TMI Blog2021 (1) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... lakh MT, I again do not find any merit in the submissions made by the learned senior counsels for the petitioners. While under the Public Notices dated 26.11.2018 and 22.03.2019, the applicant was to produce documents showing its Production capacity, in the Public Notice dated 17.04.2020, only a Certificate from the State Pollution Control Board indicating capacity of the unit as on 09.10.2018 could suffice. No other document for supporting claim of Production Capacity as on 09.10.2018 could have been taken into account in terms of the Public Notice dated 17.04.2020. The Consent to Operate from the State Pollution Control Board is required for establishing or operating any industrial plant or operation. As noted hereinabove, DGFT in its Public Notice(s) has required the eligible entity to produce valid Consent to Operate in support of their application for allocation of RPC. While, by the Public Notices dated 26.11.2018 and 22.03.2019, the Consent to Operate was taken as the sole document showing the production capacity of the unit as also the allocation to which it is entitled, a departure was made in the Public Notice dated 17.04.2020 inasmuch as now apart from a Consent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (MT). 2. These petitions have a checkered history of orders passed by the Supreme Court as also by this Court and therefore, at the outset, a reference to these would be essential for understanding the underlying disputes. 3. The Supreme Court by its order dated 26.07.2018 passed in WP(C) 13029/1985, M.C. Mehta v. Union of India Ors ., directed the implementation of the decision taken in paragraph 1.10 of the Minutes of Meeting dated 18.07.2018 held between the Ministry of Environment, Forest and Climate Change alongwith Officers of the Ministry of Petroleum and Natural Gas and Environment Pollution (Prevention and Control) Authority for NCR (EPCA) as also with the DGFT, which stated as under: 1.10 EPCA stated that based on extensive discussion between MoEFCC, MoPNG and DGFT, a regime for regulating import of pet coke had been suggested by DGFT, which is also compliant with WTO norms. EPCA stressed that this regulatory framework should be immediately implemented and import of pet coke should be permitted only in those industries where pet coke is used as a feedstock or in the manufacturing process and not as a fuel. These industries, which have been permitted to u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Guidelines shall come into force from the date of publication of Office Memorandum by Ministry of Environment, Forest and Climate Change. (Emphasis supplied) 5. Various applications were filed, including on behalf of the petitioners and M/s Sanvira Industries before the Supreme Court seeking certain clarifications. A report dated 06.10.2018 was filed therein by the EPCA making the following recommendations for the Calciner Industry: A.1.1 Calciners This industry imports different grades of pet coke and then upgrades this produce to produce calcined pet coke through removal of moisture, volatile matter and by changing the crystalline structure. The pet coke is used as a feed stock in the manufacturing process and not as a fuel. The calcined petcoke is sold to the Aluminum industry for feedstock in smelting process. These are 28 calciners in the country, of which 6 are port based and entirely dependent on imported raw pet coke. These 6 calciners, manufacture 72 percent of the calcined pet coke produced in the country. The 6 companies are as follows: 1. Rain CII Carbon, plant based in Vizag, Andhra Pradesh 2. Sanvira Industries, plant based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ANF 2M to DGFT (Exim Facilitation Committee) UdyogBhavan, New Delhi 110011 with copy to concerned jurisdictional Regional Authority of DGFT along with capacity of the unit and a valid consent certificate from State Pollution Control Board (SPCB)/ Pollution Control Committee (PCC), in the name of user industrial units indicating the quantity permitted for import and its usage on a monthly and yearly basis. (Emphasis supplied) 9. Pursuant thereto, the DGFT proceeded to make the allocation of RPC. The petitioner(s), however, made representation against the said allocation. The representation was also made by M/s Sanvira Industries pointing out that their current production capacity was 3,30,000 MT which was not taken into account for making allocation. The representations were disposed of by observing that the allocation of RPC cannot be restricted only to the applicant before the Supreme Court and all industries making RPC have to get an equal opportunity to such allocation. The Committee further observed as under: 6. The Committee examined the SPCB certificates of all the nine applicants for RPC imports. On examination, Committee observed that the SPCBs have adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (e) Consider removing quantitative restriction on the import of Raw Petroleum Coke by the Calcined Pet Coke manufacturing units. 