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TMI Blog2018 (8) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... ls being sent for export, and requiring the petitioner to produce necessary documents secured from competent authority, respectively. Material facts required for the consideration of reliefs sought for in the writ petition are as follows: 2. Petitioner is a registered Partnership Firm established to carry on the business of separation and processing of beach sand minerals. The 1st and 2nd respondents are the jurisdictional authorities at the Cochin Port, amenable to the jurisdiction of this Court. The 3rd respondent is the District Collector, Tirunelveli, who has addressed a letter to the Port authorities which was acted upon by the Customs Authorities. According to the petitioner, the query raised by the Customs Authorities on account of the same is illegal and without jurisdiction, attempting to interfere with free export of the petitioner's goods through the Cochin Port. Petitioner has been exporting its finished products (in the present case, 'natural garnet') through the Ports in Tamil Nadu, Andhra and Kerala. 3. In this writ petition, petitioner is challenging pre-export restrictions/obligations sought to be imposed by the 1st and 2nd respondents, apparently at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly paid (with proper receipts and challans), and such minerals were then stored in bonded warehouses properly licensed under the Customs Act. According to the petitioner, these are stocks of inventories which had been generated with foresight over the years, creating buffer for future demands. Therefore, since royalty has been fully paid on these minerals, the title to these minerals vests in the petitioner. 6. However, the 3rd respondent passed Ext.P1 order dated 09.11.2016, essentially minutes of a District Level Committee Meeting, requiring to stop the factory operations of the petitioner and certain other operators, which led to a series of writ petitions before the Madurai Bench of the Madras High Court. It is the case of the petitioner that, Ext.P1 reveals that the entire basis of the said order is a wrong assumption by the 3rd respondent that the extraction of minerals by the petitioner, beyond the projected reserves, tantamount to illegal mining. It is also submitted that, the 3rd respondent is under the impression that if any stocks of minerals are found beyond the projected reserves set forth in the mining plans, such stocks are "illegally mined". Therefore, Ext.P1 order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade (Development and Regulation) Act, the Central Government may by order published in the Official Gazette, make provision for the development and regulation of foreign trade for facilitating imports and increasing exports. According to Sec.3(2), the Central Government may also, by order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exemptions, if any, as may be made by or under the order, the import or export of goods. According to Sec.3(3), all goods to which any order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under Sec.11 of the Customs Act, 1962, and all the provisions of that Act shall have effect accordingly. Therefore, according to the petitioner, this will establish that for regulating or imposing conditions, it is mandatory that the Central Government should pass order and publish in the Gazette. According to subsection (4) of Sec.3, no permit or licence shall be necessary for export. The Central Government as per Sec.5, formulates and announces by notification in the official gazett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nadu. 14. It is further submitted that, a total number of 52 mining leases have been granted to private persons in patta and Government puramboke lands for mining raw sand, Garnet, Ilmenite, Rutile, Zircon, Sillimanite etc., in Tirunelveli District. The Government of Tamil Nadu, as per an order dated 08.08.2013, issued orders forming a Special Team headed by the Secretary, Revenue Department to inspect and verify in terms of Sec.24 of Mines and Minerals (Development and Regulation) Act, 1957, to identify as to whether there is illicit mining by the lessees of beach sand minerals in Tuticorin District. Accordingly, orders were issued to conduct the inspection. 15. That apart, the State of Tamil Nadu further directed the District Collectors of Tirunelveli, Tiruchirapalli, Kanyakumari and Madurai Districts to stop the mining operations pending completion of the inspections by the Special Team. Further, the Assistant Directors (Mines) of the above specified districts were also directed to stop immediately the issuance of transport permits for Garnet, Ilmenite, Rutile etc. etc., with respect to the leases granted to private parties in the respective Districts till the inspections are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w sand and processed minerals as furnished by the petitioner company before the Taluk Level Committee for the period from 2000-01 to 2016-17 were verified with the mining lease-wise transport permits issued to the petitioner company for raw sand, garnet, rutile etc. etc. with reference to the quantum of such minerals as permitted