M/S. SANVIRA INDUSTRIESversusRAIN CII CARBON (VIZAG) LTD. & ORS.

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


                  M/S. SANVIRA INDUSTRIES                               A
                                 v.
           RAIN CII CARBON (VIZAG) LTD. & ORS.
              (Civil Appeal No(s). 3834-3838 of 2023)
                           JULY 03, 2023                                B
    [S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
       Environment – Issue as to allocation of quantities of raw pet-
coke (RPC) – Increased allocation to the appellant – Challenged
by respondent, writ petition dismissed by Single Judge of High Court
                                                                        C
– Division Bench set aside the minutes of the meeting as well as the
decision of the Central Government allocating pet-coke – Appellant
inter alia contended that there was a change of criteria adopted in
the Public Notice dtd.17.04.2020 issued by the GOI and contrary
to the earlier requirement of certification of production capacity by
the Unit, the said Public Notice required certification by the State    D
Pollution Control Board – In this case, the Andhra Pradesh Pollution
Control Board (APPCB) certified appellant’s production capacity
as on 09.10.2018 to be 3,30,000 MT and as per the appellant that
figure was correctly considered while making allocation of RPC in
its favour and thus, the impugned judgment was in error and the
                                                                        E
judgment of the Single Judge was correct – Held: Division Bench
correctly noted that the annual total limit of import of 1.4 Million
Metric Tonnes was based on the total production capacity as on
09.10.2018 which had been fixed by Supreme court on the basis of
the capacity disclosed by all the calciners – Barring the fact that a
clarification was issued by the APPCB on 04.05.2020, there was          F
no change in circumstance – The material document to be
considered was the Consent to Operate (CTO), which for the relevant
period (i.e. as on 09.10.2018) was 2,00,000 MT per annum for the
appellant – Even according to it, the claim for enhancement was
made later, and the CTO for the increased capacity was issued only
                                                                        G
on 26.12.2019 – Thus, the clarification of APPCB, that as on a
particular date, the production capacity was 3,30,000 MTPA was
of no consequence, because it was the CTO that was considered all
along, in all previous meetings – Therefore, the findings and
conclusions of the Division Bench cannot be faulted.
                                                                        H
                                133
134            SUPREME COURT REPORTS                     [2023] 10 S.C.R.


A           Dismissing the appeals, the Court
              HELD: 1.1 The order of this court had fixed the outer limit
      of import of RPC at 1.4 million tonnes per annum. This was based
      on the assessment by Environment Pollution Control Authority
      (EPCA) which evaluated the requirements of various industries
B     and units, engaged in the production of diverse commodities and
      raw materials (such as steel, aluminium, cement, clinker and those
      of calciners). The EPCA took into consideration the availability
      of appropriate grade domestic pet-coke, the overall impact on
      the environment and climate, of such essentially polluting feed
C     based on this detailed examination, reported to this court, that
      1.4 MMT ought to be the cap for imported RPC. Concededly,
      the estimation with respect to the capacity and the utilization of
      imported RPC was based on the figures provided by the industry
      itself. The EPCA report clearly states that the total capacity was
      1.17 million tonnes; in arriving at this figure the EPCA took note
D     of the capacity based upon the Consent to Operate (CTO) issued
      by the concerned Pollution Control Board. In the case of Rain
      CII, the capacity recorded was 500,000 MTPA, and in the case
      of Sanvira 2,00,000 MTPA. The guidelines for regulation and
      monitoring of imported pet coke had been issued on 10th
E     September 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 PCC
      had to clearly state what was the capacity or quantity permitted
      for import by the concerned unit. In the present case, it is not
F     disputed that the Consent to Operate (CTO) issued by APPCB
      in Sanvira’s favor recorded the total capacity at 2,00,000 TPA. If
      one sees the disputes in terms of these facts, what is clear is that
      the CTO mentions Sanvira’s capacity at 2,00,000 TPA. Sanvira’s
      position is that the CTO for an additional 1,30,000 TPA was
      granted on 29.11.2018 and that the application for such capacity
G
      was made on 29.10.2018. [Paras 21 and 22][151-D, F-G]
           1.3 The APPCB issued the CTO for the quantity of 3,30,000
      TPA only for 23.12.2019, the concerned Order APPCB/VSP/VSP/
      305/HO/CFO/2019. The consistent position of the GOI is that
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 M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                      135
                    LTD. & ORS.

any capacity added by the procedures after the Order of this Court       A
dated 09.10.2018 would not be taken into consideration while
allocating the RPC. The minutes also recorded that Sanvira’s
additional capacity was created after this court’s order dated
09.10.2018. From all these facts, it is evident that Sanvira kept
on contending that its capacity was 3,30,000 MTPA. The minutes
                                                                         B
of the meeting dated 13.02.2020, also allude to the previous
attempts by Sanvira, to have its capacity increased, as on
09.10.2018 in an effort to secure more allocation. All such
contentions were rejected. In this background, the view
expressed by the single judge, that the principle for allocation
was changed somewhat in the public notice, dated 17.04.2020, is          C
not tenable. Interestingly, even as on that day, i.e. 17.04.2020,
there was no confirmation by the APPCB that Sanvira’s unit had
the capacity it claimed (3,30,000 MT annually). The CTO for that
capacity had been issued only on 26.12.2019. As on that day, there
was nothing to show that the earlier CTO stood amended with              D
effect from the date it was issued (i.e. 24.02.2017), or any date
prior to 09.10.2018. In such background, Sanvira wrote to APPCB,
on 21.04.2020 seeking a “clarification”. APPCB replied with
refreshing alacrity on 04.05.2020. This letter virtually became
the gateway for a review of the entire system of allocation. Clearly,
the GOI had altered its position, within five weeks, because in          E
the order dated 02.05.2020, in an application moved by Sanvira,
in the pending writ petition, its position, through the statement
of its counsel, was that there was no change in the allocation
method, by the public notice of 17.04.2020. Despite the said
statement, the Minutes of the meeting dated 03.06.2020, treated          F
the letter of 04.05.2020 (by APPCB) as if Sanvira’s original capacity
was 3,30,000 MTPA, ignoring the consistent position, whereby
its 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 there          G
was no distinction (contrary to the conclusion of the single judge)
regarding the public notice dated 17.04.2020 -between the
certificate in the first part and 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 Tonnes was based on the
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136            SUPREME COURT REPORTS                     [2023] 10 S.C.R.


