M/S. SANVIRA INDUSTRIES versus RAIN CII CARBON (VIZAG) LTD. & ORS. on 3 July 2023

[2023] 10 S.C.R. 133 : 2023 INSC 586

M/S. SANVIRA INDUSTRIES

v.

RAIN CII CARBON (VIZAG) LTD. & ORS.

(Civil Appeal No(s). 3834-3838 of 2023)

JULY 03, 2023

[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]

Environment – Issue as to allocation of quantities of raw pet-coke (RPC) – Increased allocation to the appellant – Challengedby respondent, writ petition dismissed by Single Judge of High Court– Division Bench set aside the minutes of the meeting as well as thedecision of the Central Government allocating pet-coke – Appellantinter alia contended that there was a change of criteria adopted inthe Public Notice dtd.17.04.2020 issued by the GOI and contraryto the earlier requirement of certification of production capacity bythe Unit, the said Public Notice required certification by the StatePollution Control Board – In this case, the Andhra Pradesh PollutionControl Board (APPCB) certified appellant’s production capacityas on 09.10.2018 to be 3,30,000 MT and as per the appellant thatfigure was correctly considered while making allocation of RPC inits favour and thus, the impugned judgment was in error and thejudgment of the Single Judge was correct – Held: Division Benchcorrectly noted that the annual total limit of import of 1.4 MillionMetric Tonnes was based on the total production capacity as on09.10.2018 which had been fixed by Supreme court on the basis ofthe capacity disclosed by all the calciners – Barring the fact that aclarification was issued by the APPCB on 04.05.2020, there wasno change in circumstance – The material document to beconsidered was the Consent to Operate (CTO), which for the relevantperiod (i.e. as on 09.10.2018) was 2,00,000 MT per annum for theappellant – Even according to it, the claim for enhancement wasmade later, and the CTO for the increased capacity was issued onlyon 26.12.2019 – Thus, the clarification of APPCB, that as on aparticular date, the production capacity was 3,30,000 MTPA wasof no consequence, because it was the CTO that was considered allalong, in all previous meetings – Therefore, the findings andconclusions of the Division Bench cannot be faulted.

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134SUPREME COURT REPORTS

ADismissing the appeals, the Court

HELD: 1.1 The order of this court had fixed the outer limitof import of RPC at 1.4 million tonnes per annum. This was basedon the assessment by Environment Pollution Control Authority(EPCA) which evaluated the requirements of various industriesBand units, engaged in the production of diverse commodities andraw materials (such as steel, aluminium, cement, clinker and thoseof calciners). The EPCA took into consideration the availabilityof appropriate grade domestic pet-coke, the overall impact onthe environment and climate, of such essentially polluting feedCbased on this detailed examination, reported to this court, that1.4 MMT ought to be the cap for imported RPC. Concededly,the estimation with respect to the capacity and the utilization ofimported RPC was based on the figures provided by the industryitself. The EPCA report clearly states that the total capacity was1.17 million tonnes; in arriving at this figure the EPCA took noteDof the capacity based upon the Consent to Operate (CTO) issuedby the concerned Pollution Control Board. In the case of RainCII, the capacity recorded was 500,000 MTPA, and in the caseof Sanvira 2,00,000 MTPA. The guidelines for regulation andmonitoring of imported pet coke had been issued on 10thESeptember 2018 by an office memorandum – through the MOEF,GOI. [Paras 18 and 20][149-E-G; 150-D-E]

1.2 The consent issued by the concerned SPCB or the PCChad to clearly state what was the capacity or quantity permittedfor import by the concerned unit. In the present case, it is notFdisputed that the Consent to Operate (CTO) issued by APPCBin Sanvira’s favor recorded the total capacity at 2,00,000 TPA. Ifone sees the disputes in terms of these facts, what is clear is thatthe CTO mentions Sanvira’s capacity at 2,00,000 TPA. Sanvira’sposition is that the CTO for an additional 1,30,000 TPA wasgranted on 29.11.2018 and that the application for such capacityGwas made on 29.10.2018. [Paras 21 and 22][151-D, F-G]

1.3 The APPCB issued the CTO for the quantity of 3,30,000TPA only for 23.12.2019, the concerned Order APPCB/VSP/VSP/305/HO/CFO/2019. The consistent position of the GOI is that H

any capacity added by the procedures after the Order of this Courtdated 09.10.2018 would not be taken into consideration whileallocating the RPC. The minutes also recorded that Sanvira’sadditional capacity was created after this court’s order dated09.10.2018. From all these facts, it is evident that Sanvira kepton contending that its capacity was 3,30,000 MTPA. The minutesof the meeting dated 13.02.2020, also allude to the previousattempts by Sanvira, to have its capacity increased, as on09.10.2018 in an effort to secure more allocation. All suchcontentions were rejected. In this background, the viewexpressed by the single judge, that the principle for allocationwas changed somewhat in the public notice, dated 17.04.2020, isnot tenable. Interestingly, even as on that day, i.e. 17.04.2020,there was no confirmation by the APPCB that Sanvira’s unit hadthe capacity it claimed (3,30,000 MT annually). The CTO for thatcapacity had been issued only on 26.12.2019. As on that day, therewas nothing to show that the earlier CTO stood amended witheffect from the date it was issued (i.e. 24.02.2017), or any dateprior to 09.10.2018. In such background, Sanvira wrote to APPCB,on 21.04.2020 seeking a “clarification”. APPCB replied withrefreshing alacrity on 04.05.2020. This letter virtually becamethe gateway for a review of the entire system of allocation. Clearly,the GOI had altered its position, within five weeks, because inthe order dated 02.05.2020, in an application moved by Sanvira,in the pending writ petition, its position, through the statementof its counsel, was that there was no change in the allocationmethod, by the public notice of 17.04.2020. Despite the saidstatement, the Minutes of the meeting dated 03.06.2020, treatedthe letter of 04.05.2020 (by APPCB) as if Sanvira’s original capacitywas 3,30,000 MTPA, ignoring the consistent position, wherebyits claims to that effect were rejected about five times previously.[Paras 23-27][153-D-E; 154-B; 156-A-B, E; 157-E, H; 158-A]

1.4 The reasoning of the impugned judgment is that therewas no distinction (contrary to the conclusion of the single judge)regarding the public notice dated 17.04.2020 -between thecertificate in the first part and the consent to operate in the secondpart. The Division Bench noted, correctly that the annual totallimit of import of 1.4 Million Metric Tonnes was based on the AB

