M/S. SANVIRA INDUSTRIES ...APPELLANT(S)
VERSUS
RAIN CII CARBON (VIZAG) LTD. & ORS. ...RESPONDENT(S)
CIVIL APPEAL NO(S). 3834-3838 OF 2023
CIVIL APPEAL NO(S). 3839-3843 OF 2023
The judgment concerns the allocation of quantities of Raw Pet-Coke (RPC), a residue from the refining of petroleum products, for industrial use. Pet-coke is cheaper and burns hotter than coal but has harmful effects due to the presence of sulfur and injurious particulate material. The appellant, Sanvira Industries, challenged the decision of the Delhi High Court that set aside the allocation of pet-coke by the Central Government.
The Director General of Foreign Trade (DGFT) determined criteria for the allocation of imported RPC and allocated it among various entities. The court, in a public interest litigation (PIL) case, directed the implementation of guidelines restricting the import of pet-coke only to industries using it as a feedstock or in their manufacturing process. Importers were required to obtain consent and registration from the State Pollution Board or Pollution Control Committee.
Sanvira Industries applied for allocation based on its production capacity of 200,000 metric tons (MT) of calcined pet-coke. The Environment Pollution Control Authority (EPCA) recommended a total import requirement of 1.4 million tons per annum (MTPA) and allocated 200,000 MTPA to Sanvira. However, Sanvira claimed that its capacity had increased to 330,000 MTPA and requested an enhanced allocation, which was rejected by the DGFT and the Committee.
Sanvira filed multiple applications and petitions challenging the decision, but they were dismissed by the Supreme Court and the Delhi High Court. The courts held that the earlier orders limited the import of RPC to a total of 1.4 million MT per annum and did not allow for expansion or enhancement of allocation based on increased production capacity.
The DGFT issued a public notice specifying the procedure for allocation of RPC, and Sanvira applied again, claiming a capacity of 330,000 MT. The DGFT allocated RPC based on production capacity determined by the State Pollution Control Board and rejected Sanvira's request for an increased allocation.
Rain CII, another party involved in the proceedings, challenged the increased allocation to Sanvira but was unsuccessful. The court held that the orders of the Supreme Court did not preclude the allocation of different quantities and that the production capacity had been determined based on the Consent to Operate certificate.
The Division Bench of the Delhi High Court upheld the decision of the Single Judge regarding the allocation of raw petroleum coke (RPC) import quotas. The Division Bench stated that the total capacity of all calciners, as assessed on October 9, 2018, was 1,172,750 metric tonnes per annum (MTPA), and the production and import necessary for calciners to continue producing pet coke from raw pet coke was assessed as 1.4 million metric tonnes per annum (MMTPA). The court emphasized that Sanvira's increased capacity of 130,000 MT was granted only on the basis of an agenda item placed before the APPCB on November 29, 2018, and it did not automatically entitle them to an increase in their share of the total import permissible. The court also clarified that minor adjustments or allocations to other entities did not affect the total permissible capacity as determined by the court.
Sanvira and the Government of India (GOI) argued that the judgment was erroneous and that the Public Notice dated April 17, 2020, introduced a change in the criteria by requiring certification by the State Pollution Control Board (SPCB) instead of the unit itself. They claimed that Sanvira's production capacity as certified by the Andhra Pradesh Pollution Control Board (APPCB) should be considered for allocation. However, Rain CII argued that the Committee had consistently rejected requests for capacity enhancement after October 9, 2018, and that there were no new facts or circumstances justifying a change in allocation.
The court analyzed the relevant documents and found that the initial capacity mentioned in the Consent to Operate (CTO) issued by APPCB for Sanvira was 200,000 MT, and the capacity increase to 330,000 MT was granted on November 29, 2018. The court emphasized that the CTO recorded the capacity as 2,00,000 TPA and stated that the industry should not increase the capacity beyond the permitted limit. The court noted that Sanvira had repeatedly claimed its increased capacity of 330,000 MT, but their requests had been consistently rejected. The court also highlighted that the GOI had maintained that any capacity added after October 9, 2018, would not be considered for allocation.
Based on these findings, the court concluded that the Public Notice dated April 17, 2020, did not introduce a change in allocation criteria. The capacity mentioned in the CTO was the relevant document, and Sanvira's claim of increased capacity was not considered as it was added after October 9, 2018. The court upheld the Division Bench's judgment, stating that there was no infirmity in its findings and conclusions.
July 3, 2023.