under the Approved Mining plan / Approved Scheme of Mining for the period from 2000-01 to 2007-08, and it reveals that the petitioner company have unlawfully mined and transported a huge quantum of raw sand, garnet, ilmenite etc. etc. 19. Likewise, for the period 2008-09 to 2012-13, petitioner unlawfully mined and transported huge quantum of raw sand, garnet, ilmenite etc. etc., the details of which are furnished hereunder: Sl.No. Mineral Quantum of minerals unlawfully mined and transported from 2000-01 to 2007-08. (In Metric Tonnes) 1 Raw sand 9,82,088 2 Garnet 1,91,077.72 3 Ilmenite 5,04,617.444 4 Rutile 1350 5 Zircon 3500 Sl.No. Mineral Quantum of minerals unlawfully mined and transported from 2008-09 to 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cochin, New Mangalore and Vizagapattinam have been requested by the 3rd respondent that the lessees cum illegal miners have no locus standi for export of beach sand minerals without valid transport permits issued by Deputy Director/Assistant Director of Geology and Mining concerned, and no export of beach sand minerals can be allowed in the absence of such permits by any competent authority. It was accordingly that respondents 1 and 2 have insisted the petitioner for production of necessary permits for transportation of the minerals. Therefore, it is submitted that, the source information is sought for as per Exts.P2 and P3 by virtue of the powers conferred under Sec.50 of the Customs Act, 1962. Accordingly, as an interim measure, all the exporters of beach sand minerals were required to produce the documentary proof obtained from the competent authority. 23. Further, it is stated that, as per the orders issued by the State Government dated 08.08.2013 and 17.09.2013, all transport permits for raw sand, semi-processed minerals and processed minerals were stopped by the authorities concerned. No stay has been granted against the said Government Orders. When the lessees filed writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2017. The petitioner is also prevented to run the units in the meantime by modifying the interim order. 27. Exts.R3(b) and R3(c) are the communications issued by the 3rd respondent to the Chairman, Cochin Port Trust and the Principal Commissioner of Central Excise respectively, with respect to the prohibition created and orders issued restricting mining and transportation of beach sand and the minerals derived from the same. That apart, it is submitted that, the State Government had stopped the mining operations for beach sand minerals and issuance of transport permits from September, 2013, to facilitate the inspection of the Special Team headed by the Revenue Secretary. Ext.R3(d) is the minutes of the District Level Committee meeting on prevention of illegal beach sand mining, and transportation of beach sand minerals held on 14.02.2017 shows the extent of stock of beach sand minerals illegally mined. Other contentions are also raised with respect to the illegalities committed by the petitioner, persuading the 3rd respondent, on behalf of the State of Tamil Nadu to issue communication, in order to protect the wealth of the nation as well as the State. Other restrictions are als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri. T.N. Rajagopalan, Government Pleader and Sri.K. Krishnamoorthy, Government Advocate along with Sri. Rajkumar K.R., for the 3rd respondent, and also the learned Standing Counsel appearing for 1st and 2nd respondents, Sri. Sreelal N. Warrier. Perused the documents on record and the pleadings put forth by the respective parties. 32. The facts submitted by the respective parties are very bulky and traversing through various aspects of mining, separation of minerals, stocking of the same, transportation, illegality with respect to stocking of the same, pre-export etc. etc. The paramount contention advanced by learned Senior Counsel for the petitioner is based on Sec.2(33) of the Customs Act, 1962, which is dealing with "prohibited goods" to mean; "any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported, have been complied with". So also, Sec.11 dealing with powers of Central Government to prohibit by notification, the export of any goods. Section 11H(a) defines "illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be sustained under law. 35. On the other hand, learned Additional Advocate General appearing for the 3rd respondent has taken me through the pleadings in the counter affidavit in extenso, the documents produced, the law applicable, enabling the 3rd respondent or the State of Tamil Nadu to issue notifications and other orders preventing illegal beach sand mining, transportation of the same, stocking the same etc. etc. 36. The paramount contention advanced is that, ultimately if it is found that the action of 1st and 2nd respondents issuing Exts.P2 and P3 are in order, the challenge made by the petitioner under a feeble manner against the power of the State of Tamil Nadu to make legislation is a subject matter outside the writ jurisdiction of this Court. Learned Additional Advocate General has invited my attention to Ext.P1 minutes of the meeting produced by the petitioner and submitted that, the District Level Committee in its meeting held on 18.10.2016 