The requirement of BIS certification for the import of HARC is not mandatory unless the Central Government issues a Gazette notification specifying such requirement.

JUDGMENT

U.Durga Prasad Rao, J. - The challenge in both the writ petitions is to the refusal of the respondent/Customs officers of Customs House, Port Area, Visakhapatnam to issue customs clearance to the High Alumina Refractory Cement (for short, 'HARC') imported by the petitioners under the Bills of Entry and insisting for production of Bureau of Indian Standard certificate on the ground that HARC was incorporated as one of the products in Foreign Manufacturers Certificate Scheme (for short, 'FMCS') under the Bureau of Indian Standards Act, 2016 (for short, 'BIS Act, 2016') and Rules made there under along with Cement (Quality Control) Order, 2003 (for short, 'CQC Order, 2003') as illegal and without jurisdiction.

2. In W.P.No.24863/2020, the petitioner averred that in their ordinary course of business the petitioner imported HARC into India for their business operations. Earlier the respondents have never raised any requirement of compliance with the impugned CQC Order, 2003 qua the refractory cement imported. As usual the petitioner sought to import and clear the consignment of HARC vide Bill of Entry No.9002502 dated 30.09.2020 and 9815345 dated 04.12.2020 for stock and sale purposes. However, the respondent Customs authorities refused clearance of the aforesaid Bills of entry for the reason that the petitioner failed to produce proof of due compliance with the applicable Indian standards for the impugned 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 and Aluminous Cement CMA-72 (HARC) from Imerys Aluminates Asia Pacific Private Limited, Singapore vide Bill of Entry No.9784277, dated 02.12.2020. However, the respondent Customs authorities insisted for mandatory compliance of BIS certificate. The correspondence made by the petitioners explaining that HARC is not a cement and it is only a refractory material used to withstand high temperature in furnaces in steel and iron factories and therefore, HARC does not fall within the definition of cement given in Section 2(d) of CQC Order, 2003, did not find favour with the respondent authorities and they withheld the consignment.

Hence, the writ petitions.

4. The respondents 2 to 6 filed counter opposing the writ petitions and inter alia contending thus:

(a) It is submitted that the Custom Houses under the Central Board of Indirect Taxes & Customs (CBITC) is the implementing authority for the allied Acts, of which BIS Act, 2016 is a part. Therefore, refusal to admit the impugned goods into the country for non-production of certificate of BIS cannot be faulted in view of the safety and security of the public.

(b) It is true that till September 2020 the import of HARC by the petitioners was not obstructed and BIS certificate was not insisted. However, in O