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2023 (7) TMI 116 - SC - CustomsAllocation of quantities of raw pet-coke (RPC) - Increased allocation to Sanvira was set aside by the Division Bench of HC - Notification No 42/2015-20 and Public Notice No 50/2015-20 - stipulating the manner in which DGFT would allocate the quota of RPC to eligible CPC manufacturing units within the given ceiling limit. HELD THAT - The facts reveal that the order of this court had fixed the outer limit of import of RPC at 1.4 million tonnes per annum. This was based on the assessment by EPCA which evaluated the requirements of various industries and units, engaged in the production of diverse commodities and raw materials (such as steel, aluminium, cement, clinker and those of calciners). The EPCA took into consideration the availability of appropriate grade domestic pet-coke, the overall impact on the environment and climate, of such essentially polluting feed based on this detailed examination, reported to this court, that 1.4 MMT ought to be the cap for imported RPC. From all the facts, it is evident that Sanvira kept on contending that its capacity was 3,30,000 MTPA. The minutes of the meeting dated 13.02.2020, also allude to the previous attempts by Sanvira, to have its capacity increased, as on 09.10.2018 in an effort to secure more allocation. All such contentions were rejected. In this background, the view expressed by the single judge, that the principle for allocation was changed somewhat in the public notice, dated 17.04.2020, is not tenable. This court is of the considered opinion that the view expressed by the impugned judgment is correct. Barring the fact that a clarification was issued on 04.05.2020, by the APPCB, there was no change in circumstance; the material document to be considered was the CTO, which for the relevant period (i.e. as on 09.10.2018) was 2,00,000 MT per annum, for Sanvira. Even according to it, the claim for enhancement was made later, and the CTO for the increased capacity was issued on 26.12.2019 - there is no infirmity with the findings and conclusions of the Division Bench, in the impugned judgment. Appeal dismissed.
Issues Involved:
1. Allocation of Raw Pet-Coke (RPC) quantities. 2. Validity of the Delhi High Court's interference with Central Government decisions. 3. Criteria for allocation of imported RPC. 4. Capacity claims and their recognition. 5. Legal implications of public notices and Supreme Court orders. Summary: Allocation of Raw Pet-Coke (RPC) Quantities: The appeals address the allocation of quantities of Raw Pet-Coke (RPC), a residue from refining petroleum products, used as fuel in various industries. Tests show that imported pet-coke has harmful effects, releasing sulfur and injurious particulate material into the atmosphere. Validity of the Delhi High Court's Interference: The appellant, M/s. Sanvira Industries, challenged the Delhi High Court's decision dated 10.01.2023, which set aside the Central Government's allocation of pet-coke. The High Court's decision was based on the criteria set by the Director General of Foreign Trade (DGFT) and the Ministry of Environment, Forest and Climate Change (MoEF) guidelines, which restricted pet-coke import to industries using it as feedstock. Criteria for Allocation of Imported RPC: The DGFT and MoEF guidelines mandated that importers obtain consent and registration from the State Pollution Control Board (SPB) or Pollution Control Committee (PCC). Sanvira's capacity was initially recorded as 200,000 MTPA. The Supreme Court's order dated 09.10.2018 capped RPC import at 1.4 million tonnes per annum (MMTPA), based on the production capacity of calciners. Capacity Claims and Their Recognition: Sanvira contended its capacity was 330,000 MTPA, completed in October 2018, but this was not recognized in the initial allocation. The Supreme Court dismissed applications for increased capacity, including Sanvira's, on 28.01.2019. Subsequent requests for enhanced allocation based on increased capacity were also rejected by the DGFT. Legal Implications of Public Notices and Supreme Court Orders: Sanvira's challenge to the DGFT's rejection of its increased capacity was dismissed by the Delhi High Court, which required the DGFT to reconsider Sanvira's representation. The DGFT, however, maintained that additional capacity created after the Supreme Court's order dated 09.10.2018 would not be considered. The High Court's single judge held that the public notice dated 17.04.2020 changed the criteria for allocation, but the Division Bench disagreed, emphasizing the total permissible capacity fixed by the Supreme Court as of 09.10.2018. The Supreme Court upheld the Division Bench's judgment, stating that the total permissible import of 1.4 MMTPA was based on the production capacity as of 09.10.2018. Sanvira's increased capacity, recognized by the Andhra Pradesh Pollution Control Board (APPCB) only after 09.10.2018, could not be considered for additional allocation. The appeals were dismissed, affirming the Division Bench's findings.
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