A     total production capacity as on 09.10.2018 which had been fixed
      by this court on the basis of the capacity disclosed by all the
      calciners. It was also observed that an SPCB could indicate the
      permissible limit of production of calcined petroleum coke. For
      Sanvira it was 2,00,000 MTPA; the consent to produce 3,30,000
      MTPA of coke was given only after 29th November 2018.
B     Therefore, it could not have been considered by the court. The
      certificate dated 04.05.2020 issued by the APPCB merely certified
      that the installed capacity of Sanvira, as on 09.10.2018, for
      manufacturing calcined petroleum coke, was 3,30,000 Metric
      Tonnes per annum in terms of the CTO. The total figure of 1.4
C     Million Metric Tonnes of RPC was based on the permissible
      capacity as on 09.10.2018. The Division Bench, therefore,
      concluded that if production capacity had increased, the
      proportionate share to be given was after clearance by this court.
      The view expressed by the impugned judgment is correct. Barring
      the fact that a clarification was issued on 04.05.2020, by the
D     APPCB, there was no change in circumstance; 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 MT per annum, for
      Sanvira. Even according to it, the claim for enhancement was
      made later, and the CTO for the increased capacity was issued
E     on 26.12.2019. In these circumstances, the clarification of
      APPCB, that as on a particular date, the production capacity was
      3,30,000 MTPA was of no consequence, because it was the CTO
      that was considered all along, in all previous meetings. Therefore,
      the findings and conclusions of the Division Bench cannot be
      faulted. [Paras 28 and 29][158-E-H; 159-A-C]
F
            M.C. Mehta v. Union of India [W.P. No 13029/1985] –
            referred to.
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3834-
      3838 of 2023.
G           From the Judgment and Order dated 10.01.2023 of the High Court
      of Delhi at New Delhi in LPA Nos. 25, 70, 71 of 2021, WPC No. 5749
      of 2021 and WPC No. 6258 of 2022.
            With
            Civil Appeal Nos. 3839-3843 of 2023.
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    M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                            137
                       LTD. & ORS.

      Tushar Mehta, Solicitor General, Kapil Sibal, K V Vishwanathan,             A
Sonia Mathur, P Chidambaram, Mukul Rohtagi, C.S. Vaidyanathan, Sr.
Advs., Ashish Prasad, Ms. Mukta Dutta, Vivek Singh, Ms. Anusha
Nagrajan, Ms. Sumedha Sarkar, Siddharth Sharma, Raj Bahadur Yadav,
Shashank Bajpai, Sourav Roy, Rupesh Kumar, Madhav Singhal, Manish
Pushkarna, Syed Jafar Alam, Ms. Shivani Khandekar, Ms. Shivani
                                                                                  B
Kahdekar, Gokul Holani, Ishan Bisht, Vinayak Goel, M/s. Ahmadi Law
Offices, Shariq Ahmed, Tariq Ahmed, Sunil Kumar Verma, Dhananjaya
Mishra, Arnav Dash, Nikhil Bhatia, Navneet Dogra, Ayan Rai, TVS
Raghavendra Sreyas, Siddharth Vasudev, Advs. for the appearing parties.
       The Judgment of the Court was delivered by
                                                                                  C
       S. RAVINDRA BHAT, J.
        1. In these appeals, the allocation of quantities of RPC which is
the abbreviation for raw pet-coke, a residue of the leftover from the
refining of petroleum products and sand crude as well as other heavy
oils, is in issue. Pet-coke is cheaper and burns hotter than coal and is,         D
therefore, used as a fuel, for several industrial uses. However, tests on
imported pet-coke and crudecoke evidence that they have extremely
harmful effects inasmuch as their residues thrown into the atmosphere
contain Sulphur as well as injurious particulate material.
      2. The appellant in one of the appeals is M/s. Sanvira Industries           E
(hereafter “Sanvira”). It is aggrieved by the decision of the Delhi High
Court1, which has interfered with and set aside the minutes of the meeting
as well as the decision of the Central Government allocating pet-coke.
       3. The necessary facts are that the Director General of Foreign
Trade (DGFT) determined the criteria for the allocation of imported raw           F
pet-coke (RPC) and allocated imported RPC among various entities.
On 18.07.2018, the Central Ministry of Environment, Forest and Climate
Change (“MoEF”), officers of the Environment Pollution (Prevention
and Control) Authority for NCR and the Ministry of Petroleum and
Natural Gas (“MPNG”) decided in principle that import of pet-coke be
ought to be restricted only to industries using it as a feedstock or as part      G
of their manufacturing process and not as fuel. This court - seized of the
public 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.                                                           H
138              SUPREME COURT REPORTS                        [2023] 10 S.C.R.


A     of 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 order
      dated 10.09.2018,prescribing guidelines for regulation and monitoring of
      the import of RPC. Importers were obliged to obtain consent and
      registration issued by the concerned State Pollution Board or Pollution
      Control Committee (“SPB” and “PCC” respectively). Sanvira wrote on
B
      12.09.2018 to the Environment Pollution Control Authority(hereafter
      “EPCA”) intimating its production capacity of calciners and indicated
      that its capacity was 2,00,000 MT. The EPCA on 06.10.2018 filed a
      report before this court with regard to the import of RPC for aluminium,
      calciner, and steel industries in the context of restrictions imposed on the
C     import of RPC. This was pursuant to litigation in M.C. Mehta Case.
      The EPCA recommended that the total import requirement of RPC was
      1.4 million tonnes per annum(“MTPA”) and Sanvira’s capacity was taken
      as 2,00,000 MTPA. The EPCA report stated inter alia as follows:
            “A.1.1 Calciners
D
            This industry imports different grades of pet coke and then
            upgrades this produce to produce calcined pet coke through
            removal of moisture, volatile matter and by changing the
            crystalline structure. The pet coke is used as a feedstock in
            the manufacturing process and not as a fuel. The calcined
E           pet coke is sold to the aluminium industry for feedstock in
            smelting process.
            These are 28 calciners in the country, of which 6 are port
            based and entirely dependent on imported raw pet coke. These
            6 calciners, manufacture 72 percent of the calcined pet coke
F           produced 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, Andhra
G                  Pradesh
            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)                      139
             LTD. & ORS. [S. RAVINDRA BHAT, J.]

