BHARAT ZINK PRIVATE LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is carrying on the business of manufacturing pure zinc metal using zine waste as raw material. It processes zinc ash/zinc skimmings/zinc dross/zinc scrap/brass ash and recovers two grades of refined zinc metals. According to the petitioner the production in its factory is dependent upon import of raw material. The import of raw material is governed by the Foreign Trade (Development & Regulation) Act, 1990. Section 5 of this Act empowers the Central Government to formulate and announce by notification in the Official Gazette the export and import policy from time to time. In pursuance of this power the Central Government notified the Export and Import Policy for the period 1992-97. Prior to 1st April, 1995 there was no specific entry pertaining to hazardous wastes in the Negative list of imports in the Export & Import Policy, 1992-97. Therefore, import of hazardous astes as a category was not prohibited or restricted by the Policy. However, in the amended policy notified by the Central Government with effect from 1st April, 1995 the following entry was included at Sr. No. 8 in Schedule H of the restricted list of imports contained in Para 156: @5TB = Sr. No. Description of Nature of restriction Item @5TB = 8. Hazardous wastes Import permitted against a licence and only for the purposes of processing or re-use.

(2.) Thus, import of hazardous wastes was not absolutely banned. The only restriction was that it was permitted against a licence and for purposes of processing or re-use. Procedures were formulated in order to ensure that the import of such goods was allowed only to actual users who had the necessary facilities for processing or re-using these items as per the guidelines of State/Central Pollution Centrol Board(s): @SUBPARA = "The Hazardous Wastes (Management and Handling) Rules, 1989 were notified by the Ministry of Environment and Forest under the Environment (Protection) Act, 1986. These rules provide for a control for the generation, collection, treatment, transport, import, storage disposal of wastes listed in the schedule annexed to these rules. The implementation of these rules are through the identified State agencies viz. State Pollution Control Boards and the State Government (Department of Environment). The applicability of these rules have been stated in Rule 2 and the definitions are provided in Rule 3. @SUBPARA = "Rule 11. -Import of hazardous wastes : (1) Import of hazardous wastes from any country to India shall not be permitted for dumping and disposal of such wastes. However, import of such wastes may be allowed for processing or re-use as raw material, after examining each case on merit by the State Pollution Control Board or by an officer authorised in this behalf."

(3.) The petitioner applied for import licence to import zinc ash on 8th August, 1994. The application of the petitioner for grant of the import licence was placed before a high powered Special Licencing Committee consisting mainly of the Chairman, Central Pollution Control Board, the Joint Director, Ministry of Foreign Trade and the Director General of the said Committee after procuring reports about the functioning of the petitioner's plant granting the permission for import of the raw material in question. On the basis of the recommendation of the said Committee the Director General of Foreign Trade granted the import licence to the petitioner in June, 1995 which was valid for one year. Anticipating that the one year period would be expiring and question of renewal of licence and permission of the special high powered Committee for that purpose would become necessary, the petitioner started the process of seeking the permission as well as renewal of licence quite in advance.