Gujarat High Court
Messrs Satguru Polyfab Pvt. Ltd vs Union Of India on 31 March, 2021
Author: Bhargav D. Karia
Bench: Vikram Nath, Bhargav D. Karia
C/SCA/1424/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1424 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 1424 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7153 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 7153 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 1422 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 1422 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
MR PY DIVYESHVAR ,MR PARTH BHATT and MR PRIYANK LODHA for the
respondents.
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM
NATH
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 31/03/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. We have heard Shri Paresh M. Dave, learned counsel for the petitioners, Shri Priyank Lodha, Shri Parth Bhatt and Shri P.Y. Divyeshvar, Page 1 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022 C/SCA/1424/2020 ORDER 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 Polymethyl Methacrylate was omitted from ScheduleIII, Part D of the 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 Page 2 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022 C/SCA/1424/2020 ORDER 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 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 whatsoever by Notification dated 1.3.2019 (Annexure"
E") issued by the Ministry of Environment, Forest and Climate Change;
Page 3 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022 C/SCA/1424/2020 ORDER(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 made that the writapplicant may be Page 4 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022 C/SCA/1424/2020 ORDER 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 [Incharge], 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 writapplicant 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 Page 5 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022 C/SCA/1424/2020 ORDER Central Government issued a new notification on 27.01.2021 and as per the said notification, import of 'postindustrial or preconsumer 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 also utilise plastic waste mentioned in SubRules (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 Page 6 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022 C/SCA/1424/2020 ORDER 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 petitioner 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 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 Page 7 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022 C/SCA/1424/2020 ORDER dated 27.1.2021, the restrictions imposed upon the units of the petitioners which are situated in SEZ is lifted and insertion of SubRule 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.
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 :
Page 8 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022 C/SCA/1424/2020 ORDER"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 subrule(6) the following subrule shall be inserted, namely : "6A. The import of 'postindustrial 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 'postindustrial 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 serial number and entries shall be inserted, namely : "B3010 Postindustrial or preconsumer 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 Page 9 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022 C/SCA/1424/2020 ORDER 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 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 Page 10 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022 C/SCA/1424/2020 ORDER 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 Page 11 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022 C/SCA/1424/2020 ORDER on application of the petitioners to grant permission to use the goods.
21. Notice is discharged in each of the petition. Civil Applications are also disposed of accordingly.
(VIKRAM NATH, CJ) (BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 12 of 12 Downloaded on : Thu Jan 13 14:07:37 IST 2022