          5.     India Carbon Ltd., plant based in Budge Budge, West        A
                 Bengal
          6.     Petro Carbon N Chemicals Pvt. Ltd. Plant in Haldia,
                 West Bengal.
          The industry cannot use domestic pet coke as that grade called
          anode grade – is not readily available. The structure of the      B
          pet coke in India is different therefore, import becomes
          essential.
          The industry also provided EPCA with details of the quantity
          required by the industry (see Annexure 1).
                                                                            C
          According to this estimation, the 6 industries, with combined
          production capacity of 1.17 million tonnes require 1.36 million
          tonnes of imported petcoke to produce 1 million tonnes of
          calcined pet coke annually.
          The industry has also informed EPCA that it meets S02, NOx        D
          and particulate emission standards, as stipulated by CPCB.
          A.1.2 EPCA Recommendation on Calciner Industry.
          The Calciner industry should be allowed to import pet coke
          as its industry uses it for feedstock and not for fuel. This
          import is required as anode grade petcoke is not available in     E
          sufficient quantities in the country.”
       4. On 09.10.2018, based on the EPCA report, this court made an
order directing that RPC import cannot exceed 1.4 MMTPA and that it
could be used as feedstock for producing CPC. The figure of 1.4 MMTPA
was based on the production capacity of calciners given by each one of      F
them. This became the basis of an order by this court dated 09.10.2018.
As a consequence, on the same day, a notification2 was issued by DGFT
amending the foreign trade policy in relation to the import of RPC. The
amendment allowed the import of RPC for cement, calcium carbide,
gasification, limekiln and graphite industries for use as feedstock or in
the manufacturing process on an actual user basis. The regulation and       G
monitoring of these imports were to be supervised on the basis of
guidelines issued by the MoEF on 10.09.2018. The DGFT thereafter
proceeded to allocate specific quantities of RPC out of a total import

2
    Notification No 42/2015-20                                              H
140                SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A     quantity of 1.4 million MT which was to be imported by each calciner on
      the basis of actual production capacity.
             5. While so, on 26.11.2018, a public notice3 was issued by the
      Ministry of Commerce and Industries, stipulating the manner in which
      DGFT would allocate the quota of RPC to eligible CPC manufacturing
B     units within the given ceiling limit. According to this, eligible units wishing
      to avail of quota had to apply for an import license with a copy to the
      jurisdictional regional authority of DGFT along with the capacity of the
      unit as well as the consent certificate from the State Pollution Control
      Board in the name of the industrial unit user indicating the quantity
      permitted for import and its use. On 27.12.2018, the DGFT, in furtherance
C     of the first public notice initiated the process for allocating RPC. Its
      allocation became the subject matter of controversy by Sanvira as well
      as Rain CII, the respondent contesting in these proceedings. Sanvira
      contended that its production capacity was 330,000 MTPA which was
      not taken into account while providing allocation. The Committee disposed
D     of all these representations, not acceding to the request. Aggrieved,
      Sanvira, filed an application, being I.A.No. 12291/2019 in the proceedings
      in M.C. Mehta’s Case before this court. The application specifically
      contended that in September 2017, Sanvira initiated Phase-2 expansion
      to expand the capacity from 2,00,000 MTPA to 3,30,000 MTPA and
      Phase-2 expansion was completed in October 2018 and that a consent
E     to operate was received from the AP Pollution Control Board on
      29.11.2018.
            6. On 28.01.2019, this court dismissed I.A. No. 12291/ 2019 in
      the MC Mehta petition. Similar applications had been filed on behalf
      of others, including the contesting respondent (Rain CII). All the
F     applications were rejected. The relevant portion of the order is
      reproduced hereunder:
               “Heard learned counsel for the parties.
               I.A. Nos. 168838 and 164302 of 2018 (Applications for
G              impleadment) 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 coke
               cannot exceed 1.4 MT per annum in total.

      3
H         Public Notice No 50/2015-20
 M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                          141
          LTD. & ORS. [S. RAVINDRA BHAT, J.]

      In view of the aforesaid, prayers made on the basis of                 A
      expansion etc. are totally misconceived and cannot be
      entertained. No further orders are required to be passed on
      these 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.
                                                                             B
      12291/2019 (filed on behalf of Sanvira Industries Ltd.) and
      I.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 allocation
was issued. Sanvira had requested for enhancement of allocation to
it,based on its claim of enhanced capacity to the extent of 1,30,000 MTPA.   C
This application for enhancement was rejected by DGFT, which also
rejected a similar application for increased capacity by the contesting
respondent, Rain CII. The relevant part of the rejection order, dated
22.04.2019 is extracted below:
      “7. The committee also observed that M/s Rain (CII) has                D
      drawn 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’ble
      Supreme Court dated 28.1.2019 (as detailed in para. 5 in
      this minutes), the above communication dated 5th December,
                                                                             E
      2018 is infructuous.
      8. In case of M/s Sanvira Industries Ltd. also, the Committee
      noted that the additional capacity of 1,30,000 MT was created
      after the Hon’ble Supreme Court’s Order dated 9.10.2018 as
      per the official record. Hence, the request for additional
      quantity for the new capacity was rejected by the Committee.”          F
       8. The decision not to increase capacity, dated 22.04.2019 was
challenged before the Delhi High Court in writ proceedings, by Sanvira
by 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 necessary
clarification from this court. For this purpose, Sanvira filed another       G
application IA 73242/2019 reiterating that its capacity had been wrongly
recorded as 200,000 MTPA whereas it ought to be 330,000 MTPA. It
was contended in that application that:
      “(xiii) It is most humbly submitted that the issue that a total
      production capacity of 330,000 MTPA of CPC had been                    H
142            SUPREME COURT REPORTS                        [2023] 10 S.C.R.


A           installed by the Applicant prior to order dated 9.10.2018
            passed by this Hon’ble Court was not ,.pleaded before this
            Hon ‘ble Court in the Applicant’s IA No.12291 of 2019 as
            such contention had earlier never been raised by the DGFT.
            9. On 08.07.2019, this court rejected Sanvira’s application (I.A.
B     No. 73242/2019) in the following terms:
            “INTERLOCUTORY APPLICATION NO. 73242/2019
            (APPLNS. FOR DIRECTIONS ON B/0 SANVIRA INDUSTRIES
            LTD.)
            Our order is clear. No further clarification is required.
C
            This application is disposed of.”
             10. After the above order, Sanvira moved its pending writ petition
      before the Delhi High Court (WP No. 4485/2019). The High Court
      noticed the order of this court, rejecting Sanvira’s contentions. The
D     respondents in the writ proceeding i.e. DGFT were required, by the
      order of the Delhi High Court, (dated 06.12.2019) to consider the
      representation of Sanvira and pass a reasoned order. Sanvira’s writ
      petition was therefore disposed of. On 13.02.2020, the Union Ministry
      of Commerce by its decision, recorded in the Minutes of Meeting rejected
      Sanvira’s request, stating inter alia, that:
E
            “6. [..] The Committee observed that the contention of M/s
            Sanvira Industries Ltd. that the Hon’ble Supreme Court’s order
            dated 28.01.2019 merely states that outer limit for import of
            RPC had already been fixed and any prayer seeking
            enhancement of that limit cannot be entertained and that the
F           said order made no observation, as to whether the enhanced
            production capacity of the existing calciners were to
            considered or not is baseless. The Committee was of the view
            that the prayer before the Hon’ble Supreme Court (as in Para
            1) was “to enhance/increase the import limit of 1.4 Million
            MT of RPC by an additional amount of 488,000 MT per
G
            annum for manufacturing CPC at the Applicant’s SEZ Unit
            and accordingly direct the DGFT and other authorities,
            including the Ministry of Commerce, to allocate this additional
            RPC to the Applicant. To which the Hon’ble Supreme Court
            in its order dated 28.01.2019 directed that “the order passed
H           by this Court is clear. This Court has set the outer limit for
M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                   143
         LTD. & ORS. [S. RAVINDRA BHAT, J.]

