Andhra Pradesh High Court - Amravati
M/S. Rain Cii Carbon Vizag Limited vs Union Of India on 3 March, 2021
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami, C. Praveen Kumar
IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE C. PRAVEEN KUMAR
WRIT PETITION Nos.979 & 1043 of 2020
(Taken up through video conferencing)
W.P.No.979 of 2020
M/s. Rain CII Carbon (Vizag) Limited
Having its registered office at 34,
Srinagar Colony, Hyderabad-500073
Telangana Rep., by its Authorized Signatory,
V.P. Srikanth, S/o late V.S. Parthasarathy.
.. Petitioner.
Versus
Union of India (Through the Secretary)
Ministry of Commerce and Industry,
Government of India, Udyog Bhawan,
New Delhi -110 003, and others.
..Respondents.
Counsel for the petitioner : Mr. Devadatta Kamat, Sr. Counsel for Mr. Challa Gunaranjan Counsel for respondent No.1 : Mr. N. Harinath, Assistant Solicitor General.
Counsel for respondent No.2 : Mr. Suresh Kumar Routhu. Counsel for respondent No.3 : Mr. M.V.J.K. Kumar. W.P.No.1043 of 2020 M/s. Rain CII Carbon (Vizag) Limited Having its registered office at 34, Srinagar Colony, Hyderabad-500073 Telangana Rep., by its Authorized Signatory, V.P. Srikanth, S/o late V.S. Parthasarathy.
.. Petitioner.
Versus Union of India (Through the Secretary) Ministry of Commerce and Industry, Government of India, Udyog Bhawan, New Delhi -110 003, and others.
..Respondents.
2 HCJ & CPK, J WP Nos.979 & 1043 of 2020 Counsel for the petitioner : Mr. Devadatta Kamat, Sr. Counsel for Challa Gunaranjan Counsel for respondent No.1 : Mr. N. Harinath, Assistant Solicitor General.
Counsel for respondent No.2 : Mr. Suresh Kumar Routhu. Counsel for respondent No.3 : Mr. M.V.J.K. Kumar.
ORAL COMMON ORDER Dt: 03.03.2021 (per Arup Kumar Goswami, CJ)
1. Heard Mr. Devadatta Kamat, learned Senior Counsel representing Mr. Challa Gunaranjan, learned Counsel for the petitioner and also heard Mr. N. Harinath, learned Assistant Solicitor General of India for respondent No.1; Mr. Suresh Kumar Routhu, learned counsel for respondent No.2 and Mr. M.V.J.K. Kumar, learned standing counsel for respondent No.3 in both the writ petitions.
2. Two cases viz., W.P.No.979 of 2020 and W.P.No.1043 of 2020 are listed together. Mr. Devadatta Kamat, learned Senior Counsel for the petitioner, has submitted that the point involved in both the writ petitions is identical and for the purpose of adjudication, W.P.No.979 of 2020 may be considered.
3. Prayers made in W.P.No.979 of 2020 read as follows:
"(A) Issue any Writ, order or orders or direction more particularly one in the nature of a writ of mandamus declaring that there is no prohibition on import of raw material i.e., Calcined Petroleum Coke (CPC) and Raw Petroleum Coke (RPC) into a Special Economic Zone, solely for the purposes of the manufacture, blending and re-export without the said goods being cleared for 3 HCJ & CPK, J WP Nos.979 & 1043 of 2020 domestic usage in India under the Special Economic Zones Act 2005 and the Special Economic Zones Rules, 2006 (B) Direction to Respondent No.2 to consider the representations dated 18 October 2019 and 22 October 2019 sent by the Petitioner and pass an order in a time bound manner and permit the Petitioner to import raw material i.e., Calcined Petroleum Coke (CPC) and Raw Petroleum Coke (RPC), into the SEZ only for the purposes of manufacturing, blending and re-
export, subject to the compliance of the applicable environmental laws; and SEZ Act, 2005 and SEZ Rules, 2006;
(C) Direction to Respondent No.3 to grant necessary permissions for importing of Calcined Petroleum Coke (CPC) under Clause 2.46 (Import for Export) of the Foreign Trade Policy 2015- 2020, for Re-export after blending the same with the CPC produced by the Petitioner in the SEZ Unit, at the SEZ Unit or the Customs Bonded Warehouse;
(D) pass any other further order (s) /direction (s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(E) Issue any writ, order or orders or directions more particularly one in nature of a Writ of Mandamus declaring the action of Respondent No.2 in rejecting the representations of the petitioner dated 18 October, 2019 and 22 October 2019 vide impugned Orders No.2 (20)/APSEZ/2017/933, dated 10 February, 2020 and No.2(20)/APSEZ/2017/934 dated 10 February 2020, as arbitrary and illegal, passed without any application of mind and same be set aside."