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Atotal production capacity as on 09.10.2018 which had been fixedby this court on the basis of the capacity disclosed by all thecalciners. It was also observed that an SPCB could indicate thepermissible limit of production of calcined petroleum coke. ForSanvira it was 2,00,000 MTPA; the consent to produce 3,30,000MTPA of coke was given only after 29th November 2018.BTherefore, it could not have been considered by the court. Thecertificate dated 04.05.2020 issued by the APPCB merely certifiedthat the installed capacity of Sanvira, as on 09.10.2018, formanufacturing calcined petroleum coke, was 3,30,000 MetricTonnes per annum in terms of the CTO. The total figure of 1.4CMillion Metric Tonnes of RPC was based on the permissiblecapacity as on 09.10.2018. The Division Bench, therefore,concluded that if production capacity had increased, theproportionate share to be given was after clearance by this court.The view expressed by the impugned judgment is correct. Barringthe fact that a clarification was issued on 04.05.2020, by theDAPPCB, there was no change in circumstance; the materialdocument to be considered was the CTO, which for the relevantperiod (i.e. as on 09.10.2018) was 2,00,000 MT per annum, forSanvira. Even according to it, the claim for enhancement wasmade later, and the CTO for the increased capacity was issued Eon 26.12.2019. In these circumstances, the clarification ofAPPCB, that as on a particular date, the production capacity was3,30,000 MTPA was of no consequence, because it was the CTOthat was considered all along, in all previous meetings. Therefore,the findings and conclusions of the Division Bench cannot befaulted. [Paras 28 and 29][158-E-H; 159-A-C]FM.C. Mehta v. Union of India [W.P. No 13029/1985] –referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3834-3838 of 2023.

GFrom the Judgment and Order dated 10.01.2023 of the High Courtof Delhi at New Delhi in LPA Nos. 25, 70, 71 of 2021, WPC No. 5749of 2021 and WPC No. 6258 of 2022.

With

Civil Appeal Nos. 3839-3843 of 2023.

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Tushar Mehta, Solicitor General, Kapil Sibal, K V Vishwanathan,Sonia Mathur, P Chidambaram, Mukul Rohtagi, C.S. Vaidyanathan, Sr.Advs., Ashish Prasad, Ms. Mukta Dutta, Vivek Singh, Ms. AnushaNagrajan, Ms. Sumedha Sarkar, Siddharth Sharma, Raj Bahadur Yadav,Shashank Bajpai, Sourav Roy, Rupesh Kumar, Madhav Singhal, ManishPushkarna, Syed Jafar Alam, Ms. Shivani Khandekar, Ms. ShivaniKahdekar, Gokul Holani, Ishan Bisht, Vinayak Goel, M/s. Ahmadi LawOffices, Shariq Ahmed, Tariq Ahmed, Sunil Kumar Verma, DhananjayaMishra, Arnav Dash, Nikhil Bhatia, Navneet Dogra, Ayan Rai, TVSRaghavendra Sreyas, Siddharth Vasudev, Advs. for the appearing parties.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. In these appeals, the allocation of quantities of RPC which isthe abbreviation for raw pet-coke, a residue of the leftover from therefining of petroleum products and sand crude as well as other heavyoils, 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 onimported pet-coke and crudecoke evidence that they have extremelyharmful effects inasmuch as their residues thrown into the atmospherecontain 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 HighCourt[1], which has interfered with and set aside the minutes of the meetingas well as the decision of the Central Government allocating pet-coke.

3. The necessary facts are that the Director General of ForeignTrade (DGFT) determined the criteria for the allocation of imported rawpet-coke (RPC) and allocated imported RPC among various entities.On 18.07.2018, the Central Ministry of Environment, Forest and ClimateChange (“MoEF”), officers of the Environment Pollution (Preventionand Control) Authority for NCR and the Ministry of Petroleum andNatural Gas (“MPNG”) decided in principle that import of pet-coke beought to be restricted only to industries using it as a feedstock or as partof their manufacturing process and not as fuel. This court - seized of thepublic interest litigation (“PIL”) in M.C. Mehta v. Union of India [W.P.No 13029/1985] (hereafter “M.C. Mehta Case”) directed implementation 1 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.

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Aof 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 orderdated 10.09.2018,prescribing guidelines for regulation and monitoring ofthe import of RPC. Importers were obliged to obtain consent andregistration issued by the concerned State Pollution Board or PollutionControl Committee (“SPB” and “PCC” respectively). Sanvira wrote onB12.09.2018 to the Environment Pollution Control Authority(hereafter“EPCA”) intimating its production capacity of calciners and indicatedthat its capacity was 2,00,000 MT. The EPCA on 06.10.2018 filed areport before this court with regard to the import of RPC for aluminium,calciner, and steel industries in the context of restrictions imposed on theCimport of RPC. This was pursuant to litigation in M.C. Mehta Case.The EPCA recommended that the total import requirement of RPC was1.4 million tonnes per annum(“MTPA”) and Sanvira’s capacity was takenas 2,00,000 MTPA. The EPCA report stated inter alia as follows:

“A.1.1 CalcinersD

This industry imports different grades of pet coke and thenupgrades this produce to produce calcined pet coke throughremoval of moisture, volatile matter and by changing thecrystalline structure. The pet coke is used as a feedstock inthe manufacturing process and not as a fuel. The calcinedEpet coke is sold to the aluminium industry for feedstock insmelting process.

These are 28 calciners in the country, of which 6 are portbased and entirely dependent on imported raw pet coke. These6 calciners, manufacture 72 percent of the calcined pet cokeFproduced 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, AndhraGPradesh

3. Goa Carbon, with plants in Goa, Paradeep (Orissa)and Bilaspur (Chattisgarh).

4. Kalinga Calciners Pvt. Ltd., plant based in Paradeep(Orissa)

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M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)139LTD. & ORS. [S. RAVINDRA BHAT, J.]5.India Carbon Ltd., plant based in Budge Budge, WestABengal

6. Petro Carbon N Chemicals Pvt. Ltd. Plant in Haldia,West Bengal.

The industry cannot use domestic pet coke as that grade calledanode grade – is not readily available. The structure of thepet coke in India is different therefore, import becomesessential.

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The industry also provided EPCA with details of the quantityrequired by the industry (see Annexure 1).

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According to this estimation, the 6 industries, with combinedproduction capacity of 1.17 million tonnes require 1.36 milliontonnes of imported petcoke to produce 1 million tonnes ofcalcined pet coke annually.

The industry has also informed EPCA that it meets S02, NOxand particulate emission standards, as stipulated by CPCB.