   import of Raw Pet Coke cannot exceed 1.4 MT per annum in          A
   total. In view of the aforesaid, prayers made on the basis of
   expansion etc. are totally misconceived and cannot be
   entertained. No further orders are required to be passed on
   these I.As. The same are hereby dismissed.” M/s Rain Cll
   (Vizag) Ltd. had prayed before the Hon’ble Supreme Court is
                                                                     B
   clear neither the limit of 1.4 Million MT can be enhanced nor
   the expansion of the capacity by the calciners can be
   entertained. The Committee, therefore, did not approve M/s
   Sanvira Industries representation who was seeking allocation
   for its additional capacity of 1,30,000 MT.
   7. The Committee while consideration the submission of M/s        C
   Sanvira Industries Ltd. was of the view that the capacity of
   each applicant was decided on the basis of Consent to Operate
   certificate available with the firm on the date of passing of
   order dated 09.10.2018 by the Hon’ble Supreme Court in WP
   No.13029 of 1985. The firm was not having Consent to              D
   Operate on 09.10.2018 for their plant and accordingly it was
   not considered by the Committee which decided the allocation
   of 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,              E
   filed IA No.73242/2019, before the Hon’ble Supreme Court
   inter alia praying to challenge the Minutes of Meeting dated
   22.04.2019 regarding allocation of RPC. The said application
   was disposed of by the Hon’ble Supreme Court observing
   “our order is clear. No further clarification is required. This
   application is disposed of.” In view of the above directions      F
   of the Hon’ble Supreme Court, where the minutes of the
   meeting dated 22.04.2019 has been challenged by the
   calciners earlier, the Hon’ble Supreme Court has reiterated
   that no further clarification is required. Therefore, the EFC
   decided that the request petitioner for allocation of RPC for     G
   its 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 of
   consent to operate available with the firm on 09.10.2018 i.e.     H
144            SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A           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 highly
            contentious issue and will be fraught with endless
            interpretations.
B           ii. That the firm had challenged the Minutes of Meeting dated
            22.04.2019 regarding allocation of RPC in Hon’ble Supreme
            Court and the application was disposed of by the Hon’ble
            Supreme Court observing - “our order is clear. No further
            clarification is required. This application is disposed of.”
C           10. In view of the above, the Committee decided to reject the
            submission made by the applicant to allocate additional
            quantity of RPC for the new capacity added by the firm
            after09.10.2018.”
            11. This decision was again challenged by Sanvira, by filing WP
D     No. 1858/2020 before the Delhi High Court. On 17.04.2020, DGFT had
      issued a public notice, which indicated the procedure for allocation of
      quota for the import of PET coke (RPC and CPC); it inter alia stated
      that:
            ii. “The annual quantity limitation in import will be operated
E           on fiscal year basis. · Accordingly, the total quantity permitted
            for import per annum by the Hon’ble Supreme Court and
            available for import is
            (i) Calcined Pet Coke for use as Calcined Pet coke in
            Aluminium Industry is 0.5 Million MT and
F           (ii) Raw Pet Coke for CPC manufacturing industry is 1.4
            Million MT. This is available for all industrial units in these
            two sectors including the petitioners.
            iii. All eligible entities desiring to avail quota as mentioned
            above, may apply for import license as per procedure
G           mentioned in Trade Notice No. 49 dated 15th March, 2019
            along with State Pollution Control Board Certificate (SPCB)/
            Pollution Control Committee (PCC) indicating capacity of the
            unit as on 9.10.2018 (Hon’ble Supreme Court Order in Writ
            Petition No. 13029/1985 ) and also valid consent certificate
            from SPCB/ PCC, In the name of user industrial units
H
 M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                          145
          LTD. & ORS. [S. RAVINDRA BHAT, J.]

      indicating the quantity permitted for import and its usage on          A
      a monthly and yearly basis.
      iv. Completed on line application form and the documents
      mentioned at (iii) above must reach on or before 5th May
      2020. Application fee shall be paid in accordance with the
      procedure as in Appendix 2K of Appendices &Aayat Niryat                B
      Forms and deposited online along with the application.
       v. If documents received are found in order, application will
      be considered in Exim Facilitation Committee. (EFC) for import
      of restricted items and the concerned jurisdictional RA will
      grant authorization. The import license/authorization will be          C
      valid till 31.03.2021 only for the purpose of imports.
      vi. If, after obtaining permission/ license, importer cannot
      utilize/ import the entire quantity for which the license has
      been issued, the applicant shall Intimate the same to DGFT at
      petcokeimport-dgft@gov.in and import-dgft@nic.in on or                 D
      before 31.12.2020 in order to facilitate distribution of the
      unutilized quota to other applicants who had applied
      initially..”
       Sanvira responded to the public notice, by applying on
21.04.2020, contending that its production capacity had increased to         E
3,30,000 MT as in September, 2018. Sanvira also moved an application
[CM Appl. No. 10528/2020 in WP (C) No. 1858/2020] seeking a
direction that it ought to be allocated a proportionate quantity of RPC
having regard to its capacity of 3,30,000 MT. The High Court dismissed
the application observing that such a relief could not be claimed by an
application, by its order dated 02.05.2020. The court also recorded the      F
Union’s objection to the grant of such relief; the Union had contended
that repeated requests for enhancement was an abuse of the process
of the court.
       12. On 04.05.2020, the Andhra Pradesh SPCB issued a letter
stating that as per its record, based on inspection of Sanvira’s unit, the   G
latter’s capacity for manufacture of calcinated petroleum coke was
3,30,000 MT per annum and the power generation capacity was 16 MW.
On 03.06.2020, the DGFT held a meeting to finalize the quantum of
allocation 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
                                                                             H
146            SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A     capacity was also considered. The minutes of meeting recorded on that
      day, i.e. 03.06.2020 are as follows:
            “4. M/s Rain CII Carbon (Vizag) Ltd, SEZ Unit has submitted
            an application for quantity of 4,88,000 MT of RPC in addition
            to an application for the DTA unit. It was noted that the CTO
B           from Andhra Pradesh Pollution Control Board had been
            obtained vide their Consent Letter dated 6.3.2020. The
            Committee noted that since the CTO does not specify the
            installed capacity as on 9th October 2018, the Committee
            accordingly decided to not consider the request for allocation
            of quota.
C
                                          xxx
            6. The Committee examined the SPCB certificates of all the
            applicants for RPC imports. On examination, Committee
            observed that the SPCBs have adopted varying conversion
D           rates for calculating the requirement of RPC for
            producing CPC. In their CTO certificates, the Committee also
            noted that consumption requirement is not indicated in SPCB
            certificates of all the firms. To bring uniformity, the Committee
            decided to allocate RPC by adopting following criteria:

