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TMI Blog2020 (3) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... y manner including discharge, transportation, storage and usage thereof. 2.The petitioner is a manufacturer of Titanium Dioxide and other allied products. The basic material for the manufacture of Titanium Dioxide is ilmenite, which is a major mineral falling within the control and domain of the Central Government under the Mines and Minerals (Development and Regulation) Act, 1957 [hereinafter referred to as 'MMDR Act']. It is stated that the said mineral is a freely importable mineral as per the Union of India's Foreign Trade Policy. Admittedly, it is not mined in India. It has been purchased from other countries. For the import of the same, the documents namely commercial invoice, bill of lading, bill of entry have to be produced to the customs authorities as notified under the Foreign Trade (Development and Regulation) Act, 1992. The petitioner has been importing the minerals into the Country and used it for the purpose of 'home consumption'. 3.The petitioner had imported the ilmenite from Norway and shipped through the material mined by M/s.Titania AS of Joessingfjord, Norway. The petitioner had availed the services of M/s.Raja Agencies who is the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and thus, the materials were offloaded in the premises on 03.11.2019. After which, the first respondent caused an inspection of the same through the Assistant Director (Mines), the Tahsildar and the Village Administrative Officer. The above act of the respondents, according to the petitioner, was based on the presumption that the MMDR Act and Rules are applicable to the imports of atomic mineral. Therefore, the petitioner has moved this Court with respect to the import of ilmenite from the other countries by the petitioner. 6.The question that arises for consideration is whether the MMDR Act applies to imports. The MMDR Act is the Central Act which governs development and regulation of mines and minerals in terms of the powers vested in the Central Government. 'Reconnaissance Operation' and 'Reconnaissance Permit' are defined under Section 3 of the MMDR Act. The prospecting/mining operations to be under lease as defined under Section 4 of the said Act. However, Section 4 does not apply to import of minerals, if mining of which takes place outside India. Section 4(1A) reads that no person shall transport or store or cause to be transported or stored any mineral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the said Section is also inapplicable. In this regard, the learned counsel for the petitioner relied on the decision reported in 2019 SCC OnLine SC 298 [State Of Gujarat vs. Jayeshbhai Kanjibhai Kalathiya], in which, paragraphs 41 to 43 read as follows: "41)Insofar as Section 23-C of the MMDR Act is concerned, it was inserted by the Amendment Act of 1999 with the objective to prevent illegal mining. That is clearly spelled out in the Statement of Objects and Reasons. We may reproduce a portion thereof again: "(iii) A new provision is proposed to be inserted in the Act prohibiting transportation or storage or anything causing transportation or storage of any mineral except under the due provisions of the Act, with a view to preventing illegal mining. Further, the Act is proposed to be amended to cover the breach of the provisions of the proposed new provision of the Act to be punishable. It is also proposed to insert a new provision to provide for anything seized under the Act as liable for confiscation under court orders. A new section is proposed to be inserted to empower the State Governments to make rules for preventing illegal mining, transportation and storage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 23C applies only to minerals illegally mined and does not apply to regulate the transportation of legally excavated minerals. Admittedly, the mineral ilmenite was excavated from Norway and was shifted from that country to India. The relevant documents have been filed and on payment of the customs duty the minerals can be permitted to be taken. 12. In the case of The District Collector Vs. M/S.M.R.M. Ramaiya Enterprises [W.A(MD)No.1454 of 2017] it is held as follows: "28. As rightly contended by the Learned Senior Counsels appearing for the 1st and 7th respondents and upon perusal of the preamble and the entire provisions of MMDR Act, this Court can only come to the conclusion that the parent Act, from which the rule making power is derived by the State Governments itself does not deal with imported sand from another country and is applicable only for the development and regulation of mines and minerals under the control of the Union. Though it could be contended that once the sand is imported, the same would fall under the control of the union, the provisions of the Act do not contemplate such a situation. Further, this court is in complete consonance with the findings o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing import from foreign country and more so in the light of the fact that the Act, itself does not deal with imported minerals from another country. What is not available in the statute, cannot be created by drawing inference from another statute. 34. There is no quarrel over the ratio laid down in the above judgments. The answer to this contention is found in paragraphs 33 and 38 of the judgment of the Learned Single Judge, wherein the right of the State to bring in an enactment under Article 304 has been accepted. We agree with the said findings. The State is empowered to bring in an enactment subject to legal scrutiny. The rules framed, as rightly held by the Learned Single Judge, are in derivation of powers under Sections 15 and 23C and not under Article 304 of the Constitution of India." 13. Yet another contention raised by the learned Additional Advocate General is that though the Foreign Trade Policy allows import, the petitioner has to comply with the local laws. She also pointed out that para - 9 of the counter affidavit filed by the respondents 3 to 6 also reiterated the same. "9.It is further submitted that though the import of ilmenite as per the Foreign Trade Poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or served on the petitioner. The learned counsel for the petitioner also invited the attention of this Court to Section 45(6)(a) of the Mineral Conservation and Development Rules, 2017, which reads as follows: "45. Monthly and annual returns- (6) Any person or company engaged in trading or storage or end-use or export of minerals, shall submit to the Indian Bureau of Mines and concerned State Government, where the said person or company is sourcing the minerals, the returns in the following manner, namely:- (i) a monthly return which shall be submitted before the 10th of every month in respect of preceding month in Form N; " 16.If the above Rules are not complied with, it is open to the authority to invoke Rule 45(7) of the said Rules. But, however, there is no such action taken by the respondents. It is further stated that as the petitioner has been complying with the provisions of the Rules explicitly till date, none of the authorities under the said Rules can invoke the provisions of Rule 45(7). The District Collector is not an authority as contemplated under the Mineral Conservation and Development Rules, 2017 and the authority empowered to take action is only the Regio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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