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A.1.2 EPCA Recommendation on Calciner Industry.

The Calciner industry should be allowed to import pet cokeas its industry uses it for feedstock and not for fuel. Thisimport is required as anode grade petcoke is not available insufficient quantities in the country.”

4. On 09.10.2018, based on the EPCA report, this court made anorder directing that RPC import cannot exceed 1.4 MMTPA and that itcould be used as feedstock for producing CPC. The figure of 1.4 MMTPAwas based on the production capacity of calciners given by each one ofthem. This became the basis of an order by this court dated 09.10.2018.As a consequence, on the same day, a notification[2] was issued by DGFTamending the foreign trade policy in relation to the import of RPC. Theamendment allowed the import of RPC for cement, calcium carbide,gasification, limekiln and graphite industries for use as feedstock or inthe manufacturing process on an actual user basis. The regulation andmonitoring of these imports were to be supervised on the basis ofguidelines issued by the MoEF on 10.09.2018. The DGFT thereafterproceeded to allocate specific quantities of RPC out of a total import G

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Aquantity of 1.4 million MT which was to be imported by each calciner onthe basis of actual production capacity.

5. While so, on 26.11.2018, a public notice[3] was issued by theMinistry of Commerce and Industries, stipulating the manner in whichDGFT would allocate the quota of RPC to eligible CPC manufacturingBunits within the given ceiling limit. According to this, eligible units wishingto avail of quota had to apply for an import license with a copy to thejurisdictional regional authority of DGFT along with the capacity of theunit as well as the consent certificate from the State Pollution ControlBoard in the name of the industrial unit user indicating the quantitypermitted for import and its use. On 27.12.2018, the DGFT, in furtheranceCof the first public notice initiated the process for allocating RPC. Itsallocation became the subject matter of controversy by Sanvira as wellas Rain CII, the respondent contesting in these proceedings. Sanviracontended that its production capacity was 330,000 MTPA which wasnot taken into account while providing allocation. The Committee disposedDof all these representations, not acceding to the request. Aggrieved,Sanvira, filed an application, being I.A.No. 12291/2019 in the proceedingsin M.C. Mehta’s Case before this court. The application specificallycontended that in September 2017, Sanvira initiated Phase-2 expansionto expand the capacity from 2,00,000 MTPA to 3,30,000 MTPA andPhase-2 expansion was completed in October 2018 and that a consentEto operate was received from the AP Pollution Control Board on29.11.2018.

6. On 28.01.2019, this court dismissed I.A. No. 12291/ 2019 inthe MC Mehta petition. Similar applications had been filed on behalfof others, including the contesting respondent (Rain CII). All theFapplications were rejected. The relevant portion of the order isreproduced hereunder:

“Heard learned counsel for the parties.

I.A. Nos. 168838 and 164302 of 2018 (Applications forGimpleadment) are rejected.

The order dated 09.10.2018 passed by this Court is clear.This Court has set the outer limit for import of raw pet cokecannot exceed 1.4 MT per annum in total.

In view of the aforesaid, prayers made on the basis ofexpansion etc. are totally misconceived and cannot beentertained. No further orders are required to be passed onthese I.As. i.e. I.A. Nos. 168847/2018, 1451/2019 & 1847/2019 [filed on behalf of Rain CII Carbon (Vizag) Ltd.], I.A.No. 164303 (filed on behalf of Saket Agarwal), I.A. No.12291/2019 (filed on behalf of Sanvira Industries Ltd.) andI.A. No. 13210/2019 (filed on behalf of Goa Carbon Ltd.).The same are hereby dismissed.”

7. On 22.03.2019, a second public notice, in regard to allocationwas issued. Sanvira had requested for enhancement of allocation toit,based on its claim of enhanced capacity to the extent of 1,30,000 MTPA.This application for enhancement was rejected by DGFT, which alsorejected a similar application for increased capacity by the contestingrespondent, Rain CII. The relevant part of the rejection order, dated22.04.2019 is extracted below:

“7. The committee also observed that M/s Rain (CII) hasdrawn attention to DGFT’s Office Memorandum No. 01 /93/180/03/AM-1 O/PC-2(A)/P-12485 dated 5th December, 2018.The Committee decided that in view of the order of the Hon’bleSupreme Court dated 28.1.2019 (as detailed in para. 5 inthis minutes), the above communication dated 5th December,2018 is infructuous.

8. In case of M/s Sanvira Industries Ltd. also, the Committeenoted that the additional capacity of 1,30,000 MT was createdafter the Hon’ble Supreme Court’s Order dated 9.10.2018 asper the official record. Hence, the request for additionalquantity for the new capacity was rejected by the Committee.”

8. The decision not to increase capacity, dated 22.04.2019 waschallenged before the Delhi High Court in writ proceedings, by Sanviraby way of WP(C) No 4485/2019. On 29.04.2019, at Sanvira’s request,the writ petition was adjourned to enable it to secure necessaryclarification from this court. For this purpose, Sanvira filed anotherapplication IA 73242/2019 reiterating that its capacity had been wronglyrecorded as 200,000 MTPA whereas it ought to be 330,000 MTPA. Itwas contended in that application that:

“(xiii) It is most humbly submitted that the issue that a totalproduction capacity of 330,000 MTPA of CPC had been AB

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installed by the Applicant prior to order dated 9.10.2018passed by this Hon’ble Court was not ,.pleaded before thisHon ‘ble Court in the Applicant’s IA No.12291 of 2019 assuch contention had earlier never been raised by the DGFT.

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9. On 08.07.2019, this court rejected Sanvira’s application (I.A.BNo. 73242/2019) in the following terms:

“INTERLOCUTORY APPLICATION NO. 73242/2019(APPLNS. FOR DIRECTIONS ON B/0 SANVIRA INDUSTRIESLTD.)

Our order is clear. No further clarification is required.

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This application is disposed of.”