11. In the application, M/s Sanvira Industries inter-alia contended that its project was to be implemented in three phases; Phase-I was for production capacity of 2,00,000 MT for which the consent to operate was received by it from the Andhra Pradesh Pollution Control Board (APPCB) on 22.04.2017. It was contended that under Phase-II, the capacity was expected to be expanded to 3,30,000 MT per annum and was completed in October, 2018 for which the consent to operate was obtained on 29.11.2018 from APPCB. In Phase-III, the capacity was to be increased to 4,60,000 MT per annum and was expected to be completed by October/November, 2019. In the application, M/s Sanvira Industries made the following submissions: 15. As stated above, the Applicant had obtained Environmental Clearance way back in 2012 for setting up a CPC manufacturing capacity of 460,000 MT. While Phase I was complete in 2017, Phase II expansion was nearly complete when EPCA presented its Report No. 91and Phase III had been planned to follow soon thereafter. Phase I and Phase II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission of M/s Sanvira Industries for allocation of RPC based on the additional capacity of 3,30,000 MT. The Committee observed as under: 5. M/s. Rain CII Carbon (Vizag) Ltd. has submitted additional requirement of4,88,000 MT of RPC for its AP SEZ Visakhapatnam Plant, which is yet to be operational. Similarly, M/s. Sanvira Ltd. has also submitted its requirement for meeting the additional capacity of 1,30,000 MT. In this regard, the Committee noted that the request for additional requirement of Raw Pet Coke by these two applicants had been set aside by the Hon'ble Supreme Court, vide Order of the Supreme Court dated 09.10.2018. The Hon'ble Supreme Court in its order dated 28.1.2019 while disposing off the I.A. No.168847/2018, 1451/2019 1847/2019 (filed on behalf of Rain carbon); I.A. No.12291 /2019(filed on behalf of Sanvira Ind. Ltd.) and I.A.No.164303 (filed on behalf of Saket Agarval) and I.A. No.13210/2019 (filed on behalf of Goa Carbon Ltd) had pronounced that the order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 22.4.2019, both the representations of M/s. Sanvira Industries Ltd. was considered by the Committee. The Committee observed that the contention of M/s. Sanvira Industries Ltd. that The Hon'ble Supreme Court's order dated 28.01.20l9 merely Slates that outer limit for import of RPC had already been fixed and any prayer seeking enhancement of that limit cannot been tertained and that the said order made no observation, as to whether the enhanced production capacity of the existing calciners were to be considered or not is baseless. The Committee was of the view that the prayer before be Hon'ble Supreme Court(as in Para 1) was for to enhance/increase the import limit of 1.4 Million MT of RPC by an additional amount of 488,000 MT per annum for manufacturing CPC at the Applicant s SEZ Unit and accordingly direct the DGFT and other authorities, including the Ministry of Commerce to allocate his additional RPC 10 the Applicant . To which the Hon'ble Supreme Court in its order dated 28.1.2019 directed that the order 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 aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot having consent to operate on 9.10.2018. Any other criteria for deciding the capacity will be a highly contentious issue and will be fraught with endless interpretations. ii. That the firm had challenged the Minutes of Meeting dated 22.4.2019 regarding allocation of RPC in Hon'ble Supreme Court and the application was disposed of by the Hon'ble Supreme Court observing Our order is Clear. No further clarification is required. This application is disposed of. 20. M/s Sanvira Industries challenged the above decision/order before this Court by way of WP(C) 1858/2020. This Court, vide its order dated 18.02.2020, did not grant any interim relief to M/s Sanvira Industries. 21. During the pendency of the above petition, the respondents, thereafter proceeded to issue a Public Notice dated 17.04.2020 for making allocation of RPC for the year 2020-21. Clause 2(iii) of the same required the applicant to submit the following documents: xxx Conditions and modalities of application for import of Pet coke. xxx iii. All eligible entities desiring to avail quota as mentioned above, may apply for import license as per procedure mentioned in Trade Notice No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotment multiplied by the demand of applicant divided by the Total demand for all applicants v. In cases where requested quantity is lower than eligible quantity, the surplus on their heads are redistributed among others proportionately. 23. It is the above allocation which is in challenge in the present petition. 24. The learned senior counsels for the petitioner(s) submit that the claim of additional RPC allocation made by M/s Sanvira Industries on the basis of its alleged additional installed/production capacity of 3,30,000 MT had been rejected by the Supreme Court in its order dated 28.01.2019 while dismissing its application. There was, therefore, no basis for taking this alleged additional production capacity into account while making the allocation of RPC in the Impugned Minutes of Meeting. They further submit, that the additional production capacity could not have been taken into account without a valid Consent to Operate as on 09.10.2018,which is admittedly the cut-off date taken by the Committee. They submit that admittedly, the Consent to Operate for the additional capacity of 1,30,000 MT was granted to M/s Sanvira Industries by