Andhra Pradesh High Court - Amravati

Kerneos India Aluminate ... vs Union Of India on 17 June, 2021

            IN THE HIGH COURT OF ANDHRA PRADESH
                                ****

W.P.Nos.24863 of 2020 & 49 of 2021

W.P.No.24863 of 2020 Between:

Kerneos Indai Aluminate Technologies Private Limited Plot No.1, IC Pudi, Rambilli Mandal Atchutapuram, Visakhapatnam - 531 011 .... Petitioner

AND

Union of India Through its Secretary Ministry of Commerce and Industry (Department for Promotion of Industry and Internal Trade) Udyog Bhawan, New Delhi - 110 011 and four others .... Respondents

DATE OF JUDGMENT PRONOUNCED: 17.06.2021

SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND HON'BLE MS JUSTICE J. UMA DEVI

1. Whether Reporters of Local Newspapers may be allowed to see the judgment? Yes / No

2. Whether the copies of judgment may be marked to Law Reporters / Journals? Yes / No

3. Whether His Lordship wish to see the fair copy of the Judgment? Yes / No

_________________________ U. DURGA PRASAD RAO, J

______________ J. UMA DEVI, J

* THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND HON'BLE MS JUSTICE J. UMA DEVI

+ W.P. Nos.24863 of 2020 & 49 of 2021 W.P.No.24863 of 2020 % 17.06.2021 Between:

Kerneos Indai Aluminate Technologies Private Limited Plot No.1, IC Pudi, Rambilli Mandal Atchutapuram, Visakhapatnam - 531 011 .... Petitioner

AND

Union of India through its Secretary Ministry of Commerce and Industry (Department for Promotion of Industry and Internal Trade) Udyog Bhawan, New Delhi - 110 011 and four others .... Respondents

! Counsel for Petitioner : Sri S.Ravi, Senior Counsel representing Sri Asad Hussain

^ Counsel for Respondents : learned Assistant Solicitor General of India representing R1 & R2

Sri V.V.N.Narayana Rao, Standing Counsel for R3

Sri Suresh Kumar Routhu Standing Counsel for R4 & R5 < Gist:

> Head Note:

? Cases referred:

MANU/SC/0470/2004 = 2005 (4) ALT 27 (SC)

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND HON'BLE MS JUSTICE J. UMA DEVI

Writ Petition Nos.24863 of 2020 & 49 of 2021

COMMON ORDER: (Per Hon'ble Sri Justice U.Durga Prasad Rao)

The challenge in both the writ petitions is to the refusal of the

respondent/Customs officers of Customs House, Port Area, Visakhapatnam

to issue customs clearance to the High Alumina Refractory Cement (for

short, 'HARC') imported by the petitioners under the Bills of Entry and

insisting for production of Bureau of Indian Standard certificate on the

ground that HARC was incorporated as one of the products in Foreign

Manufacturers Certificate Scheme (for short, 'FMCS') under the Bureau of

Indian Standards Act, 2016 (for short, 'BIS Act, 2016') and Rules made

there under along with Cement (Quality Control) Order, 2003 (for short,

'CQC Order, 2003') as illegal and without jurisdiction.

2. In W.P.No.24863/2020, the petitioner averred that in their ordinary

course of business the petitioner imported HARC into India for their

business operations. Earlier the respondents have never raised any

requirement of compliance with the impugned CQC Order, 2003 qua the

refractory cement imported. As usual the petitioner sought to import and

clear the consignment of HARC vide Bill of Entry No.9002502 dated

30.09.2020 and 9815345 dated 04.12.2020 for stock and sale purposes.

However, the respondent Customs authorities refused clearance of the

aforesaid Bills of entry for the reason that the petitioner failed to produce

proof of due compliance with the applicable Indian standards for the

impugned CQC Order, 2003. Through the letter correspondence, the

petitioner explained that the CQC Order, 2003 does not apply to the

imported HARC but of no avail. The petitioner's claim is that HARC does

not fall within the definition of cement mentioned in clause 2(d) of CQC

Order, 2003 and hence, it does not require BIS certification.

3. The case of petitioners in W.P.No.49/2021 is also similar to the above

writ petition. The petitioners' company is engaged in manufacture and

export of variety of specialised refractories including those falling under

Chapter 69 of the First Schedule to the Customs Tariff Act, 1975. One of

the raw material used by the petitioners' company in the manufacture of its

refractories is Aluminous Cement popularly known as HARC because

alumina content therein is above 60%. The petitioners' company has been

regularly importing HARC since more than two decades from Imerys

Aluminates Asia Pacific Private Limited, Singapore and availing the benefit

of customs notification No.50/2017, dated 30.06.2017. Previously the

Customs authorities never insisted for production of BIS certificate. While

so, recently the petitioners' company imported Aluminous Cement SECAR

68V and Aluminous Cement CMA-72 (HARC) from Imerys Aluminates

Asia Pacific Private Limited, Singapore vide Bill of Entry No.9784277,

dated 02.12.2020. However, the respondent Customs authorities insisted for

mandatory compliance of BIS certificate. The correspondence made by the

petitioners explaining that HARC is not a cement and it is only a refractory

material used to withstand high temperature in furnaces in steel and iron

factories and therefore, HARC does not fall within the definition of cement

given in Section 2(d) of CQC Order, 2003, did not find favour with the

respondent authorities and they withheld the consignment.