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4. Mr. Devadatta Kamat, learned Senior Counsel, has drawn the attention of the Court to the order dated 10.02.2020, which was passed on the basis of the representation dated 22.10.2019. The subject of the said representation is "Permission for import of Calcined Petroleum Coke for the SEZ Calciner plant". There is another representation dated 18.10.2019 on the subject "Permission for import of Raw Petroleum Coke for the SEZ Calciner plant", and the said representation was also rejected by separate order dated 10.02.2020.
5. Mr. Devadatta Kamar, learned Senior Counsel has drawn the attention of the Court to the order dated 09.10.2018 passed by the Hon'ble Supreme Court in W.P (s) (Civil) No (s).13029 of 1985, wherein the Hon'ble Supreme Court has made it clear that the imported raw material of Calcined Pet Coke (CPC) in the Aluminium industry cannot exceed 0.5 MT per annum in total. He has also drawn the attention of the Court to the observation of the Hon'ble Supreme Court in the above order that the imported raw pet coke for the purpose of producing calcined pet coke cannot exceed 1.4 MT per annum in total.
6. The learned Senior Counsel has also very fairly drawn our attention to two I.As filed by the petitioner in W.P. (C ) No.13029 of 1985 viz., I.A.No.1451 of 2019 and I.A.No.1847 of 2019.
"In I.A.No.1451 of 2019, the prayer is made as follows:
(a) Direct the Directorate General of Foreign Trade to allocate in favour of the applicant, 705,600 MT of RPC per annum out of the total 1.4 Million MT of RPC per annum as permitted to be imported by this Hon'ble Court vide order dated 9 October, 2018 passed in W.P.No.13029 of 1985, titled M.C. Mehta v. Union of India and Ors., on a continuous basis, for producing CPC;
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(b) pass such further/orders as in the facts and circumstances of the case be deemed fit and proper.
In I.A.No.1847 of 2019, the prayer is made as follows:
(a) to enhance/increase the import limit of 1.4 Million MT of Raw Petroleum Coke by an additional amount of 488,000 MT per annum for manufacturing Calcined Petroleum Coke at the Applicant's SEZ Unit and accordingly direct the Directorate General of Foreign Trade and other authorities, including the Ministry of Commerce, to allocate this additional Raw Petroleum Coke to the Applicant; and
(b) to enhance/increase the import limit of 0.5 Million MT of Calcined Petroleum Coke by an additional amount of 370,000 MT per annum for blending purposes at the Applicant's SEZ Unit, subject to the condition that the Applicant exports Calcined Petroleum Coke of equivalent quantity of its Calcined Petroleum Coke imports and accordingly, direct the Directorate General of Foreign Trade and other authorities, including the Ministry of Commerce, to allocate this additional Calcined Petroleum Coke to the Applicant; and
(c) direct the Development Commissioner, APSEZ to grant an extension of the Letter of Approval for the SEZ Unit being set up by the Applicant in the Andhra Pradesh Special Economic Zone; as sought by the Applicant vide letter/application dated 31 October, 2018; and
(d) pass such further/orders as in the facts and circumstances of this case be deemed fit and proper."
7. In W.P.No.1043 of 2020, the prayers made are as follows:
6 HCJ & CPK, J WP Nos.979 & 1043 of 2020 " A ) Issue any Writ, order or orders or direction more particularly one in the nature of a writ of mandamus declaring the action of Respondent No.3 in rejecting the application of the Petitioner and not allowing import of Calcined Petroleum Coke under Clause 2.46 (Import for Export) of the Foreign Trade Policy 2015-2020 vide rejection Letter dated 15 April 2019 for blending with the domestically produced CPC by the Petitioner at the Customs Bonded Warehouse itself without being cleared for domestic usage in India and meant for Re-Export only, as arbitrary, illegal, contrary to the provisions of The Foreign Trade (Development and Regulation) 1992, Foreign Trade Policy 2015-
2020, Customs Act 1962, besides violating Petitioner's rights guaranteed under Article 14 and 19 (1)(g) of the Constitution of India;
B) Direction to Respondent No.3 to grant necessary permissions for importing of Calcined Petroleum Coke (CPC) under Clause 2.46 (Import for Export) of the Foreign Trade Policy 2015- 2020 for Re-export after blending the same with the CPC produced by the Petitioner that is specifically designated for Export by the Petitioner, at the Customs Bonded Warehouse and pass such other orders as this Honble Court deems fit and proper.