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

F           ii. The production capacity for each applicant to be converted
            to input/raw material requirement by taking industry average
            conversion rate i.e. 1:1.36 (as mentioned in the EPCA report).
            iii. The additional capacity added by the applicants after the
            Hon’ble Supreme Court’s order dated 9.10.2018 is not taken
            into consideration;
G
            iv. The quota be divided on a proportionate basis as per the
            following formula:-
            Quota allocated = Total Quota available for allotment
            multiplied by the demand of applicant divided by the Total
H           demand for all applicants
    M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                           147
             LTD. & ORS. [S. RAVINDRA BHAT, J.]

       v. In cases where requested quantity is lower than eligible               A
       quantity, the surplus on their heads are redistributed among
       others proportionately.”
       13. Rain CII challenged the increased allocation to Sanvira, in its
writ petition. A learned single judge, after considering the pleadings and
submissions of the parties, sought to distinguish the various public notices     B
issued by the GOI, and was of the opinion that this court’s orders did not
preclude the allocation of a different quantum as the orders were only
indicative of the total quantity that could be imported. The single judge
considered the previous orders of the committee and said that it placed
reliance on the orders of this court and also clarified that production
capacity had been determined on the basis of “Consent to Operate” as             C
“any other criteria for deciding the capacity will be highly
contentious issue and will be fraught with endless interpretation.”
The court also held that the Public Notice dated 17.04.2020 was not
challenged by Rain CII and, absent such challenge, it was not for the
court to adjudicate whether a certificate issued by the APPCB certifying         D
the production capacity of M/s. Sanvira Industries in the absence of the
Consent to Operate as on 09.10.2018 would suffice for making allocation
of RPC in its favour. The court also held that the validity of the
APPCBcertifying the production capacity of M/s. Sanvira Industries as
on 09.10.2018 was not in challenge. On the basis of all these reasoning,
Rain CII’s petition was rejected.                                                E

       14. Rain CII preferred appeals and writ petitions to the Division
Bench of the Delhi High Court4, challenging the judgment of the Single
Judge and also impugning the public notice dated 17.04.2020. The Division
Bench, in its impugned judgment, held that on 09.10.2018, when this
court passed the order, every calciner had given its capacity. The total         F
capacity of all the calciners put together came to 11,72,750 MTPAs and
the production and the total import that was necessary for the calciners
to continue producing pet coke from raw pet coke was assessed as 1.4
MMTPA. This was based entirely on the total production capacity. On
09.10.2018, Sanvira’s recognition to increase its capacity from 2,00,000         G
Metric Tonnes to 3,30,000 MT had not been placed, rather the consent
to operate dated 22.04.2017 restricted Sanvira to produce only 200000MT
of 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.                    H
148             SUPREME COURT REPORTS                            [2023] 10 S.C.R.


A     capacity (of 1,30,000 MT) was granted only on the basis of an agenda
      item placed before the APPCB on 29.11.2018 and that though Sanvira
      could produce 3,30,000 MTs, that did not automatically lead to the
      inference that they were entitled to an increase in their share of the total
      import permissible by the orders of this court, dated 09.10.2018. The
      court also held that the fixation of 1.4 MMTs per annum was on the
B
      basis of the total capacity of each of the calciners. It was held that
      minor adjustments or a few more persons were permitted to get a share
      of the raw pet coke without affecting the capacity given under the EPCA
      Report did not mean that the total permissible capacity was variable for
      the reason that the inter se allocation was made only on theallocation of
C     the capacity essentially on the six calciners. The reasoning made in the
      judgment of the single judge that the public notice dated 17.04.2020
      distinguishes between the certificate in the first part and the consent to
      operate 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 in
      the two parts of the public notice and thus granting of certificate by APPCB
D     was reasonable, was held to be contrary to the entire scheme as envisaged
      by this court. The total limit of import of 1.4 MMTPA was based on the
      total production capacity as on 09.10.2018 which had been fixed by the
      court on the basis of the capacity disclosed by the calciners themselves.
             15. It is argued on behalf of Sanvira and the GOI, which are in
E     appeal, by special leave that the impugned judgment is in error and that
      the judgment of the single judge is correct. It is argued that there was a
      change of criteria adopted in the Public Notice dated 17.04.2020 issued
      by the GOI. Contrary to the earlier requirement of certification of
      production capacity by the Unit, the Public Notice dated 17.04.2020,
F     required certification by the SPCB. In this case, the APPCB certified
      Sanvira’s production capacity as on 09.10.2018 to be 3,30,000 MT and
      that figure was correctly considered while making allocation of RPC in
      its favour.
             16. It was urged that in the absence of any challenge to the Public
      Notice dated 17.04.2020 or the certificate issued by the APPCB
G
      regarding Sanvira’s production capacity (as 3,30,000 MT as on
      09.10.2018), the challenge by Rain CII was untenable and was liable to
      be rejected. It is argued that the orders dated 28.01.2019 and 08.07.2019
      of thiscourt merely clarified that the overall import of RPC has to be
      confined to 1.4 MMTPA. This court did not consider Sanvira’s claim
H     that as on 09.10.2018 its production capacity was in fact, 3.30 lakh MT.
 M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                           149
          LTD. & ORS. [S. RAVINDRA BHAT, J.]

