoid entailing further demurrage charges.
3. Direct service, today, is permitted."
2. Mr.Parth Bhatt, the learned standing counsel has appeared on behalf of the respondent No.3 - Development Commissioner Kandla Special Economic Zone and Mr. Divyeshwar, the learned standing counsel has appeared on behalf of the respondents Nos.4 and 5.
3. Mr.Divyeshwar, the learned standing counsel appearing for the respondents Nos.4 and 5 placed on record the affidavit-in-reply filed on behalf of the respondent No.4. The reply is ordered to be taken on record. Mr.Bhatt, the learned standing counsel appearing for the Development Commissioner seeks some time to file his reply in the matter.
4. We grant two weeks time to Mr.Bhatt, the learned standing counsel to file an appropriate reply. Pending the final adjudication of this writ petition, we direct the Development Commissioner to permit the writ applicant to shift the Ten containers lying at the Mundra Port to his industrial unit. Once the Ten containers are shifted to the industrial unit of the writ applicant, the same shall be kept intact. In short, we direct the writ applicant that he shall not deal with the Ten containers in any manner. In this regard, the writ applicant shall file an undertaking before the Page 5 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 Development Commissioner at the time when he takes delivery of the Ten containers lying at the Mundra Port. We have passed this order only keeping in mind that the writ applicant may not have to incur further demurrages on account of the containers which are lying at the Mundra Port. It shall be open for the Development Commissioner to apply appropriate seals so far as the Ten containers are concerned.
4. Post this matter on 30th January 2020."
4. Thereafter, on 9th July 2021, this Court passed the following order :
"1. We have heard Mr.Sakesh Kumar, the learned counsel appearing with Mr.P.J.Kanabar, the learned counsel for the writ applicant and Mr.Nikunat Raval, the learned Standing Counsel appearing for the respondent No.4.
2. The main matter was heard on 25.03.2021 and was ordered to be disposed of. However, this Bench was not able to dictate the order at the earliest. There are few issues, which need to be once again understood and for that purpose, we were contemplating to get the main matter once again notified, so that all such issues can be clarified before any final decision is taken. However, today, the learned counsel invited attention of this Court to one order passed by a Coordinate Bench dated 31.03.2021 passed in Special Civil Application No.1424/2020 and allied writ applications.Page 6 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021
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3. According to the learned counsel appearing for the applicant, the main matter can be disposed of in line with the order passed by a Coordinate Bench of this Court dated 31.03.2021 at Annexure-A2 at page 12. We quote Paras 19 and 20 of the said order as under:-
"19. Accordingly, all the petitions are disposed of as having become infructuous with the direction to the respondent authorities to permit the petitioners to use the raw materials/goods which are kept unused pursuant to the directions issued by this Court on an application which may be made by the petitioners before the respondent authorities so as to remove the seal put up by the respondent authorities to enable the petitioners to use such goods.
20. In view of above, undertakings filed by the petitioners shall also be discharged on passing of requisite order by the respondent authority on application of the petitioners to grant permission to use the goods."
4. Mr.Sakesh Kumar, the learned counsel appearing for the writ applicant would submit that, his client would be satisfied if the main matter is disposed of in terms of the above two referred paras.
6. Mr.Nikunt Raval, the learned counsel appearing for the Respondent No.4 would like to seek instructions in this regard and revert. Post this matter before this Court at 10:45 A.M on 13.07.2021 as special case."
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5. Today, when the matter was taken up for further hearing, Mr.Parth Bhatt, the learned standing counsel appearing for the respondents nos.1, 2 and 3 respectively, and Mr.Nikunt Raval, the learned standing counsel appearing for the respondent no.4, submitted that this writ-application may be disposed of in line with the order passed by the Coordinate Bench dated 31 st March 2021 in the Special Civil Application No.1424 of 2020 and allied petitions. We quote the entire order passed by the Coordinate Bench dated 31st March 2021 :
"1. We have heard Shri Paresh M.Dave, learned counsel for the petitioners, Shri Priyank Lodha, Shri Parth Bhatt and Shri P.Y.Divyeshvar, learned counsels appearing for the respondents.
2. Since the issue involved in all these petitions is common, they have been heard together and would be disposed of by this common order. For the sake of convenience, the facts are recorded from Special Civil Application No.1424/2020 taking it as a lead matter.