10. After the above order, Sanvira moved its pending writ petitionbefore the Delhi High Court (WP No. 4485/2019). The High Courtnoticed the order of this court, rejecting Sanvira’s contentions. TheDrespondents in the writ proceeding i.e. DGFT were required, by theorder of the Delhi High Court, (dated 06.12.2019) to consider therepresentation of Sanvira and pass a reasoned order. Sanvira’s writpetition was therefore disposed of. On 13.02.2020, the Union Ministryof Commerce by its decision, recorded in the Minutes of Meeting rejectedSanvira’s request, stating inter alia, that:

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“6. [..] The Committee observed that the contention of M/sSanvira Industries Ltd. that the Hon’ble Supreme Court’s orderdated 28.01.2019 merely states that outer limit for import ofRPC had already been fixed and any prayer seekingenhancement of that limit cannot be entertained and that theFsaid order made no observation, as to whether the enhancedproduction capacity of the existing calciners were toconsidered or not is baseless. The Committee was of the viewthat the prayer before the Hon’ble Supreme Court (as in Para1) was “to enhance/increase the import limit of 1.4 MillionMT of RPC by an additional amount of 488,000 MT perGannum for manufacturing CPC at the Applicant’s SEZ Unitand accordingly direct the DGFT and other authorities,including the Ministry of Commerce, to allocate this additionalRPC to the Applicant. To which the Hon’ble Supreme Courtin its order dated 28.01.2019 directed that “the order passedHby this Court is clear. This Court has set the outer limit for import of Raw Pet Coke cannot exceed 1.4 MT per annum intotal. In view of the aforesaid, prayers made on the basis ofexpansion etc. are totally misconceived and cannot beentertained. No further orders are required to be passed onthese I.As. The same are hereby dismissed.” M/s Rain Cll(Vizag) Ltd. had prayed before the Hon’ble Supreme Court isclear neither the limit of 1.4 Million MT can be enhanced northe expansion of the capacity by the calciners can beentertained. The Committee, therefore, did not approve M/sSanvira Industries representation who was seeking allocationfor its additional capacity of 1,30,000 MT.

7. The Committee while consideration the submission of M/sSanvira Industries Ltd. was of the view that the capacity ofeach applicant was decided on the basis of Consent to Operatecertificate available with the firm on the date of passing oforder dated 09.10.2018 by the Hon’ble Supreme Court in WPNo.13029 of 1985. The firm was not having Consent toOperate on 09.10.2018 for their plant and accordingly it wasnot considered by the Committee which decided the allocationof pet coke amongst all eligible applicants.

8. M/s Sanvira Industries Ltd. after filing the W.P.(C) 4485/2019 & CM No.31904/2019 before the Delhi High Court,filed IA No.73242/2019, before the Hon’ble Supreme Courtinter alia praying to challenge the Minutes of Meeting dated22.04.2019 regarding allocation of RPC. The said applicationwas disposed of by the Hon’ble Supreme Court observing“our order is clear. No further clarification is required. Thisapplication is disposed of.” In view of the above directionsof the Hon’ble Supreme Court, where the minutes of themeeting dated 22.04.2019 has been challenged by thecalciners earlier, the Hon’ble Supreme Court has reiteratedthat no further clarification is required. Therefore, the EFCdecided that the request petitioner for allocation of RPC forits additional capacity cannot be acceded to.

9. The Committee while considering the submission of the M/s SanviraIndustries Ltd. was of the view that

i. the capacity of each applicant was decided on the basis ofconsent to operate available with the firm on 09.10.2018 i.e.

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the date on which the Hon’ble Supreme Court passed the order.The firm was not having consent to operate on 09.10.2018.Any other criteria for deciding the capacity will be a highlycontentious issue and will be fraught with endlessinterpretations.

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ii. That the firm had challenged the Minutes of Meeting dated22.04.2019 regarding allocation of RPC in Hon’ble SupremeCourt and the application was disposed of by the Hon’bleSupreme Court observing - “our order is clear. No furtherclarification is required. This application is disposed of.”

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C10. In view of the above, the Committee decided to reject thesubmission made by the applicant to allocate additionalquantity of RPC for the new capacity added by the firmafter09.10.2018.”

11. This decision was again challenged by Sanvira, by filing WPDNo. 1858/2020 before the Delhi High Court. On 17.04.2020, DGFT hadissued a public notice, which indicated the procedure for allocation ofquota for the import of PET coke (RPC and CPC); it inter alia statedthat:

ii. “The annual quantity limitation in import will be operatedEon fiscal year basis. · Accordingly, the total quantity permittedfor import per annum by the Hon’ble Supreme Court andavailable for import is

(i) Calcined Pet Coke for use as Calcined Pet coke inAluminium Industry is 0.5 Million MT and F(ii) Raw Pet Coke for CPC manufacturing industry is 1.4Million MT. This is available for all industrial units in thesetwo sectors including the petitioners.

iii. All eligible entities desiring to avail quota as mentionedabove, may apply for import license as per procedureGmentioned in Trade Notice No. 49 dated 15th March, 2019along with State Pollution Control Board Certificate (SPCB)/Pollution Control Committee (PCC) indicating capacity of theunit as on 9.10.2018 (Hon’ble Supreme Court Order in WritPetition No. 13029/1985 ) and also valid consent certificatefrom SPCB/ PCC, In the name of user industrial units H

indicating the quantity permitted for import and its usage ona monthly and yearly basis.

iv. Completed on line application form and the documentsmentioned at (iii) above must reach on or before 5th May2020. Application fee shall be paid in accordance with theprocedure as in Appendix 2K of Appendices &Aayat NiryatForms and deposited online along with the application.

v. If documents received are found in order, application willbe considered in Exim Facilitation Committee. (EFC) for importof restricted items and the concerned jurisdictional RA willgrant authorization. The import license/authorization will bevalid till 31.03.2021 only for the purpose of imports.

vi. If, after obtaining permission/ license, importer cannotutilize/ import the entire quantity for which the license hasbeen issued, the applicant shall Intimate the same to DGFT [REDACTED] and [REDACTED] on orbefore 31.12.2020 in order to facilitate distribution of theunutilized quota to other applicants who had appliedinitially..”

Sanvira responded to the public notice, by applying on21.04.2020, contending that its production capacity had increased to3,30,000 MT as in September, 2018. Sanvira also moved an application[CM Appl. No. 10528/2020 in WP (C) No. 1858/2020] seeking adirection that it ought to be allocated a proportionate quantity of RPChaving regard to its capacity of 3,30,000 MT. The High Court dismissedthe application observing that such a relief could not be claimed by anapplication, by its order dated 02.05.2020. The court also recorded theUnion’s objection to the grant of such relief; the Union had contendedthat repeated requests for enhancement was an abuse of the processof the court.

