M CHANDRASEKHAR Vs. DEPUTY COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) Petitioner is a company engaged in the manufacture of Poly Vinyl Chloride. Ethylene Di-chloride ('EDC' for short) is a raw material for manufacturing Poly Vinyl Chloride. The petitioner is importing into India EDC for their manufacturing activity. EDC is a substance included as insecticide in the Schedule to the Insecticides Act, 1968 ('the Act' for short). Section 38 of the Act provides that nothing in the Act would apply to any substance included in the Schedule, if the same is intended for a purpose other than preventing, destroying, repelling or mitigating any insects, rodents, fungi, weeds and other forms of plant or animal life not useful to human beings. It is stated that a purpose other than the purposes made mention of in Section 38 of the Act is generally called non-insecticidal purpose. Since the petitioner is using EDC for a non-insecticidal purpose, it is stated that they have been importing EDC without obtaining registration and import permit in terms of the Act. While so during 2007, the Commissioner of Customs, Mumbai, has issued Ext.P7 trade notice to the effect that importers of EDC for non-insecticidal purposes without registration and import permit in terms of the Act shall furnish a certificate within three months from the Central Excise Officer concerned to the effect that the imported substance has been consumed for their manufacturing activity. It is stated that in the light of Ext.P7 trade notice, the petitioner has been importing EDC thereafter in accordance with the same. It is also stated by the petitioner that later when some custom houses entertained doubt as to whether registration and import permit under the Act is required for importing insecticides for non-insecticidal purposes, the Central Board of Excise and Customs clarified, in terms of Ext.P9 circular that in the light of Section 38 of the Act, clearance of insecticides imported for non-insecticidal purposes would not be subject to the requirement of registration and import permit under the Act. It is stated that there has been absolutely no impediment whatsoever to the petitioner thereafter for importing EDC.

(2.) While so, during October 2017, when the petitioner filed Bill of Entry for clearing a cargo containing EDC imported by them from Saudi Arabia, they were issued Ext.P11 communication by the first respondent stating that import permit from the Central Insecticides Board and Registration Committee is required for importing insecticides for non-insecticidal purposes also. Ext.P11 communication refers to the minutes of 330th meeting of the Registration Committee constituted under Section 5 of the Act. Ext.P10 is the minutes of the said meeting of the Registration Committee under the Act held on 16.07.2012 . In the said meeting, the Registration Committee has prescribed a new proforma for issuance of import permit for import of insecticides for non-insecticidal purposes. The case of the petitioner is that Ext.P10 decision of the Registration Committee is ultra vires the Act. Since Ext.P11 communication is issued based on Ext.P10 decision, the petitioner seeks directions to the first respondent to permit them to clear consignments of EDC without insisting import permit from the statutory authorities under the Act.

(3.) A counter affidavit has been filed by the first respondent in the matter. It is reiterated by the first respondent in the counter affidavit that import permit in terms of the provisions of the Act is mandatory for importing EDC for non-insecticidal purposes. It is also stated by the first respondent in the counter affidavit that EDC comes within the purview of "Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989" and the petitioner, therefore, has to comply with the provisions of the said Rules also in the matter of importing EDC.