and 09.11.2016 have taken the decision on the basis of notification issued by the State Government mentioned in the narration of facts and the said authority is vested with ample powers in accordance with Sec.24 of the Mines and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e First Schedule in Part-B, after entry 11, entry 12 is inserted, viz., Beach sand minerals, that is, economic heavy minerals found in the teri or beach sands, which include ilmenite, rutile, leucoxene, garnet, monazite, zircon and sillimanite. Therefore, according to the learned Additional Advocate General, as the matter stands today, the said notification is in force and garnet, which is the subject matter of export attempted to be made by the petitioner is "specified mineral" in accordance with the notification issued by the Government of India. 40. Now, the predominant contention advanced by learned Senior Counsel for the petitioner is that, since the goods processed by the petitioner for export are 100% EOU, products stocked in Customs bonded warehouses are governed by the provisions of Foreign Trade Policy, 2015-2020 and the Foreign Trade Regulation, by which, petitioner is liable to produce only those documents which were specified during the discussion of export of the goods and respondents 1 and 2 are duty bound to facilitate export, when the petitioner produces such documents, enabling the petitioner to export the goods. 41. It is also the contention advanced by learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sustained under law. 44. So also, learned Standing Counsel appearing for the 1st and 2nd respondents pointed out that, power is conferred on such authority by virtue of the notification issued by the Government of India, Ministry of Commerce and Industry published in the Gazette of India Extraordinary Part-II, Section-3, Sub Section (ii) dated 04.06.2015 issued under Sec.5 of the Foreign Trade (Development and Regulation) Act, 1992, as amended from time to time, read with paragraph 1.02 of Foreign Trade Policy 2015-2020, the Central Government has made amendments in the Foreign Trade Policy 2015-20, which has come into force with effect from 01.04.2015. Paragraph 2.06 is amended, which deals with mandatory documents for export/import of goods from/into India, clause (a) deals with mandatory documents required for export of goods from India, they are: (1) Bill of Lading/Airway Bill/Lorry Receipt/Railway Receipt/Postal Receipt; (2) Commercial Invoice cum Packing List; and (3) Shipping Bill/Bill of Export. As per clause (c) of paragraph 2.06, for export or import of specific goods or category of goods, which are subject to any restrictions/policy conditions or require NOC or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2011. Therefore, the contention advanced by learned Senior Counsel for the petitioner that, so far as an export is concerned, the law that is to be taken into account is only the provisions of the Customs Act, the Foreign Trade Policy and the Foreign Trade (Development & Regulation) Act cannot be sustained at all. Therefore, "any other law" that is prescribed under Sec.2(33) as well as Sec.11H of the Customs Act, 1962, will also taken in any other prohibitory law. 48. In my considered opinion, if the intention of the Parliament was only the law relating to export as specified above, it should have been made specific in the Customs Act. Having not done so, and taking into account the provisions of MMDR Act, 1957, it is patent and clear, a harmonious and coordinated action is envisioned in the matter of providing mining lease, despite the fact that the Central Government is vested with powers for making Rules. It is also clear from the provisions thereunder, the entire operations are regulated, controlled and managed by the State Government. Apart from the same, a harmonious relationship is existing by and between the Union and the States, in accordance with the Federal prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the judgment of the apex court in 'Om Prakash Bhatia v. Commissioner of Customs, Delhi' [2003 (155) E.L.T 423 (S.C)] and the judgment of the High Court of Delhi in 'D.G. Exports v. Union of India' [2015 (319) E.L.T 276 (Del.)], to canvass the proposition that there can be no restriction as to export of any item, unless it is expressly provided under the Foreign Trade Policy or any law in force. In my considered opinion, the said judgments are rendered on the basis of factual circumstances involved in the said case and the facts on the case at hand are entirely different from the subject issues raised thereunder. 51. Learned Additional Advocate General has invited my attention to the judgment of the apex court in 'Common Cause v. Union of India and Others' [(2017) 9 SCC 499], and a Full Bench judgment of this Court in 'Prakash Nayak v. The District Collector, Kasaragod and Others' [2016 (4) KLT 102 (FB)], dealing with transportation of goods to Kerala, when there was a prohibition made by the State of Karnataka with respect to the goods transported viz., ordinary sand, and held that, once it is found that minerals include minor minerals, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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