12. On 04.05.2020, the Andhra Pradesh SPCB issued a letterstating that as per its record, based on inspection of Sanvira’s unit, thelatter’s capacity for manufacture of calcinated petroleum coke was3,30,000 MT per annum and the power generation capacity was 16 MW.On 03.06.2020, the DGFT held a meeting to finalize the quantum ofallocation of CPC and RPC pursuant to the public notice dated 17.04.2020.Rain CII’s request for enhanced allocation based on its claim of increased ABC

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Acapacity was also considered. The minutes of meeting recorded on thatday, i.e. 03.06.2020 are as follows:

“4. M/s Rain CII Carbon (Vizag) Ltd, SEZ Unit has submittedan application for quantity of 4,88,000 MT of RPC in additionto an application for the DTA unit. It was noted that the CTOfrom Andhra Pradesh Pollution Control Board had beenobtained vide their Consent Letter dated 6.3.2020. TheCommittee noted that since the CTO does not specify theinstalled capacity as on 9th October 2018, the Committeeaccordingly decided to not consider the request for allocationof quota.

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6. The Committee examined the SPCB certificates of all theapplicants for RPC imports. On examination, Committeeobserved that the SPCBs have adopted varying conversionrates for calculating the requirement of RPC forproducing CPC. In their CTO certificates, the Committee alsonoted that consumption requirement is not indicated in SPCBcertificates of all the firms. To bring uniformity, the Committeedecided to allocate RPC by adopting following criteria:

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i. The production capacity of the applicant is to be calculatedon annual basis. Wherever, SPCB certificates showsproduction figures in TPD, the annual production capacity isto be arrived at by multiplying the capacity with 350 days(average operational days for the unit) to bring uniformity.

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ii. The production capacity for each applicant to be convertedto input/raw material requirement by taking industry averageconversion rate i.e. 1:1.36 (as mentioned in the EPCA report).

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iii. The additional capacity added by the applicants after theHon’ble Supreme Court’s order dated 9.10.2018 is not takeninto consideration; G

iv. The quota be divided on a proportionate basis as per thefollowing formula:- Quota allocated = Total Quota available for allotmentmultiplied by the demand of applicant divided by the Totaldemand for all applicants H

v. In cases where requested quantity is lower than eligiblequantity, the surplus on their heads are redistributed amongothers proportionately.”

13. Rain CII challenged the increased allocation to Sanvira, in itswrit petition. A learned single judge, after considering the pleadings andsubmissions of the parties, sought to distinguish the various public noticesissued by the GOI, and was of the opinion that this court’s orders did notpreclude the allocation of a different quantum as the orders were onlyindicative of the total quantity that could be imported. The single judgeconsidered the previous orders of the committee and said that it placedreliance on the orders of this court and also clarified that productioncapacity had been determined on the basis of “Consent to Operate” as“any other criteria for deciding the capacity will be highlycontentious issue and will be fraught with endless interpretation.”The court also held that the Public Notice dated 17.04.2020 was notchallenged by Rain CII and, absent such challenge, it was not for thecourt to adjudicate whether a certificate issued by the APPCB certifyingthe production capacity of M/s. Sanvira Industries in the absence of theConsent to Operate as on 09.10.2018 would suffice for making allocationof RPC in its favour. The court also held that the validity of theAPPCBcertifying the production capacity of M/s. Sanvira Industries ason 09.10.2018 was not in challenge. On the basis of all these reasoning,Rain CII’s petition was rejected.

14. Rain CII preferred appeals and writ petitions to the DivisionBench of the Delhi High Court[4], challenging the judgment of the SingleJudge and also impugning the public notice dated 17.04.2020. The DivisionBench, in its impugned judgment, held that on 09.10.2018, when thiscourt passed the order, every calciner had given its capacity. The totalcapacity of all the calciners put together came to 11,72,750 MTPAs andthe production and the total import that was necessary for the calcinersto continue producing pet coke from raw pet coke was assessed as 1.4MMTPA. This was based entirely on the total production capacity. On09.10.2018, Sanvira’s recognition to increase its capacity from 2,00,000Metric Tonnes to 3,30,000 MT had not been placed, rather the consentto operate dated 22.04.2017 restricted Sanvira to produce only 200000MTof pet coke. The impugned judgment held that Sanvira’s increased 4 LPA 25/2021; LPA 70/2021; LPA 71/2021, W.P. (C) 5749/2021, and W.P. (C) 6258/2022 Rain CII Carbon (VIZAG) Ltd. vs. Union of India and Ors.

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Acapacity (of 1,30,000 MT) was granted only on the basis of an agendaitem placed before the APPCB on 29.11.2018 and that though Sanviracould produce 3,30,000 MTs, that did not automatically lead to theinference that they were entitled to an increase in their share of the totalimport permissible by the orders of this court, dated 09.10.2018. Thecourt also held that the fixation of 1.4 MMTs per annum was on theBbasis of the total capacity of each of the calciners. It was held thatminor adjustments or a few more persons were permitted to get a shareof the raw pet coke without affecting the capacity given under the EPCAReport did not mean that the total permissible capacity was variable forthe reason that the inter se allocation was made only on theallocation ofCthe capacity essentially on the six calciners. The reasoning made in thejudgment of the single judge that the public notice dated 17.04.2020distinguishes between the certificate in the first part and the consent tooperate in the second part and if both, the certificate and consent to operate,were of the same document, then there was no need to mention both inthe two parts of the public notice and thus granting of certificate by APPCBDwas reasonable, was held to be contrary to the entire scheme as envisagedby this court. The total limit of import of 1.4 MMTPA was based on thetotal production capacity as on 09.10.2018 which had been fixed by thecourt on the basis of the capacity disclosed by the calciners themselves.

15. It is argued on behalf of Sanvira and the GOI, which are inEappeal, by special leave that the impugned judgment is in error and thatthe judgment of the single judge is correct. It is argued that there was achange of criteria adopted in the Public Notice dated 17.04.2020 issuedby the GOI. Contrary to the earlier requirement of certification ofproduction capacity by the Unit, the Public Notice dated 17.04.2020,Frequired certification by the SPCB. In this case, the APPCB certifiedSanvira’s production capacity as on 09.10.2018 to be 3,30,000 MT andthat figure was correctly considered while making allocation of RPC inits favour.

16. It was urged that in the absence of any challenge to the PublicNotice dated 17.04.2020 or the certificate issued by the APPCBGregarding Sanvira’s production capacity (as 3,30,000 MT as on09.10.2018), the challenge by Rain CII was untenable and was liable tobe rejected. It is argued that the orders dated 28.01.2019 and 08.07.2019of thiscourt merely clarified that the overall import of RPC has to beconfined to 1.4 MMTPA. This court did not consider Sanvira’s claimHthat as on 09.10.2018 its production capacity was in fact, 3.30 lakh MT.