APPCB only on 29.11.2018, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents assert that the Supreme Court had merely fixed the limit of 1.4 million MT for import of RPC and did not decide upon the installed capacity of various parties or their entitlement to the RPC. 28. I am in agreement with the submissions made by the learned ASG and the learned senior counsels for M/s Sanvira Industries. The Supreme Court in its order dated 09.10.2018 merely allowed use of RPC (domestic and imported) as a feedstock for producing calcinated pet coke, making it clear that the imported RPC for this purpose cannot exceed 1.4 MT per annum in total. The Supreme Court did not decide on the Production Capacity of any industry nor their respective entitlement to such imported RPC. This is also evident from the Minutes of Meeting dated 27.12.2018 of the DGFT, which rejected the representations of the petitioners-Rain CII Carbon and Petro Carbon, as also of M/s Sanvira Industries to the effect that such allocation must be confined only to the six applicants who had approached the Supreme Court and consequentially whose installed capacity had been taken into account by the EPCA in its report dated 06.10.2018. The Committee observed as under:- 5. .It also noted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before this Hon'ble Court are not eligible for allocation of Raw Petroleum Coke from the restricted Raw Petroleum Coke import quota allowed to Calcined Pet Coke manufacturing units and issue appropriate directions to the Directorate General of Foreign Trade; (d) Enhance the annual import limit on Raw Petroleum Coke for Calcined Pet Coke manufacturing units beyond 1.4 million MT if deemed necessary taking into account allocation to the Applicant as per prayer (a) and (b) above; (e) Consider removing quantitative restriction on the import of Raw Petroleum Coke by the Calcined Pet Coke manufacturing units. (Emphasis supplied) 32. No doubt, M/s Sanvira Industries made averments and prayer regarding additional allocation of imported RPC based on its Production Capacity of 3.30 lakh MT, it also made a prayer for enhancement of the limit of imported RPC itself. The Supreme Court in its order dated 28.01.2019 considered only the prayer for enhancement of the limit of imported RPC as this was the only direction in its order dated 09.10.2018 as well, and dismissed the applications observing as under:- Heard learned counsel for the parties. I.A. Nos.168838 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent certificate from SPCB/PCC in the name of the user industrial units indicating the quantity permitted for import and its usage on a monthly and yearly basis. All eligible entities desiring to avail quota as mentioned above, may apply for import license as per procedure mentioned in Trade Notice No. 49 dated 15 th March, 2019 along with State Pollution Control Board Certificate indicating capacity of the unit as on 09.10.2018 and also valid consent certificate from SPCB/PCC in the name of the user industrial units indicating the quantity permitted for import and its usage on a monthly and yearly basis. 37. A reading of the above Public Notices would show the marked departure made in the Public Notice dated 17.04.2020. While in terms of the Public Notices dated 26.11.2018 and 22.03.2019, the eligible entities were to produce capacity of the unit and a valid consent certificate from SPCB/PCC , in terms of Public Notice dated 17.04.2020, the eligible entities were to produce State Pollution Control Board Certificate indicating capacity of the unit as on 09.10.2018 and also valid consent certificate from SPCB/PCC . Therefore, while under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.s. The same are hereby dismissed. The Committee accordingly decided to reject the request for additional quantity of RPC for the additional capacity added by applicants after the Hon'ble Supreme Court's order dated 9.10.2018. 40. A reading of the above would show that the Committee rejected the plea of M/s Sanvira Industries on account of dismissal of its application by the Supreme Court and more importantly, because it found that as per the official record the additional capacity of 1.30 lakh MT had been created by M/s Sanvira Industries after the order dated 09.10.2018 of the Supreme Court. 41. M/s Sanvira Industries had challenged the above finding before this Court by way of a Writ Petition, being WP(C) 4485/2019. This Court vide its order dated 06.12.2019, disposed of the said petition, observing/directing as under:- 7. I have considered the submissions made by the learned counsels for the parties. A perusal of the Impugned Minutes of Meeting dated 22.04.2019of the respondent no. 1, also clearly shows that the installed capacity as on09.10.2018 has to be considered by the respondent no. 1 for making allocation of RPC. The Minutes, however, do not show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the Production Capacity of eligible entities as on 09.10.2018 was put on the State Pollution Control Boards and with that intent, the eligible entities were called upon to produce State Pollution Control Board Certificates indicating production capacity of the respective units as on 09.10.2018. 46. This being a deliberate departure from the earlier practice, the reliance of the petitioners on the earlier practice and mode of allocation as a challenge to the impugned allocation, cannot be accepted. 