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2021 (6) TMI 683 - HC - CustomsRefusal to issue customs clearance to the High Alumina Refractory Cement imported - demand for production of BIS certificate for the goods imported by the petitioners - HELD THAT - According to the scheme of the BIS Act and its Rules, the Bureau of Indian Standards is a National Standard Body having technical expertise to establish national standards for goods or articles, process, system or service etc. and it by itself has no power to enforce the implementation. On the other hand, the standards fixed under Section 10 by the Bureau, have to be notified by the Central Government and thereafter, if it considers that the standards established in respect of goods and articles mentioned in Section 14 or Section 16 shall require compulsory conformity, the Central Government shall make a legislation or issue specific order in that regard. Notification dated 14.05.2018 was issued in terms of Rule 7(1)(b) of the Bureau of Indian Standards Rules, 1987. Under Rule 7(1)(a), the Bureau is obligated to establish Indian standards in relation to any article or process and it can amend, revise or cancel the standards so established. As per Rule 7(1)(b), all standards, their revisions, amendments and cancellations shall be established by notification in the Official Gazette. So, in terms of Rule 7(1)(b), the standard earlier established in the year 2011 for IS 15895 2011 HARC was revised on 09.05.2018 and the same was notified in the Official Gazette by the Central Government. As per Rule 7(7)(b), this establishment of standard is only voluntary to make it available to the public, but its conformity is not mandatory unless it is referred to in a legislation or so pronounced by a specific order of the Government. As rightly contended by the learned senior counsel for the petitioners, the respondents have not produced such a legislation or Gazette notification issued by the Central Government mandating that the standard established by BIS for IS 15895 2018 shall be compulsorily followed. Hence, the notification dated 14.05.2018 will not advance the contention of the respondents. For the same reason, another contention of the respondents that the standard specification notification issued by BIS should be deemed to be part of Appendix III of Import Policy and thereby, the import of HARC shall be supported by BIS certification cannot be accepted. The respondent authorities are not legally justified in demanding production of BIS certificate for the goods imported by the petitioners in both the writ petitions - Petition allowed - decided in favor of petitioner.
Issues Involved:
1. Refusal of customs clearance for High Alumina Refractory Cement (HARC) without Bureau of Indian Standards (BIS) certification. 2. Interpretation of the Cement (Quality Control) Order, 2003 (CQC Order, 2003) and its applicability to HARC. 3. Legal validity of the BIS certification requirement for HARC under the BIS Act, 2016 and related rules. Detailed Analysis: Issue 1: Refusal of customs clearance for HARC without BIS certification The petitioners challenged the refusal of customs officers to issue customs clearance for the imported HARC, arguing that the requirement for BIS certification was illegal and without jurisdiction. The respondents contended that the BIS Act, 2016, and the CQC Order, 2003, mandated BIS certification for HARC, as it was included under the Foreign Manufacturers Certificate Scheme (FMCS). Issue 2: Interpretation of the CQC Order, 2003 and its applicability to HARC The petitioners argued that HARC did not fall within the definition of "cement" under clause 2(d) of the CQC Order, 2003, and therefore, did not require BIS certification. They highlighted that HARC is a refractory material used in high-temperature furnaces, distinct from ordinary cement used for construction. The respondents countered that HARC was included under the term "any other variety of cement" in the CQC Order, 2003, and thus required BIS certification. Issue 3: Legal validity of the BIS certification requirement for HARC under the BIS Act, 2016 and related rules The court examined the BIS Act, 2016, and the relevant rules, noting that the BIS is responsible for establishing and promoting Indian standards for various goods, but the implementation of these standards is voluntary unless mandated by specific government orders or legislation. The court found that the notification dated 14.05.2018, which established the standard IS:15895:2018 for HARC, did not mandate compulsory BIS certification for HARC as there was no corresponding Gazette notification by the Central Government. Conclusion: The court concluded that the respondents were not legally justified in demanding BIS certification for the imported HARC. The court declared the refusal of customs clearance without BIS certification as illegal and without jurisdiction. The court directed the customs authorities to clear the consignments without demanding BIS certification. However, the court noted that the Central Government could issue a future Gazette notification mandating BIS certification for HARC. Orders: 1. W.P.No.24863/2020 and W.P.No.49/2021 were allowed. 2. The act of demanding BIS certification for the imported HARC was declared illegal and without jurisdiction. 3. Customs authorities were directed to clear the consignments without demanding BIS certification. 4. No order as to costs. 5. Interlocutory applications, if any, were closed.
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