       17. In reply Rain CII argued that the Committee had from the           A
very beginning rejected requests for enhancement of allocation on the
ground that any capacity increase after 09.10.2018 would not be taken
into consideration. This consistent stand was reflected in the EPCA’s
minutes of the meeting prior to 03.06.2020. In fact, even the GOI
defended the rejection of Sanvira’s request, barely five weeks before
                                                                              B
the impugned allocation by contending before the High Court that Sanvira
was 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 persuaded
the committee as held by the Single Judge. There was in fact no change
in the criteria. On behalf of Rain CII, it was highlighted that all facts     C
pertaining to the alleged increase in capacity prior to 09.10.2018 i.e. the
issuance of the CTO, the fact that inspection had been conducted by
Sanvira’s creditors i.e. State Bank of India on 28.09.2018, were all
mentioned in the previous requests for enhancement and even in the
two applications filed before this Court. Having regard to all these
                                                                              D
circumstances, the issuance of the certificate or letter by the APPCB
almost two years after 09.10.2018, certifying that the second phase of
Sanvira’s expansion had increased its capacity by 1,30,000 MT, was not
any new development. In these circumstances the view expressed by
the Division Bench in the impugned order was reasonable.
       18. The facts reveal that the order of this court had fixed the        E
outer limit of import of RPC at 1.4 million tonnes per annum. This was
based on the assessment by EPCA which evaluated the requirements of
various industries and units, engaged in the production of diverse
commodities and raw materials (such as steel, aluminium, cement, clinker
and those of calciners). The EPCA took into consideration the availability    F
of appropriate grade domestic pet-coke, the overall impact on the
environment and climate, of such essentially polluting feed based on this
detailed examination, reported to this court, that 1.4 MMT ought to be
the cap for imported RPC.
       19. The EPCA which examined the issue elaborately raised the           G
concern that RPC is a highly polluting fuel in its report (No. 91) to this
court:
      “EPCA concern is that pet coke is a highly polluting fuel and
      therefore, after months of deliberations there has been an
      agreement to control the import of this fuel. The exemptions            H
150            SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A           given to industries should not negate the efforts being made
            to control the usage of this fuel in the country.
            This is all the more important as it is difficult to ensure that
            the industries do not use the fuel for combustion or that the
            use of the pet coke does not lead to pollution because of
B           fugitive 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 coke
C           as its industry uses it for feedstock and not for fuel. This
            import is required as anode grade pet coke is not available in
            sufficient quantities in the country.”
             20. Concededly, the estimation with respect to the capacity and
      the utilization of imported RPC was based on the figures provided by the
D     industry itself. The EPCA report clearly states that the total capacity
      was 1.17 million tonnes;in arriving at this figure the EPCA took note of
      the capacity based upon the Consent to Operate (CTO) issued by the
      concerned Pollution Control Board. In the case of Rain CII, the capacity
      recorded was 500,000 MTPA, and in the case of Sanvira- 2,00,000
      MTPA. The guidelines for regulation and monitoring of imported pet
E
      coke had been issued on 10th September 2018 by an office memorandum
      – through the MOEF, GOI. The relevant guidelines are extracted below:
            “1. Guidelines for Regulation and Monitoring of Imported
            Petcoke in India
F           As per notification of Director General of Foreign Trade
            (DGFT) dated 17.08.2018, imported of Petcoke for use as
            fuel is prohibited. However, import of Petcoke is allowed for
            the following industries namely, cement, lime kiln, calcium
            carbide and gasification for use a feedstock or in the
            manufacturing process only on actual user basis as per the
G
            conditions stipulated below:
            (1) Petcoke importing industries namely, cement, like kiln,
            calcium carbide and gasification shall obtain the consent of
            and registration with the concerned State Pollution Control
            Boards (SPCB) / Pollution Control Committees (PCC).
H
 M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                           151
          LTD. & ORS. [S. RAVINDRA BHAT, J.]

      (2) Consent issued by the concerned SPCB /PCC shall clearly             A
      specify the quantity permitted for import and its use on a per
      month and per annum basis.
      (3) Only registered industrial units with valid consent from
      SPCBs/PCCs as per clause (1) shall be permitted to directly
      import pet coke and consignment shall be in the name of user            B
      industrial units for their own use only.
      (4) Import of pet coke for the purpose of trading shall not be
      permitted.
      (5) Authorised importers of Petcoke shall furnish opening
      and closing stock of imported Petcoke to the concerned SPCB/            C
      PCC on a quarterly basis.”
       21. As can be seen, the consent issued by the concerned SPCB
or the PCC had to clearly state what was the capacity or quantity
permitted for import by the concerned unit. In the present case, itis not
disputed that the Consent to Operate (CTO) issued by APPCB in                 D
Sanvira’s favor recorded the total capacity at 2,00,000 TPA. The copy
of this CTO dated 24.04.2017 has been placed on record, which states
as follows:

                                                                              E


      Interestingly, the same CTO also records as follows:
      “10. The industry shall not increase the capacity beyond the
      permitted capacity mentioned in this order.”                            F
        22. If one sees the disputes in terms of these facts, what is clear
is that the CTO mentions Sanvira’s capacity at 2,00,000 TPA. Sanvira’s
position is that the CTO for an additional 1,30,000 TPA was granted on
29.11.2018 and that the application for such capacity was made on
29.10.2018. It argued for the longest period (unsuccessfully) that though     G
the CTO for the increased capacity was issued on 29.11.2018, that
capacity had in fact existed prior to that date. It relied heavily upon the
Inspection Report, by its creditor - the State Bank of India and the
report of the Inspecting Officer of the APPCB dated 03.10.2018. These
facts were repeatedly mentioned and urged on several occasions
                                                                              H
152            SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A     including the two applications filed before this Court. Although the
      order of this court is cast in general terms, the fact remains that a
      pointed reference to increased capacity was made on 08.07.2019 which
      rejected the claim for clarification. That claim for clarification was
      based upon Sanvira’s plea with respect to its increased production
      capacity 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 capacity
            addition from 200,000 to 330,000 MTPA comprising of
            approximately furnaces having a capacity of 40,000 MTPA
C           each and expansion of power point_ capacity from 8 MW to
            16 MW.
            (b) The total cost of capacity addition undertaken by the
            Applicant is Rs. 75 Crores, of which Rs. 50 Crores has been
            raised through a loan from EXIM Bank. Copy of loan sanction
D           letter dated 03.01.2018 issuing by EXIM Bank is annexed
            hereto and marked as Annexure A-4 (Pages 30-56).
            (c) By March 2018, the Applicant had installed the first
            furnace of 40,000TPA and had a total installed capacity of
            240,000 MTPA. Minutes of the consortium of Bank meeting
E           dated 05.05.2018 and 13.08.2018 which note that 240,000
            MTPA capacity was operational since 01.08.2018 are annexed
            hereto and Marked as Annexure A-S (Pages 57 -6) and
            Annexure A-6 (Pages 62-67).
            Report dated 17.04.2018 of the Lender Engineer appointed
F           by the Bank Consortium which notes that Applicant had
            erected and commissioned additional CPC capacity of 40,000
            MT as of 28.02.2018 is annexed hereto and marked as
            Annexure A-7 (Pages· 68-71).
            (d) By June 2018, the Applicant had a total installed
            production capacity of 330,000 MTPA having completed
G
            Installation of furnaces (which comprise of the CPC
            production facility). Power plant related works were at the
            final stages of completion. Progress Report dated 30.06.2018
            submitted to the Lenders by the Applicant is annexed hereto
            and marked as Annexure A-8 annexed (Pages 72-75).
H
 M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                     153
          LTD. & ORS. [S. RAVINDRA BHAT, J.]

