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SUPREME COURT OF INDIA
S. RAVINDRA BHAT, DIPANKAR DATTA, JJ.
M/s. Sanvira Industries – Appellant
Versus
Rain CII Carbon (Vizag) Ltd. & Ors. – Respondents
Civil Appeal No(S). 3834-3838 of 2023 With Civil Appeal No(S). 3839-3843 of 2023
Decided on : 03-07-2023
Industrial Law – Allocation of quantities of Raw Pet-Coke (RPC) – Estimation with respect to capacity and utilization of imported RPC was based on figures provided by industry itself – Consent issued by concerned SPCB or PCC had to clearly state what was capacity or quantity permitted for import by concerned unit – In present case, consent to Operate (CTO) issued by APPCB in Sanvira’s favour recorded total capacity at 2,00,000 TPA – Consistent position of GOI is that any capacity added by procedures after Order of this Court dated 09.10.2018 would not be taken into consideration while allocating RPC – Clarification of APPCB, that as on a particular date, production capacity was 3,30,000 MTPA was of no consequence, because it was CTO that was considered all along, in all previous meetings – Findings and conclusions of Division Bench cannot be faulted – There is no infirmity with findings and conclusions of Division Bench in impugned judgment. (Paras 20, 21, 24, 29 and 30)
Result : Appeals dismissed.
JUDGMENT :
S. RAVINDRA BHAT, J.
1. In these appeals, the allocation of quantities of RPC which is the abbreviation for raw pet-coke, a residue of the leftover from the refining of petroleum products and sand crude as well as other heavy oils, is in issue. Pet-coke is cheaper and burns hotter than coal and is, therefore, used as a fuel, for several industrial uses. However, tests on imported pet-coke and crude coke evidence that they have extremely harmful effects in as much as their residues thrown into the atmosphere contain Sulphur as well as injurious particulate material.
2. The appellant in one of the appeals is M/s. Sanvira Industries (hereafter “Sanvira”). It is aggrieved by the decision of the Delhi High Court1[Dated 10.01.2023 in LPA 25/2021; LPA 70/2021; LPA 71/2021, W.P. (C) 5749/2021, and W.P. (C) 6258/2022], which has interfered with and set aside the minutes of the meeting as well as the decision of the Central Government allocating pet-coke.
3. The necessary facts are that the Director General of Foreign Trade (DGFT) determined the criteria for the allocation of imported raw pet-coke (RPC) and allocated imported RPC among various entities. On 18.07.2018, the Central Ministry of Environment, Forest and Climate Change (“MoEF”), officers of the Environment Pollution (Prevention and Control) Authority for NCR and the Ministry of Petroleum and Natural Gas (“MPNG”) decided in principle that import of pet-coke be ought to be restricted only to industries using it as a feedstock or as part of their manufacturing process and not as fuel. This court - seized of the public interest litigation (“PIL”) in M.C. Mehta v. Union of India [W.P. No 13029/1985] (hereafter “M.C. Mehta Case”) directed implementation of the minutes of the meeting of 18.07.2018 by its order dated 26.07.2018. The MoEF issued an office memorandum further to this court’s order dated 10.09.2018, prescribing guidelines for regulation and monitoring of the import of RPC. Importers were obliged to obtain consent and registration issued by the concerned State Pollution Board or Pollution Control Committee (“SPB” and “PCC” respectively). Sanvira wrote on 12.09.2018 to the Environment Pollution Control Authority (hereafter “EPCA”) intimating its production capacity of calciners and indicated that its capacity was 2,00,000 MT. The EPCA on 06.10.2018 filed a report before this court with regard to the import of RPC for aluminium, calciner, and steel industries in the context of restrictions imposed on the import of RPC. This was pursuant to litigation in M.C. Mehta Case. The EPCA recommended that the total import requirement of RPC was 1.4 million tonnes per annum (“MTPA”) and Sanvira’s capacity was taken as 2,00,000 MTPA. The EPCA report stated inter alia as follows:
“A.1.1 Calciners
This industry imports different grades of pet coke and then upgrades this produce to produce calcined pet coke through removal of moisture, volatile matter and by changing the crystalline structure. The pet coke is used as a feedstock in the manufacturing process and not as a fuel. The calcined pet coke is sold to the aluminium industry for feedstock in smelting process.
These are 28 calciners in the country, of which 6 are port based and entirely dependent on imported raw pet coke. These 6 calciners, manufacture 72 percent of the calcined pet coke produced in the country.
The 6 companies are as follows:
1. Rain CII Carbon, plant based in Vizag, Andhra Pradesh.
2. Sanvira Industries, plant based in Vizag, Andhra Pradesh
3. Goa Carbon, with plants in Goa, Paradeep (Orissa) and Bilaspur (Chattisgarh).
4. Kalinga Calciners Pvt. Ltd., plant based in Paradeep (Orissa)
5. India Carbon Ltd., plant based in Budge Budge, West Bengal
6. Petro Carbon N Chemicals Pvt. Ltd. Plant in Haldia, West Bengal.
The industry cannot use domestic pet coke as that grade called anode grade – is not readily available.
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