17. In reply Rain CII argued that the Committee had from thevery beginning rejected requests for enhancement of allocation on theground that any capacity increase after 09.10.2018 would not be takeninto consideration. This consistent stand was reflected in the EPCA’sminutes of the meeting prior to 03.06.2020. In fact, even the GOIdefended the rejection of Sanvira’s request, barely five weeks beforethe impugned allocation by contending before the High Court that Sanvirawas abusing the judicial process by repeatedly requesting the same relief.Having regard to these facts, there is no change of circumstances -much less new development or new facts which could have persuadedthe committee as held by the Single Judge. There was in fact no changein the criteria. On behalf of Rain CII, it was highlighted that all factspertaining to the alleged increase in capacity prior to 09.10.2018 i.e. theissuance of the CTO, the fact that inspection had been conducted bySanvira’s creditors i.e. State Bank of India on 28.09.2018, were allmentioned in the previous requests for enhancement and even in thetwo applications filed before this Court. Having regard to all thesecircumstances, the issuance of the certificate or letter by the APPCBalmost two years after 09.10.2018, certifying that the second phase ofSanvira’s expansion had increased its capacity by 1,30,000 MT, was notany new development. In these circumstances the view expressed bythe Division Bench in the impugned order was reasonable.

18. The facts reveal that the order of this court had fixed theouter limit of import of RPC at 1.4 million tonnes per annum. This wasbased on the assessment by EPCA which evaluated the requirements ofvarious industries and units, engaged in the production of diversecommodities and raw materials (such as steel, aluminium, cement, clinkerand those of calciners). The EPCA took into consideration the availabilityof appropriate grade domestic pet-coke, the overall impact on theenvironment and climate, of such essentially polluting feed based on thisdetailed examination, reported to this court, that 1.4 MMT ought to bethe cap for imported RPC.

19. The EPCA which examined the issue elaborately raised theconcern that RPC is a highly polluting fuel in its report (No. 91) to thiscourt:

“EPCA concern is that pet coke is a highly polluting fuel andtherefore, after months of deliberations there has been anagreement to control the import of this fuel. The exemptions AB

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given to industries should not negate the efforts being madeto control the usage of this fuel in the country.

This is all the more important as it is difficult to ensure thatthe industries do not use the fuel for combustion or that theuse of the pet coke does not lead to pollution because ofBfugitive emissions.”

The recommendations of EPCA in the same report are as follows:

“A.1.2 EPCA Recommendation on Calciner Industry The calciner industry should be allowed to import pet cokeCas its industry uses it for feedstock and not for fuel. Thisimport is required as anode grade pet coke is not available insufficient quantities in the country.”

20. Concededly, the estimation with respect to the capacity andthe utilization of imported RPC was based on the figures provided by theDindustry itself. The EPCA report clearly states that the total capacitywas 1.17 million tonnes;in arriving at this figure the EPCA took note ofthe capacity based upon the Consent to Operate (CTO) issued by theconcerned Pollution Control Board. In the case of Rain CII, the capacityrecorded was 500,000 MTPA, and in the case of Sanvira- 2,00,000MTPA. The guidelines for regulation and monitoring of imported petEcoke had been issued on 10[th] September 2018 by an office memorandum– through the MOEF, GOI. The relevant guidelines are extracted below:

“1. Guidelines for Regulation and Monitoring of ImportedPetcoke in India

“1. Guidelines for Regulation and Monitoring of ImportedPetcoke in India FAs per notification of Director General of Foreign Trade(DGFT) dated 17.08.2018, imported of Petcoke for use asfuel is prohibited. However, import of Petcoke is allowed forthe following industries namely, cement, lime kiln, calciumcarbide and gasification for use a feedstock or in themanufacturing process only on actual user basis as per theGconditions stipulated below:

(1) Petcoke importing industries namely, cement, like kiln,calcium carbide and gasification shall obtain the consent ofand registration with the concerned State Pollution ControlBoards (SPCB) / Pollution Control Committees (PCC).

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(2) Consent issued by the concerned SPCB /PCC shall clearlyspecify the quantity permitted for import and its use on a permonth and per annum basis.

(3) Only registered industrial units with valid consent fromSPCBs/PCCs as per clause (1) shall be permitted to directlyimport pet coke and consignment shall be in the name of userindustrial units for their own use only.

(4) Import of pet coke for the purpose of trading shall not bepermitted.

(5) Authorised importers of Petcoke shall furnish openingand closing stock of imported Petcoke to the concerned SPCB/PCC on a quarterly basis.”

21. As can be seen, the consent issued by the concerned SPCBor the PCC had to clearly state what was the capacity or quantitypermitted for import by the concerned unit. In the present case, itis notdisputed that the Consent to Operate (CTO) issued by APPCB inSanvira’s favor recorded the total capacity at 2,00,000 TPA. The copyof this CTO dated 24.04.2017 has been placed on record, which statesas follows:

Interestingly, the same CTO also records as follows:

“10. The industry shall not increase the capacity beyond thepermitted capacity mentioned in this order.”

22. If one sees the disputes in terms of these facts, what is clearis that the CTO mentions Sanvira’s capacity at 2,00,000 TPA. Sanvira’sposition is that the CTO for an additional 1,30,000 TPA was granted on29.11.2018 and that the application for such capacity was made on29.10.2018. It argued for the longest period (unsuccessfully) that thoughthe CTO for the increased capacity was issued on 29.11.2018, thatcapacity had in fact existed prior to that date. It relied heavily upon theInspection Report, by its creditor - the State Bank of India and thereport of the Inspecting Officer of the APPCB dated 03.10.2018. Thesefacts were repeatedly mentioned and urged on several occasions A

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Aincluding the two applications filed before this Court. Although theorder of this court is cast in general terms, the fact remains that apointed reference to increased capacity was made on 08.07.2019 whichrejected the claim for clarification. That claim for clarification wasbased upon Sanvira’s plea with respect to its increased productioncapacity to 3,30,000 TPA.B

In its application I.A. No 73242/2019, Sanvira contended as follows:

“(a) In September 2017 the applicant initiated capacityaddition from 200,000 to 330,000 MTPA comprising ofapproximately furnaces having a capacity of 40,000 MTPAeach and expansion of power point_ capacity from 8 MW to16 MW.

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(b) The total cost of capacity addition undertaken by theApplicant is Rs. 75 Crores, of which Rs. 50 Crores has beenraised through a loan from EXIM Bank. Copy of loan sanctionletter dated 03.01.2018 issuing by EXIM Bank is annexedhereto and marked as Annexure A-4 (Pages 30-56).

