DR.D.Y.CHANDRACHUD, J.

1. The Petitioners have a factory at Raigad which manufactures carbon black, fuel oil and other products. The raw material in the manufacturing activity is stated to consist of used ‘cut’ rubber tyres. The Petitioners claim to have the permission of the Maharashtra Pollution Control Board issued on 14 January 2011 (Exhibit B to the Petition). According to the Petitioners, under the customs tariff rules, import of used tyres with one cut falls under Open General License (OGL) and such goods are freely importable; the relevant entry being Item 4004 of Chapter 40 of the Customs Tariff. However, according to the Petitioners, tyres with multiple cuts and/or shredded tyres are restricted items which require a licence from the Director General of Foreign Trade. A copy of the licence issued by the Director General of Foreign Trade to the Petitioners is annexed to the Petition as Exhibit D. The licence which has been issued on 20 April 2011 inter alia contains the following endorsement:-

“This import is permitted through Nhava Sheva Port, subject to the condition that the permission for import is valid till the validity of the authorisation issued by the Maharashtra State PCB and the item of import should not be contaminated with any other waste and the Board shall regularly monitor the unit and keep the Ministry of Environment and Forest informed. This license is issued subject to actual user condition besides other usual conditions of import license.”

The licence has been issued for a quantity of 20,000 M.Tons.

2. The Petitioners claim to have imported ‘one cut’ tyresand multiple cut and/or shredded tyres. According to the Petitioners, the First and Second Respondents viz. the Chief Commissioner of Customs and the Commissioner of Customs (Import) at JNPT Port have created obstacles in the import of both sets of goods on the ground that the Petitioners do not have permission / licence required for goods falling under entry B3140 of Part B of Schedule III of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules 2008. The Petitioners submitted a representation on 15 June 2011 stating that no licence or permission is required from the Union Ministry of Environment and Forests, which is the Third Respondent. The First and Second Respondents have issued a public notice dated 21 April 2009 (Notice 22/2009) laying down the procedure for drawal of samples and testing.

3. The relief that has been sought in the Petition is that – (i) The First and Second Respondents be directed not to prevent the Petitioners from importing one cut tyres and/or shredded tyres without insisting upon a licence or permission from the Union Ministry of Environment and Forests; (ii) The First and Second Respondents be directed not to insist upon any licence from the Director General of Foreign Trade for importing tyres with one cut in bead wire (in two pieces), which are freely importable and (iii) The First and Second Respondents be directed to clear the consignments containing one cut tyres and/or shredded tyres by following the public notice dated 21 April 2009.

4. An affidavit in reply has been filed in these proceedings on behalf of the First and Second Respondents by the Assistant Commissioner of Customs and on behalf of the Third Respondent by the Deputy Director in the Ministry of Environment and Forests.

5. The First and Second Respondents have stated that public Notice 22/2009 was issued to provide a procedure for drawal of samples and testing of import consignments. The reason for the notice was that the volume of import and export trade has expanded over the last few years. The Customs Laboratories do not necessarily have the test equipment or facilities to conduct certain tests. Hence, in order to have a uniformity in approach for Laboratory testing, a committee was constituted for the three Customs Houses in Mumbai and pursuant to the recommendations of the Committee, the procedure for drawal