47. As far as the submissions of the learned senior counsels for the petitioners based on Section 21 of the Air (Prevention and Control) Act, 1981 and Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 are concerned, I again find no merit in the same. 48. Section 21 of the Air Act, 1981 reads as under: 21. Restrictions on use of certain industrial plants.- (1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area: Provided that a person operating any industrial plant in any air pollution control area immediately bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Board may approve in this behalf shall be installed and operated in the premises where the industry is carried on or proposed to be carried on; (ii) the existing control equipment, if any, shall be altered or replaced in accordance with the directions of the State Board; (iii) the control equipment referred to in clause (i) or clause (ii) shall be kept at all times in good running condition; (iv) chimney, wherever necessary, of such specifications as the State Board may approve in this behalf shall be erected or re-erected in such premises; and (v) such other conditions as the State Board, may specify in this behalf; and (vi) the conditions referred to in clauses (i), (ii) and (iv) shall be complied with within such period as the State Board may specify in this behalf: Provided that in the case of a person operating any industrial plant in an air pollution control area immediately before the date of declaration of such area as an air pollution control area, the period so specified shall not be less than six months: Provided further that- (a) after the installation of any control equipment in accordance with the specifications under cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for such consent, within the said period of three months, till the disposal of such application. (2) An application for consent of the State Board under sub-section (1) shall be made in such form, contain such particulars and shall be accompanied by such fees as may be prescribed. (3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry shall follow such procedure as may be prescribed. (4) The State Board may- (a) grant its consent referred to in sub-section (1), subject to such conditions as it may impose, being- (i) in cases referred to in clauses (a) and (b) of subsection (1) of section 25, conditions as to the point of discharge of sewage or as to the use of that outlet or any other outlet for discharge of sewage; (ii) in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the discharge or new discharge is to be made; and (iii) that the consent will be valid only for such period as may be specified in the order, and any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and rate of discharge of the effluent substantially a continuation of a discharge made within the preceding twelve months (whether by the same or a different outlet), so however that a discharge which is in other respects a continuation of previous discharge made as aforesaid shall not be deemed to be a new discharge by reason of any reduction of the temperature or volume or rate of discharge of the effluent as compared with the previous discharge. 50. A reading of the above provisions would clearly show that the Consent to Operate from the State Pollution Control Board is required for establishing or operating any industrial plant or operation. As noted hereinabove, DGFT in its Public Notice(s) has required the eligible entity to produce valid Consent to Operate in support of their application for allocation of RPC. While, by the Public Notices dated 26.11.2018 and 22.03.2019, the Consent to Operate was taken as the sole document showing the production capacity of the unit as also the allocation to which it is entitled, a departure was made in the Public Notice dated 17.04.2020 inasmuch as now apart from a Consent to Operate, the industrial unit was also to provide a certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, the application being CM No.18125/2020 was filed in WP(C) 3709/2020 by the DGFT seeking implementation of APPCB in the present petition. This application was, however, opposed by the petitioners contending therein, that in absence of a challenge to the certificate issued by the APPCB, APPCB could not be added as party respondent in the present petition. This Court taking note of the said submission, dismissed the application vide its order dated 10.08.2020, observing as under: 7. The petitioners being dominuslitis, are entitled to implead whom they consider to be necessary and proper party in the petition. The effect of non-impleadment of the party would be considered by this Court at the time of the final adjudication of this petition. The opposition of the petitioners to such impleadment application would always be at the prejudice of the petitioners themselves. At the present stage, it is suffice to note that the learned senior counsel for the petitioners has asserted that in this petition, no challenge shall be made to the Certificate dated 04.05.2020 issued by the APPCB in any manner. 55. The learned senior counsels for the petitioners inspite of the above ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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