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(c) By March 2018, the Applicant had installed the firstfurnace of 40,000TPA and had a total installed capacity of240,000 MTPA. Minutes of the consortium of Bank meetingdated 05.05.2018 and 13.08.2018 which note that 240,000MTPA capacity was operational since 01.08.2018 are annexedhereto and Marked as Annexure A-S (Pages 57 -6) andAnnexure A-6 (Pages 62-67).

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Report dated 17.04.2018 of the Lender Engineer appointedby the Bank Consortium which notes that Applicant haderected and commissioned additional CPC capacity of 40,000MT as of 28.02.2018 is annexed hereto and marked asAnnexure A-7 (Pages· 68-71).

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(d) By June 2018, the Applicant had a total installedproduction capacity of 330,000 MTPA having completedInstallation of furnaces (which comprise of the CPCproduction facility). Power plant related works were at thefinal stages of completion. Progress Report dated 30.06.2018submitted to the Lenders by the Applicant is annexed heretoand marked as Annexure A-8 annexed (Pages 72-75).

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The report also indicates that the Applicant had spent theentire sanctioned loan amount of Rs. 50 Crores by30.06.2018.

(e) By September 2018, the Applicant had also completedpower plant expansion (except for turbine Installation).Turbine and ACC were the final stages of completion, ProgressReport dated 30.09.2018 submitted to the Lenders by theApplicant is annexed hereto and marked as Annexure A-9(Pages 76-79)

Site Inspection Report dated 28.09.2018 of State Bank of Indiareporting the progress of capacity addition from 200,000MTPA to 330,000 MTPA is annexed hereto and marked asAnnexure A-10 (Pages 80-82).

(f) On 27.11.2018 the APPCB issued consent to operate theadditional capacity. Copy of Consent Order dated 29.11.2018issued by the APPCB is annexed hereto as Annexure A-11(Pages 83-87).”

23. It is a matter of record that the APPCB issued the CTO forthe quantity of 3,30,000 TPA only for 23.12.2019, the concerned OrderAPPCB/VSP/VSP/305/HO/CFO/2019. The relevant part of the CTO(dated 26.12.2019) reads as follows:

“This consent order is valid for manufacture the followingproducts along with quantities indicated only:

The industry is permitted to use the following quantity of petcoke as feed stock to produce Calcined Petroleum 3,30,000Tons/ Annum:

This order is subject to the provisions of ‘the Acts’ and theRules’ and orders made thereunder and further subject to the AB

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terms and conditions incorporated in the schedule A, B & Cenclosed to this order.”

24. The consistent position of the GOI is that any capacity addedby the procedures after the Order of this Court dated 09.10.2018 wouldnot be taken into consideration while allocating the RPC. This is clearfrom the narration from the Order made on 13.02.2020 which recordsas follows:

“(iii) Procedure for allocation of quota for import of Raw PetCoke for CPC manufacturing industry was notified by PublicNotice No. 81/2015-20 dated 23.03.2019. As per the PublicNotice the EFC in DGFT has to evaluate and allot quotaamong applicants.

(iv) Accordingly, a meeting of the EFC was held on05.04.2019. In order to bring uniformity in allocation of RPCit was decided to allocate as per the production capacity ona proportionate basis. One of the criteria adopted by thecommittee was that the additional capacity added by theapplicants after the Supreme Court’s order dated 09.10.2018will not be taken into consideration while allocating RPC. Inthe meeting held on 05.04.2019 for considering allocationof 1.4 million MT of Raw Pet Coke, the committee observedthat M/s Rain CII Carbon (Vizag) Ltd. and M/s SanviraIndustries Ltd. had submitted additional requirement of4,88,000 MT and 1,30,000 MT of RPC respectively. Thecommittee further observed that M/s Rain CII Carbon (Vizag)Ltd. and M/s Sanvira Industries Ltd. were also both petitionersbefore the Supreme Court of India in IA Nos. 1451 of 2019and 1229/2019 in the W.P.(C) 13029/1985, where the prayerbefore the Hon’ble Supreme Court was- a. to enhance/increase the import limit of 1.4 Million MT ofRPC by an additional amount of 488,000 MT per annum formanufacturing CPC at the Applicant’s SEZ Unit andaccordingly direct the DGFT and other authorities, includingthe Ministry of Commerce, to allocate this additional RPC tothe Applicant.

b. to enhance/increase the import limit of 0.5 million MT ofCPC by an additional amount of 3 70,000 MT per annum for blending purposes at the Applicant’s SEZ Unit, subject to thecondition that the Applicant exports CPC of equivalent qualityof its CPC imports and accordingly direct DGFT and otherauthorities, including Ministry of Commerce, to allocate thisadditional CPC to the Applicant; and

c. to direct the Development Commissioner, APSEZ to grantan extension of the Letter of Approval for the SEZ Unit beingset up by the Applicant in the Andhra Pradesh SpecialEconomic Zone, a sought by the Applicant vide letter/application dated 31October, 2018; and

d. pass such further/orders as in the facts and circumstancesof this case be deemed fit and proper. “

(v) . The Hon’ble Supreme Court in its order dated 28.01.2019while disposing off the I.A. No.168847/2018, 145112019 &1847/2019 (filed on behalf of Rain Carbon), I.A. No.12291/2019 (filed on behalf of Sanvira Ind. Ltd.) and I.A. No.164303(filed on behalf of Saket Agarval) and I.A. No. 13210/2019(filed on behalf of Goa Carbon Ltd.) had pronounced that“the order passed by this Court is clear. This Court has setthe outer limit for import of Raw Pet Coke cannot exceed 1.4MT per annum in total. In view of the aforesaid, prayers madeon the basis of expansion etc. are totally misconceived andcannot be entertained. No further orders are required to bepassed on these LA.s The same are hereby dismissed.”

(vi) The Committee having noted that the request for additionalrequirement of RPC by these two applicants have been setaside by the Hon’ble Supreme Court decided that it cannotgrant any extra quality based on the new capacity added bythese two firms after the date of the order of the Hon’bleSupreme Court i.e., 09.10.2018. the Committee uploaded thedraft Minutes of the EPC meeting (held on 05 .04.2019) onDGFT website to enable the applicants to represent theirgrievances by 15.04.2019 and based on the representation,if any. Committee will take a decision and allocate the finalquantity.”

The same documents i.e., the minutes also recorded that Sanvira’sadditional capacity was created after this court’s order dated 09.10.2018.