3. The petitioners have challenged Rule 2(vi)(a) of the Hazardous and Other Wastes (Management and Transboundary Movement) Amendment, Rules, 2019 (For short "Rules, 2019") whereby by "Note-Import is permitted to units in Special Economic Zone (For short "SEZ") and Export Oriented Units notified by the Central Government" was omitted in Schedule VI against Basel No.B3010 in column (2). Basel No.B3010 pertaining to Solid Plastic Waste Page 8 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 Polymethyl Methacrylate was omitted from Schedule-III, Part D) of the Hazardous and Other Wastes (Management and Transboundary Movement) Amendment, Rules, 2016 (For short "the Rules, 2016")
4. The petitioners were allowed to import by virtue of license i.e. letter of approval raw materials in nature of new/virgin plastic scrap/ waste in the SEZ operations of the petitioners.
5. In view of the aforesaid Rules, the Customs authorities in charge of the units located in Kandla SEZ objected import of the raw materials in nature of new/virgin plastic scarp/waste on the ground that the import of such material was no longer permitted even to the units located in SEZ area. The petitioners therefore have filed this petition.
6. This Court passed the following order on 23rd January, 2020 :
"1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant engaged in the business of manufacturing of various commodities of plastic and having its unit at Kandla Special Economic Zone, has prayed for the following reliefs:
17(A) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction striking down Rule 2(vi)(a) made vide Notification dated 1 st March, 2019 (Annexure- "E") as ultra vires Section 1(2) of the Page 9 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 Environment (Protection) Act, 1986 and also ultra vires Sections 53 and 55 of the Special Economic Zones Act, 2005, and ultra vires Rule 19 of the SEZ Rules, 2006 read with Section 2(c) of the SEZ Act, 2005 ultra vires Section 5 of the Foreign Trade (Development and Regulation) Act, 1992; and also ultra vires Articles 14 and 19(1)(g) of the Constitution of India;
(B) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction holding and declaring that "the petitioner" as a KASEZ Unit is licensed and permitted to import raw materials in the nature of virgin plastic waste and scrap of nonhazardous nature in accordance with the Letter of Approval issued in the petitioner's favour by the Development Commissioner, KASEZ, and that the petitioner's right to import such raw materials in accordance with the LOA issued by the Development Commissioner is not affected in any manner whatsoever by Notification dated 1.3.2019 (Annexure-"E") issued by the Ministry of Environment, Forest and Climate Change;
(C) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction thereby directing the Customs officers in charge of Mundra Port, including Respondent No.4 & 5 herein, to assess Bills of Entry filed by the Petitioner for import and clearance of virgin plastic waste and scrap of nonhazardous nature imported in accordance with the Page 10 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 Letter of Approval issued in the petitioner's favour by the Development Commissioner, KASEZ; and to permit the petitioner to transfer and bring such raw materials to their KASEZ Unit for utilization thereof for authorized operations;
(D) pending hearing and final disposal of the present petition, be pleased to direct the Deputy Commissioner of Customs (SIIB), Kandla (Respondent No.4) and the Deputy Commissioner of Customs, KASEZ, Gandhidham (Respondent No.5) to permit the petitioner to transfer and transship consignments of raw materials covered under Bills of Entry and also the containers as listed at Annexure "G" to this petition;
(E) pending hearing and final disposal of the present petition, be pleased to allow the petitioners to utilize imported raw materials in the nature of virgin plastic waste and scrap of nonhazardous nature for the authorized operations on the terms and conditions that may be deemed fit by this Hon'ble Court;
(F) an ex-parte ad-interim relief in terms of prayer 17(D) & (E) above may kindly be granted;
(G) be pleased to pass any other and further order/ s and/or relief/s in the interest of justice.Page 11 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021
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2. It is brought to our notice by Mr.Dave, the learned counsel appearing for the writ-applicant that his client has imported 04 consignments of virgin plastic waste and scrap of nonhazardous nature in accordance with the Letter of Approval issued by the Development Commissioner, KASEZ.
3. According to Mr.Dave, the consignments as on date is lying at the Mundra Port. The writ-applicant has to pay the ground rent, detention charges, demurrage charges etc. In such circumstances, a request is made that the writ-applicant may be permitted to at-least shift the 04 containers from the Mundra Port to his Industrial Unit of-course subject to the condition that the writ-applicant shall not utilize the goods in any manner till the final adjudication of this litigation.