      The report also indicates that the Applicant had spent the        A
      entire sanctioned loan amount of Rs. 50 Crores by
      30.06.2018.
      (e) By September 2018, the Applicant had also completed
      power plant expansion (except for turbine Installation).
      Turbine and ACC were the final stages of completion, Progress     B
      Report dated 30.09.2018 submitted to the Lenders by the
      Applicant is annexed hereto and marked as Annexure A-9
      (Pages 76-79)
      Site Inspection Report dated 28.09.2018 of State Bank of India
      reporting the progress of capacity addition from 200,000          C
      MTPA to 330,000 MTPA is annexed hereto and marked as
      Annexure A-10 (Pages 80-82).
      (f) On 27.11.2018 the APPCB issued consent to operate the
      additional capacity. Copy of Consent Order dated 29.11.2018
      issued by the APPCB is annexed hereto as Annexure A-11            D
      (Pages 83-87).”
      23. It is a matter of record that the APPCB issued the CTO for
the quantity of 3,30,000 TPA only for 23.12.2019, the concerned Order
APPCB/VSP/VSP/305/HO/CFO/2019. The relevant part of the CTO
(dated 26.12.2019) reads as follows:                                    E
      “This consent order is valid for manufacture the following
      products along with quantities indicated only:



                                                                        F

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



      This order is subject to the provisions of ‘the Acts’ and the
      Rules’ and orders made thereunder and further subject to the
                                                                        H
154            SUPREME COURT REPORTS                        [2023] 10 S.C.R.


A           terms and conditions incorporated in the schedule A, B & C
            enclosed to this order.”
             24. The consistent position of the GOI is that any capacity added
      by the procedures after the Order of this Court dated 09.10.2018 would
      not be taken into consideration while allocating the RPC. This is clear
B     from the narration from the Order made on 13.02.2020 which records
      as follows:
            “(iii) Procedure for allocation of quota for import of Raw Pet
            Coke for CPC manufacturing industry was notified by Public
            Notice No. 81/2015-20 dated 23.03.2019. As per the Public
C           Notice the EFC in DGFT has to evaluate and allot quota
            among applicants.
            (iv) Accordingly, a meeting of the EFC was held on
            05.04.2019. In order to bring uniformity in allocation of RPC
            it was decided to allocate as per the production capacity on
D           a proportionate basis. One of the criteria adopted by the
            committee was that the additional capacity added by the
            applicants after the Supreme Court’s order dated 09.10.2018
            will not be taken into consideration while allocating RPC. In
            the meeting held on 05.04.2019 for considering allocation
            of 1.4 million MT of Raw Pet Coke, the committee observed
E           that M/s Rain CII Carbon (Vizag) Ltd. and M/s Sanvira
            Industries Ltd. had submitted additional requirement of
            4,88,000 MT and 1,30,000 MT of RPC respectively. The
            committee further observed that M/s Rain CII Carbon (Vizag)
            Ltd. and M/s Sanvira Industries Ltd. were also both petitioners
F           before the Supreme Court of India in IA Nos. 1451 of 2019
            and 1229/2019 in the W.P.(C) 13029/1985, where the prayer
            before the Hon’ble Supreme Court was-
            a. to enhance/increase the import limit of 1.4 Million MT of
            RPC by an additional amount of 488,000 MT per annum for
G           manufacturing CPC at the Applicant’s SEZ Unit and
            accordingly direct the DGFT and other authorities, including
            the Ministry of Commerce, to allocate this additional RPC to
            the Applicant.
            b. to enhance/increase the import limit of 0.5 million MT of
            CPC by an additional amount of 3 70,000 MT per annum for
H
 M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                          155
          LTD. & ORS. [S. RAVINDRA BHAT, J.]

      blending purposes at the Applicant’s SEZ Unit, subject to the          A
      condition that the Applicant exports CPC of equivalent quality
      of its CPC imports and accordingly direct DGFT and other
      authorities, including Ministry of Commerce, to allocate this
      additional CPC to the Applicant; and
      c. to direct the Development Commissioner, APSEZ to grant              B
      an extension of the Letter of Approval for the SEZ Unit being
      set up by the Applicant in the Andhra Pradesh Special
      Economic Zone, a sought by the Applicant vide letter/
      application dated 31October, 2018; and
      d. pass such further/orders as in the facts and circumstances          C
      of this case be deemed fit and proper. “
      (v). The Hon’ble Supreme Court in its order dated 28.01.2019
      while 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         D
      (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 set
      the outer limit for import of Raw Pet Coke cannot exceed 1.4
      MT per annum in total. In view of the aforesaid, prayers made
      on the basis of expansion etc. are totally misconceived and            E
      cannot be entertained. No further orders are required to be
      passed on these LA.s The same are hereby dismissed.”
      (vi) The Committee having noted that the request for additional
      requirement of RPC by these two applicants have been set
      aside by the Hon’ble Supreme Court decided that it cannot              F
      grant any extra quality based on the new capacity added by
      these two firms after the date of the order of the Hon’ble
      Supreme Court i.e., 09.10.2018. the Committee uploaded the
      draft Minutes of the EPC meeting (held on 05 .04.2019) on
      DGFT website to enable the applicants to represent their               G
      grievances by 15.04.2019 and based on the representation,
      if any. Committee will take a decision and allocate the final
      quantity.”
       The same documents i.e., the minutes also recorded that Sanvira’s
additional capacity was created after this court’s order dated 09.10.2018.
                                                                             H
156             SUPREME COURT REPORTS                            [2023] 10 S.C.R.