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A25. From all these facts, it is evident that Sanvira kept on contendingthat its capacity was 3,30,000 MTPA. The minutes of the meeting dated13.02.2020, also allude to the previous attempts by Sanvira, to have itscapacity increased, as on 09.10.2018 in an effort to secure moreallocation. All such contentions were rejected. In this background, theview expressed by the single judge, that the principle for allocation wasBchanged somewhat in the public notice, dated 17.04.2020, is not tenable.The relevant part of that notice reads as follows:

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“All eligible entities desiring to avail quota as mentionedabove may apply for import license as per procedurementioned in Trade Notice No. 49 dated 15th March 2019Calong with State Pollution Control Board Certificate (SPCB)/Pollution Control Committee (PCC) indicating capacity of theunit as on 9.10.2018 (Hon’ble Supreme Court Order in WritPetition No. 13029/1985) and also· valid consent certificatefrom SPCB/ PCC, In the name of user industrial unitsDindicating the quantity permitted for import and its usage ona monthly and yearly basis.”

Interestingly, even as on that day, i.e. 17.04.2020, there was noconfirmation by the APPCB that Sanvira’s unit had the capacity it claimed(3,30,000 MT annually). The CTO for that capacity had been issuedEonly on 26.12.2019. As on that day, there was nothing to show that theearlier CTO stood amended with effect from the date it was issued (i.e.24.02.2017), or any date prior to 09.10.2018. In such background, Sanvirawrote to APPCB, on 21.04.2020 seeking a “clarification”:

“To

FThe Environmental Engineer

Andhra Pradesh Pollution Control Soard

Regional Office, Visakhapatnam

Andhra Pradesh

Dear Sir,

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21·04·2020

Sub: Request to certify installed capacity of Sanvira Industrieslimited as on 09.10.2018 as 330, 000 MTPA of CalcinedPetroleum Coke Sanvira Industries Limited had completedline-2 expansion (130,000 MTPA) of its Calcined Petroleum H

Coke (CPC) production facility by September 2018 thus takingIts total production capacity from 200,000 MTPA to 330,000MTPA as per record.

For allocation of Raw Petroleum Coke for FY 2020-21, DGFThas stated vide public notice No. 04/2015·20 dated 17th April2020 that a certificate indicating capacity of the unit as on09.10.2018 is required from the State Pollution Control Board.

We sincerely request you to provide such a certificate toenable us to apply for the RPC allocation for FY 20·21.”

APPCB replied with refreshing alacrity, on 04.05.2020, inter alia,clarifying that:

“With reference to the above letter, upon examining the recordsof this office and other relevant information available duringthe inspections it is to certify that the installed capacity of M/s Sanvira Industries, Chatametta Village, Visakhapatnam Distas on 09.10.2018 for manufacture of calcined petroleum cokewas 3,30,000 MT per annum and the power generationcapacity was 16 MW.”

26. This letter virtually became the gateway for a review of theentire system of allocation. Clearly, the GOI had altered its position,within five weeks, because in the order dated 02.05.2020, in an applicationmoved by Sanvira, in the pending writ petition, its position, through thestatement of its counsel, was that there was no change in the allocationmethod, by the public notice of 17.04.2020:

“4. Ms. Maninder Acharya, learned ASG submitted thatrepeatedly the applicant/petitioner has been seeking the samerelief which was denied to it by the Supreme Court and notonly the instant application but the writ petition itself was anabuse of the process of the court. The learned ASG submittedthat merely because a public notice was issued, no fresh causeof action accrued in favour of the applicant/petitioner andits grievance, if any could be redressed only by approachingthe Supreme Court.”

27. Despite the above statement, the Minutes of the meetingdated 03.06.2020, treated the letter of 04.05.2020 (by APPCB) as ifSanvira’s original capacity was 3,30,000 MTPA, ignoring the consistent A

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Aposition, whereby its claims to that effect were rejected about five timespreviously. Keeping this background, the single judge concluded as follows:

“37. A reading of the above Public Notices would show themarked departure made in the Public Notice dated 17.04.2020.While in terms of the Public Notices dated 26.11.2018 andB22.03.2019, the eligible entities were to produce “capacityof the unit and a valid consent certificate from SPCB/PCC”,in terms of Public Notice dated 17.04.2020, the eligible entitieswere to produce “State Pollution Control Board Certificateindicating capacity of the unit as on 09.10.2018 and alsovalid consent certificate from SPCB/PCC”. Therefore, whileCunder .the Public Notices dated 26.11.2018 and 22.03.2019, the applicant was to produce documents showing itsProduction capacity, in the Public Notice dated 17.04.2020,only a Certificate from the State Pollution Control Boardindicating capacity of the unit as on 09.10.2018 could suffice.DNo other document for supporting claim of ProductionCapacity as on 09.10.2018 could have been taken intoaccount in terms of the Public Notice dated 17.04.2020.”

28. The reasoning of the impugned judgment is that there was nodistinction (contrary to the conclusion of the single judge) regarding theEpublic notice dated 17.04.2020 -between the certificate in the first partand the consent to operate in the second part. The Division Bench noted,correctly that the annual total limit of import of 1.4 Million Metric Tonneswas based on the total production capacity as on 09.10.2018 which hadbeen fixed by this court on the basis of the capacity disclosed by all thecalciners. It was also observed that an SPCB could indicate theFpermissible limit of production of calcined petroleum coke. For Sanvirait was 2,00,000 MTPA; the consent to produce 3,30,000 MTPA of cokewas given only after 29[th ]November 2018. Therefore, it could not havebeen considered by the court. The certificate dated 04.05.2020 issuedby the APPCB merely certified that the installed capacity of Sanvira, asGon 09.10.2018, for manufacturing calcined petroleum coke, was 3,30,000Metric Tonnes per annum in terms of the CTO. The total figure of 1.4Million Metric Tonnes of RPC was based on the permissible capacity ason 09.10.2018. The Division Bench, therefore, concluded that if productioncapacity had increased, the proportionate share to be given was afterclearance by this court.H

29. This court is of the considered opinion that the view expressedby the impugned judgment is correct. Barring the fact that a clarificationwas issued on 04.05.2020, by the APPCB, there was no change incircumstance; the material document to be considered was the CTO,which for the relevant period (i.e. as on 09.10.2018) was 2,00,000 MTper annum, for Sanvira. Even according to it, the claim for enhancementwas made later, and the CTO for the increased capacity was issued on26.12.2019. In these circumstances, the clarification of APPCB, that ason a particular date, the production capacity was 3,30,000 MTPA wasof no consequence, because it was the CTO that was considered allalong, in all previous meetings. Therefore, the findings and conclusionsof the Division Bench cannot be faulted.