4. Let Notice be issued to the respondents, returnable on 30/01/2020.
In the meantime, we direct the Deputy Commissioner of Customs (SIIB), Kandla as well as the Deputy Commissioner of Customs [Incharge], KASEZ, Gandhidham to permit the writ-applicant to shift the 04 containers lying at the Mundra Port to his Industrial Unit. Once the 04 containers shifted to the Industrial Unit of the writ-applicant, the same shall be kept intact. We direct the writ-applicant to file an undertaking before the Development Commissioner at Page 12 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 the time of taking delivery of the 04 containers that he shall not deal with the containers in any manner. We are granting this indulgence only keeping in mind the writ-applicant may not have to incur further demurrages on account of the containers lying at the Mundra Port. It shall be open for the Development Commissioner to apply appropriate seals so far as the 04 containers are concerned.
5. Having regard to the nature of this litigation, we expect the respondents to respond at the earliest by filing an appropriate reply by the next returnable date. Direct service is permitted."
7. In view of the aforesaid order, the petitioners were permitted to shift the containers of raw materials in their unit to be kept and stored aside and not to be utilised nor dealt with in any manner.
8. After the aforesaid order was passed, similar orders were passed in cases of other similarly situated petitioners. It appears that the Central Government issued a new notification on 27.01.2021 and as per the said notification, import of 'post-industrial or pre-consumer polyethylene wastes' and 'Polymethyl Methacrylate' mentioned in the said notification is permitted to be imported in the units situated in SEZ area and for the Export Oriented Units use.
9. In view of the aforesaid notification dated 27.1.2021, the petitioners being in SEZ unit are permitted to import and Page 13 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 also utilise plastic waste mentioned in Sub-Rules (6A) and (6B) of Rule 12 of the Rules, 2016.
10. In view of the policy decision, the raw materials imported by the petitioners in the past which are lying in the units without being utilised in view of the directions of this Court and undertaking given by the petitioners pursuant thereto are now freely importable and there is no restriction of import of such plastic waste any longer.
11. In view of the above subsequent development, during the pendency of the petitions, the petitioners have moved the Civil Applications with the prayer to direct the respondents to allow the petitioners to use and utilise the raw materials in the nature of plastic waste which is permissible to be imported in accordance with the amendment made vide notification dated 27.1.2021 for the authorised operation allowed to the petitioners under letter of approval issued by the Development Commissioner, Kandla SEZ. It is further prayed to direct the cancellation of undertakings and bonds furnished by the petitioners for not utilising the raw materials pursuant to the directions issued by this Court in case of each of the petitioners because in view of the notification dated 27.1.2021, the petitioners now can use such raw materials.
12. Learned advocate Mr. Paresh M. Dave submitted that in view of the subsequent change in policy of the Central Government, the petitions have become infructuous and only direction may be given to the respondent authorities to Page 14 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 permit the petitioners to use the raw materials imported by it and which are being kept separately unutilised as per the directions of this Court.
13. Learned advocate Mr.Dave therefore, seeks permission to withdraw the petition with the aforesaid directions to the respondent authorities.
14. On the other hand, learned advocate Mr.P.Y.Divyeshwar submitted that it is true that in view of the subsequent notification dated 27.1.2021, the restrictions imposed upon the units of the petitioners which are situated in SEZ is lifted and insertion of Sub-Rule 6(A) in Rule 12 of the Rules, 2016 by the said notification provides for the Hazardous and Other Wastes (Management and Transboundary Movement) Amendment Rules, 2021 (For short "Rules, 2021"), but at the same time, when the petitioners imported the raw materials, Rules, 2019 were in operation and therefore, the petitioners cannot be permitted to use the raw materials imported when the same was not permitted by the Rules.
15. In the rejoinder, learned advocate Mr. Dave submitted that if the petitioners import raw materials as on today they would be permitted, but the raw material which is already kept without any use pursuant to the directions of this Court should also be permitted to be used as raw material is put to use after the notification of 27.1.2021.