A             25. From all these facts, it is evident that Sanvira kept on contending
      that its capacity was 3,30,000 MTPA. The minutes of the meeting dated
      13.02.2020, also allude to the previous attempts by Sanvira, to have its
      capacity increased, as on 09.10.2018 in an effort to secure more
      allocation. All such contentions were rejected. In this background, the
      view expressed by the single judge, that the principle for allocation was
B
      changed somewhat in the public notice, dated 17.04.2020, is not tenable.
      The relevant part of that notice reads as follows:
             “All eligible entities desiring to avail quota as mentioned
             above may apply for import license as per procedure
             mentioned in Trade Notice No. 49 dated 15th March 2019
C            along with State Pollution Control Board Certificate (SPCB)/
             Pollution Control Committee (PCC) indicating capacity of the
             unit as on 9.10.2018 (Hon’ble Supreme Court Order in Writ
             Petition No. 13029/1985) and also· valid consent certificate
             from SPCB/ PCC, In the name of user industrial units
D            indicating the quantity permitted for import and its usage on
             a monthly and yearly basis.”
             Interestingly, even as on that day, i.e. 17.04.2020, there was no
      confirmation by the APPCB that Sanvira’s unit had the capacity it claimed
      (3,30,000 MT annually). The CTO for that capacity had been issued
E     only on 26.12.2019. As on that day, there was nothing to show that the
      earlier 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, Sanvira
      wrote to APPCB, on 21.04.2020 seeking a “clarification”:
             “To
F            The Environmental Engineer
             Andhra Pradesh Pollution Control Soard
             Regional Office, Visakhapatnam
             Andhra Pradesh
             Dear Sir,
G
             21·04·2020
             Sub: Request to certify installed capacity of Sanvira Industries
             limited as on 09.10.2018 as 330, 000 MTPA of Calcined
             Petroleum Coke Sanvira Industries Limited had completed
             line-2 expansion (130,000 MTPA) of its Calcined Petroleum
H
 M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                           157
          LTD. & ORS. [S. RAVINDRA BHAT, J.]

      Coke (CPC) production facility by September 2018 thus taking            A
      Its total production capacity from 200,000 MTPA to 330,000
      MTPA as per record.
      For allocation of Raw Petroleum Coke for FY 2020-21, DGFT
      has stated vide public notice No. 04/2015·20 dated 17th April
      2020 that a certificate indicating capacity of the unit as on           B
      09.10.2018 is required from the State Pollution Control Board.
      We sincerely request you to provide such a certificate to
      enable us to apply for the RPC allocation for FY 20·21.”
       APPCB replied with refreshing alacrity, on 04.05.2020, inter alia,
clarifying that:                                                              C

      “With reference to the above letter, upon examining the records
      of this office and other relevant information available during
      the inspections it is to certify that the installed capacity of M/
      s Sanvira Industries, Chatametta Village, Visakhapatnam Dist
      as on 09.10.2018 for manufacture of calcined petroleum coke             D
      was 3,30,000 MT per annum and the power generation
      capacity was 16 MW.”
       26. This letter virtually became the gateway for a review of the
entire system of allocation. Clearly, the GOI had altered its position,
within five weeks, because in the order dated 02.05.2020, in an application   E
moved by Sanvira, in the pending writ petition, its position, through the
statement of its counsel, was that there was no change in the allocation
method, by the public notice of 17.04.2020:
      “4. Ms. Maninder Acharya, learned ASG submitted that
      repeatedly the applicant/petitioner has been seeking the same           F
      relief which was denied to it by the Supreme Court and not
      only the instant application but the writ petition itself was an
      abuse of the process of the court. The learned ASG submitted
      that merely because a public notice was issued, no fresh cause
      of action accrued in favour of the applicant/petitioner and
                                                                              G
      its grievance, if any could be redressed only by approaching
      the Supreme Court.”
      27. Despite the above statement, the Minutes of the meeting
dated 03.06.2020, treated the letter of 04.05.2020 (by APPCB) as if
Sanvira’s original capacity was 3,30,000 MTPA, ignoring the consistent
                                                                              H
158             SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A     position, whereby its claims to that effect were rejected about five times
      previously. Keeping this background, the single judge concluded as follows:
            “37. A reading of the above Public Notices would show the
            marked departure made in the Public Notice dated 17.04.2020.
            While in terms of the Public Notices dated 26.11.2018 and
B           22.03.2019, the eligible entities were to produce “capacity
            of the unit and a valid consent certificate from SPCB/PCC”,
            in terms of Public Notice dated 17.04.2020, the eligible entities
            were to produce “State Pollution Control Board Certificate
            indicating capacity of the unit as on 09.10.2018 and also
            valid consent certificate from SPCB/PCC”. Therefore, while
C           under .the Public Notices dated 26.11.2018 and 22.03.2019,
            the applicant was to produce documents showing its
            Production capacity, in the Public Notice dated 17.04.2020,
            only a Certificate from the State Pollution Control Board
            indicating capacity of the unit as on 09.10.2018 could suffice.
D           No other document for supporting claim of Production
            Capacity as on 09.10.2018 could have been taken into
            account in terms of the Public Notice dated 17.04.2020.”
             28. The reasoning of the impugned judgment is that there was no
      distinction (contrary to the conclusion of the single judge) regarding the
E     public notice dated 17.04.2020 -between the certificate in the first part
      and 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 Tonnes
      was based on the total production capacity as on 09.10.2018 which had
      been fixed by this court on the basis of the capacity disclosed by all the
      calciners. It was also observed that an SPCB could indicate the
F     permissible limit of production of calcined petroleum coke. For Sanvira
      it was 2,00,000 MTPA; the consent to produce 3,30,000 MTPA of coke
      was given only after 29th November 2018. Therefore, it could not have
      been considered by the court. The certificate dated 04.05.2020 issued
      by the APPCB merely certified that the installed capacity of Sanvira, as
G     on 09.10.2018, for manufacturing calcined petroleum coke, was 3,30,000
      Metric Tonnes per annum in terms of the CTO. The total figure of 1.4
      Million Metric Tonnes of RPC was based on the permissible capacity as
      on 09.10.2018. The Division Bench, therefore, concluded that if production
      capacity had increased, the proportionate share to be given was after
      clearance by this court.
H
 M/S. SANVIRA INDUSTRIES v. RAIN CII CARBON (VIZAG)                              159
          LTD. & ORS. [S. RAVINDRA BHAT, J.]

       29. This court is of the considered opinion that the view expressed       A
by the impugned judgment is correct. Barring the fact that a clarification
was issued on 04.05.2020, by the APPCB, there was no change in
circumstance; 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 MT
per annum, for Sanvira. Even according to it, the claim for enhancement
                                                                                 B
was made later, and the CTO for the increased capacity was issued on
26.12.2019. In these circumstances, the clarification of APPCB, that as
on a particular date, the production capacity was 3,30,000 MTPA was
of no consequence, because it was the CTO that was considered all
along, in all previous meetings. Therefore, the findings and conclusions
of the Division Bench cannot be faulted.                                         C
       30. For the above reasons, it is held that there is no infirmity with
the findings and conclusions of the Division Bench, in the impugned
judgment. The appeals fail, and are, accordingly dismissed, without order
on costs.
                                                                                 D
Divya Pandey                                                Appeals dismissed.
(Assisted by : Kritika and Roopanshi Virang, LCRAs)




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