Gujarat High Court
Messrs Satguru Polyfab Pvt. Ltd. vs Union Of India on 23 January, 2020
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Bhargav D. Karia
C/SCA/1424/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1424 of 2020
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MESSRS SATGURU POLYFAB PVT. LTD.
Versus
UNION OF INDIA
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Appearance:
MR PARESH M DAVE(260) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2,3,4,5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 23/01/2020
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By this writapplication under Article 226 of the Constitution of India, the writapplicant 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 1st March, 2019 (Annexure"E") as ultra vires Section 1(2) of the 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 Page 1 of 3 Downloaded on : Sat Jan 25 21:02:59 IST 2020 C/SCA/1424/2020 ORDER 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 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 tranship 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 exparte adinterim 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.
2. It is brought to our notice by Mr. Dave, the learned counsel appearing for the writapplicant 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 writapplicant has to pay the ground rent, detention charges, demurrage charges etc. In such circumstances, a request is Page 2 of 3 Downloaded on : Sat Jan 25 21:02:59 IST 2020 C/SCA/1424/2020 ORDER made that the writapplicant may be permitted to atleast shift the 04 containers from the Mundra Port to his Industrial Unit ofcourse subject to the condition that the writapplicant 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 [In charge], KASEZ, Gandhidham to permit the writapplicant 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 writapplicant, the same shall be kept intact. We direct the writapplicant to file an undertaking before the Development Commissioner at 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.
(J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) aruna Page 3 of 3 Downloaded on : Sat Jan 25 21:02:59 IST 2020