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16. Having heard the learned advocates for the respective parties and having gone through the materials on record, in view of the subsequent development by notification dated 27.1.2021, Ministry of Environment, Forest and Climate Change has prescribed the Rules, 2021. Rule 2(a) and 2(b) of the Rules, 2021 provides as under :
"2. In the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 (hereinafter in this notification referred to as the said rules):-
(a) in rule 12, after sub-rule(6) the following sub-rule shall be inserted, namely :-
"6A. The import of 'post-industrial or pre-consumer polyethylene wastes' and 'Polymethyl Methacrylate' mentioned at column (2), against Basel Number B3010 in Schedule VI, is permitted to units in Special Economic Zones and Export Oriented Units notified by the Central Government.
6B. the import of 'post-industrial or pre-consumer polyethylene wastes' shall be permitted with a requirement of at least fifty percent exports in terms of tonnage for 18 months from the date of this notification or till a decision is taken on the basis of review or audit undertaken to ascertain the effect of such import, whichever is later.";
(b) in the said rules, in Schedule III, in Part B, After Basel number B3 and the entries relating thereto the following Page 16 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 serial number and entries shall be inserted, namely:-
"B3010 Post-industrial or pre-consumer polyethylene waste Polymethyl Methacrylate";
17. In view of the aforesaid amendment brought in the Rules, 2016 the SEZ units and EOU units notified by the Central Government are permitted to use the raw materials against Basal No.B3010 in Schedule VI in the Rules, 2016. Though the petitioners have imported the materials prohibited by the Rules, 2019 the same were not put to use by the petitioners pursuant to the directions issued by this Court. The petitioners therefore, may approach the respondent authorities with an application to permit the petitioners to use the raw materials lying in the custody of the petitioners in view of the Rules, 2021 vide notification dated 27.1.2021. On receipt of such application, the respondent authorities are directed to permit the petitioners to use the raw materials which were imported by the petitioners and which were the subject matter of the petitions and such materials being kept separate unutilised by the petitioners as per the directions of this Court. The undertaking given by the petitioners before this Court is also discharged in view of the fact that now the petitioners can use such raw materials in SEZ units after the notification dated 27.1.2021.
18. It is pertinent to note that Rules, 2016 are issued by the Ministry of Environment, Forest and Climate Change, Government of India and in view of the amendment in Page 17 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021 C/SCA/21933/2019 JUDGMENT DATED: 13/07/2021 Rules, 2016 by Rules, 2019 by the said Ministry, the respondent authorities did not permit the petitioners to clear the goods for use. Now in view of the amendment brought by Rules, 2021 vide notification dated 27.1.2021, the petitioners are permitted to use such goods which are imported by it. Therefore, it cannot be said that though the goods were imported during the subsistence of Rules, 2019 cannot be used even after the petitioners are permitted to use in view of the change in policy of the Central Government with effect from 27.1.2021. In such circumstances, as the goods imported by the petitioners were never used in view of the directions of the Court, are now being permitted to be used by notification dated 27.1.2021, there is no need to restrain the petitioners from use of such raw materials which is otherwise permissible to be used.
19. Accordingly, all the petitions are disposed of as having become infructuous with the direction to the respondent authorities to permit the petitioners to use the raw materials/goods which are kept unused pursuant to the directions issued by this Court on an application which may be made by the petitioners before the respondent authorities so as to remove the seal put up by the respondent authorities to enable the petitioners to use such goods.
20. In view of above, undertakings filed by the petitioners shall also be discharged on passing of requisite order by the respondent authority on application of the petitioners to grant permission to use the goods.Page 18 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021
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21. Notice is discharged in each of the petitions. Civil Applications are also disposed of accordingly."
6. In view of the aforesaid, this writ-application is disposed of with the direction to the respondent authorities to permit the writ-applicant to use the raw-materials/goods which are lying at the unit of the writ-applicant situated in the SEZ area. The writ- applicant shall prefer an appropriate application addressed to the respondent authorities with a prayer to remove the seal applied by the respondent authorities to enable the writ- applicant to use the goods in question.
7. In view of the aforesaid, the undertaking filed by the writ- applicant shall also stand discharged upon a requisite order being passed by the respondent authorities granting permission to use the goods.
8. The writ-application stands disposed of accordingly. The connected Civil Applications are also disposed of. Direct service is permitted.
(J. B. PARDIWALA, J.) (ILESH J. VORA, J.) /MOINUDDIN Page 19 of 19 Downloaded on : Sat Jul 17 03:45:01 IST 2021