C) Pass any other further order (s) /direction (s) as this Hon'ble court may deem fit and proper in the fact and circumstances of the case."
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8. The said I.As were dismissed along with some other I.As by the Hon'ble Supreme Court on 28.01.2019. The order reads as follows:
"Heard learned counsel for the parties.
I.A.Nos.168838 and 164302 of 2018 (Applications for impleadment) are rejected.
The order dated 09.10.2018 passed by this Court is clear. This Court has set the outer limit for import of raw pet coke cannot exceed 1.4 MT per annum in total.
In view of the aforesaid, prayers made on the basis of expansion etc., are totally misconceived and cannot be entertained. No further orders are required to be passed on these I.As i.e., I.A.Nos.168847/2018, 1451/2019 & 1847/2019 (filed on behalf of Rain CII Carbon (Vizag) Ltd.), I.A.No.164303 (filed on behalf of Saket Agarwal), I.A.No.12291/2019 (filed on behalf of Sanvira Industries Ltd.) and I.A.No.13210/2019 (filed on behalf of Goa Carbon Ltd.). The same are hereby dismissed."
9. Having drawn our attention to the aforesaid applications and the orders, the learned Senior Counsel appearing for the petitioner seeks to contend that notwithstanding dismissal of I.As, there is no impediment for this Court to entertain these petitions as the Hon'ble Supreme Court had no occasion to consider import to a Special Economic Zone (SEZ). It is also submitted by him that the representations were mechanically rejected without even adverting to the contentions raised.
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10. Mr. Harinath, learned Assistant Solicitor General appearing for respondent No.1 and Mr. Routhu Suresh Kumar, learned counsel for respondent No.2 submit that these matters are squarely covered by the order of the Hon'ble Supreme Court dated 09.10.2018 in W.P. (C ) No.13029 of 1985.
11. Perusal of the application viz., I.A.No.1847 of 2019 filed before the Hon'ble Supreme Court would go to show that the petitioner had highlighted on the aspect relating to an industry in SEZ. Paragraph No.10 of the application reads as follows:
"In view of the facts and circumstances as set out hereinabove, it would be necessary, just and proper for this Hon'ble Court to enhance the Import limit of 1.4 Million MT of RPC and 0.5 Million MT of CPC, as stipulated by this Hon'ble Court vide Order dated 9 October, 2018, and permit the Applicant to import 488,000 MT of RPC and 370,000 MT of CPC for manufacturing/blending CPC at its SEZ Unit when the same becomes operational."
12. Though in the order dated 28.01.2019, the Hon'ble Supreme Court referred to the order dated 09.10.2018 and observed that outer limit for import of raw pet coke cannot exceed 1.4 M.T. per annum, outer limit of 0.5 M.T. per annum for import of CPC, as fixed by the order dated 09.10.2018, was not mentioned. But the same will make no difference. As the Hon'ble Supreme Court had rejected I.A.No.1847 of 2019, wherein prayer for enhancement of import limit of RPC and CPC was made, we are of the considered opinion that the prayer made by the petitioner cannot be granted and therefore, submission made that the representations were rejected without any application of mind pales into insignificance.
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13. In view of the above, the Writ Petitions are dismissed. No order as to costs. Pending miscellaneous applications, if any, shall stand dismissed.
ARUP KUMAR GOSWAMI, CJ C. PRAVEEN KUMAR, J
Nn
10 HCJ & CPK, J
WP Nos.979 & 1043 of 2020
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE & HON'BLE MR. JUSTICE C. PRAVEEN KUMAR WRIT PETITION Nos.979 & 1043 of 2020 (per Arup Kumar Goswami, CJ) Dt: 03.03.2021 Nn