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TMI Blog2021 (6) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CQC Order, 2003. Through the letter correspondence, the petitioner explained that the CQC Order, 2003 does not apply to the imported HARC but of no avail. The petitioner s claim is that HARC does not fall within the definition of cement mentioned in clause 2(d) of CQC Order, 2003 and hence, it does not require BIS certification. 3. The case of petitioners in W.P.No.49/2021 is also similar to the above writ petition. The petitioners company is engaged in manufacture and export of variety of specialised refractories including those falling under Chapter 69 of the First Schedule to the Customs Tariff Act, 1975. One of the raw material used by the petitioners company in the manufacture of its refractories is Aluminous Cement popularly known as HARC because alumina content therein is above 60%. The petitioners company has been regularly importing HARC since more than two decades from Imerys Aluminates Asia Pacific Private Limited, Singapore and availing the benefit of customs notification No.50/2017, dated 30.06.2017. Previously the Customs authorities never insisted for production of BIS certificate. While so, recently the petitioners company imported Aluminous Cement SECAR 68V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng but cement of a different grade which is covered under the phrase any other variety of cement . Further, the BIS have specified vide their website in October 2020 that IS:15895:2018 are applicable for import of HARC meant for refractory purpose. In that view, the 5th respondent vide letter dated 18.12.2020 insisted the importer to submit appropriate documentary evidence to show that the imported goods are compliant to the standards specified in BIS website. The petitioners are not admitting that HARC is specified by BIS and making misleading statements. The petitioners contention that the EXIM policy only mentioned about High Alumina Cement for structural Use and therefore, if the same is meant for refractory purpose the CQC Order is not applicable is totally incorrect. The requirement of BIS approval for HARC was specified well in advance by the BIS in October 2020. As the present consignments were imported during December 2020, the importers got ample time to insist and obtain BIS certification. The aforesaid goods are not prohibited and freely importable and clearance is subject to production of BIS certification, failing which the goods cannot be cleared for home consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efractory cement factories are quite different and one factory cannot produce the other type of cement. In common parlance and in trade, the High Alumina Refractory material was never understood as cement as technically also it is not. The ordinary cement is meant for strength in ordinary temperature whereas the refractory is meant for refractoriness at high temperature. He cited Associated Cement Co. Ltd. v. State of M.P MANU/SC/0470/2004 = 2005 (4) ALT 27 (SC) wherein the difference between ordinary cement and refractory cement is explained. He argued, in view of this difference, perhaps the Central Government has not included the HARC in the definition of Cement under Section 2(d) of the CQC Order, 2003. Learned senior counsel strenuously argued that since the CQC Order, 2003 was issued by the Central Government in terms of Section 14 of the BIS Act, 2016 and as refractory material was not included in the definition of cement, it can be safely concluded that HARC does not require the BIS certification. Learned senior counsel argued that the standards and products mentioned in FMCS are governed by the CQC Order, 2003. FMCS is a part of compulsory certification scheme of BI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsumed in that definition and liable for production of BIS certificate while imported. He took severe objection of petitioners argument that HARC is only a refractory material but not cement and emphasized that without production of BIS certificate the subject goods cannot get customs clearance. For another reason also learned counsel persisted that the subject goods require BIS certificate. As and when BIS notifies the quality specifications for new product(s) as an Indian standard, the said Indian standard would be deemed to be part of appendix III from the date of implementation of the said Indian standards and the import of that product(s) shall conform to the specified Indian standard in view of the para 2A of the General Notes regarding Import Policy. Since standards are prescribed for HARC by the BIS in 2018 and mentioned in the list of items at Sl.No.16 with the standard as IS:15898:2018, the exporter shall comply with the said standard by obtaining license from the BIS. He would argue that the BIS notified the HARC and later the petitioners imported the subject goods and therefore, they require BIS certification. Since the petitioners have not produced the said cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plunged in rebuilding their economies by enhancing the internal and international trade. Hence, quality control became quintessential to meet the qualitative requirements of foreign purchases and to survive the cutthroat competition. In that process, India too has taken several steps, one of which is the legislation of the enactment called the Bureau of Indian Standards Act, 2016. 12. As can be seen from the object of the BIS Act, 2016, Bureau of Indian Standards is like a Nodal Agency or a National Standards Body for the harmonious development of the activities of standardization, conformity assessment and quality assurance of goods, articles, processes, systems and services and for the matters connected therewith or incidental thereto. (i) Section 3 of the Act says that the Central Government by notification in the official gazette establish a national body called Bureau of Indian Standards for the purpose of this Act. The members of the Governing Council constitute the Bureau, on which superintendence, direction and management of the affairs of the Bureau shall vest. As per Section 7, the Central Government shall appoint a Director General of the Bureau. (ii) As per Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessed for conformity. Section 15 says that no person shall import, distribute, sell, store or exhibit for sale, any goods or article notified under sub-section (1) of Section 14, except under certification of the Bureau. 15. While Section 14 says that the Central Government for the purpose of trade may notify certain goods, Section 16 lays down for a different and avowed purpose the Central Government may notify certain goods. (vii) Section 16 depicts that if the Central Government is of the opinion that it is necessary or expedient to do in the public interest or for protection of human, animal or plant health, safety of the environment, or prevention of unfair trade practices, or national security, if may, after consulting the Bureau, by an order published in the Official Gazette, notify (a) goods or articles of any scheduled industry, process, system or service; or (b) essential requirements to which such goods, article, process, system or service, which shall conform to a standard and direct the use of the Standard Mark under a license or certificate of conformity as compulsory on such goods, article, process, system or service. (viii) Section 17 says tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific order in that regard. With the above jurisprudence the case on hand has to be tested. 18. Both the learned Standing Counsel for the respondents referred the definition of cement mentioned in the CQC Order, 2003 to contend that HARC is also included in the said definition, meaning thereby, it requires BIS certification. Hence, we perused the said order. The CQC Order, 2003 was passed by the Central Government in exercise of the powers conferred by Section 14 of the BIS Act, 1986. Section 2(d) defines the term cement thus: (d) cement means any variety of cement manufactured or sold in India and includes blast furnace slag cement, portland pozzolana cement, rapid hardening Portland cement, white portland cement, hydrophobic portland cement, ordinary portland cement, low heat portland cement, high strength ordinary portland cement, cement used for the manufacture of railway sleepers, masonry cement, oil well cement, super sulphated cement or any other variety of cement which the Central Government may, by notification in the Official Gazette, specify for the purposes of this Order. Be that it may, Section 3 says that No person shall himself or by any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se would under no circumstance buy refractory. Similarly a mason or a supervisor would under no circumstance use refractory material in making a normal construction. The refractory is used for entirely different purpose namely for furnaces, linings and for insulation. A dealer would not supply refractory to anyone wanting to buy cement. In Cemento Corporation Ltd. Vs. Collector of Central Excise MANU/SC/0881/2002 : 2002 ECR 551 (SC) it has been held that it is axiomatic that if the product is not cement but can be used for some purposes like cement, such product is not cement. We are, therefore, of the opinion that refractory material produced by the appellant does not fall within the Entry all types of cement and consequently it is not exigible to levy of export tax. Though the above judgment was rendered in the context of export tax, still reliance can be placed on it to distinguish between the refractory material and cement. For this and due to lack of Gazette Notification, including the HARC in definition of cement for the purpose of the CQC Order, 2003, the prohibition specified in that order cannot be made applicable to the imported goods in this case. 20. Nextly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard 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 citations in The Commissioner of Customs v. M/s. City Office Equipment of Madras High Court [25.04.2019] and The Commissioner, Customs v. M/s. Aba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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