Hence, the writ petitions.

4. The respondents 2 to 6 filed counter opposing the writ petitions and

inter alia contending thus:

(a) It is submitted that the Custom Houses under the Central Board

of Indirect Taxes & Customs (CBITC) is the implementing authority for

the allied Acts, of which BIS Act, 2016 is a part. Therefore, refusal to

admit the impugned goods into the country for non-production of

certificate of BIS cannot be faulted in view of the safety and security of

the public.

(b) It is true that till September 2020 the import of HARC by the

petitioners was not obstructed and BIS certificate was not insisted.

However, in October 2020 the BIS have specified the requirement of BIS

certification vide their official website wherein the requirement of BIS

certification under IS:15895:2018 for import of HARC was incorporated.

The petitioners violated the import EXIM policy read with 2(A) of

General Notes regarding Import Policy. After the update of the list of

items with standards which includes the subject items in BIS website, the

petitioners have imported the HARC. Since the BIS have already

specified that BIS standards are applicable for import of HARC, in the

month of October 2020, the same was insisted by the respondents from

the importer as per the CQC Order, 2003. Besides the office of the

Principal Commissioner of Customs, Visakhapatnam received a letter

from BIS dated 23.10.2020 regarding the applicability of the BIS standard

to the HARC and the BIS requested the Department to take necessary

action in that regard.

interpreted the definition of 'cement' found in the CQC Order, 2003.

From the said definition, it is clear that the imported goods are nothing but

cement of a different grade which is covered under the phrase 'any other

variety of cement'. Further, the BIS have specified vide their website in

October 2020 that IS:15895:2018 are applicable for import of HARC

meant for refractory purpose. In that view, the 5th respondent vide letter

dated 18.12.2020 insisted the importer to submit appropriate documentary

evidence to show that the imported goods are compliant to the standards

specified in BIS website. The petitioners are not admitting that HARC is

specified by BIS and making misleading statements. The petitioners'

contention that the EXIM policy only mentioned about 'High Alumina

Cement for structural Use' and therefore, if the same is meant for

'refractory' purpose the CQC Order is not applicable is totally incorrect.

The requirement of BIS approval for HARC was specified well in

advance by the BIS in October 2020. As the present consignments were

imported during December 2020, the importers got ample time to insist

and obtain BIS certification. The aforesaid goods are not prohibited and

freely importable and clearance is subject to production of BIS

certification, failing which the goods cannot be cleared for home

consumption and they are liable to be reexported back to the supplier.

(d) The contention of the petitioners that HARC is not a cement is

totally incorrect. Though manufacturing procedure and raw materials are

different, still the imported product is nothing but cement. It is submitted

that the respondent Custom authorities are not the proper officers to

decide which items are to be subjected to compulsory compliance under

the BIS Act, but it is the Central Government through BIS which decides

the items which are subjected to compulsory compliance keeping in view

the health, safety, environment, prevention of deceptive practices,

consumer security etc. The prerogative of the Government to include or

exclude a specific variety of cement from the list that requires BIS

certification cannot be questioned by the petitioners. There are no merits

in the writ petitions and the same may be dismissed.

5. In W.P.No.24863/2020, heard arguments of learned Senior Counsel

Sri S.Ravi representing Sri Asad Hussain, counsel for the petitioner, and

the learned Assistant Solicitor General of India representing the

respondents 1 & 2, Sri V.V.N.Narayana Rao, Standing Counsel for 3rd

respondent, and Sri Suresh Kumar Routhu, Standing Counsel for the

respondents 4 & 5.

6. In W.P.No.49/2021, heard arguments of learned Senior counsel Sri

S.Ravi representing Sri S.Mohammed Ismail, counsel for petitioners, and

Sri V.V.N.Narayana Rao, Standing Counsel for 1st respondent, and Sri

Suresh Kumar Routhu, Senior Standing Counsel for the respondents 2 to

6, and the learned Additional Solicitor General of India representing the

respondents 7 & 8.

7. Severely fulminating the action of the respondent-Customs

authorities in insisting the petitioners to produce BIS certificate against

the goods imported on the ground that the BIS has notified IS:15895:2018

High Alumina Refractory Cement as one of the items requiring such

certificate under the Foreign Manufacturers Certificate Scheme (FMCS),

learned senior counsel Sri S.Ravi would argue that HARC is in fact not a

cement and it is only a refractory material which has been imported by the

petitioners since considerable time to prepare refractories and to sell to the

steel and iron industries to use in their furnaces for resistance of high

temperature. The raw material used and manufacturing process adopted

by the ordinary cement factories and refractory cement factories are quite

different and one factory cannot produce the other type of cement. In

common parlance and in trade, the High Alumina Refractory material was

never understood as cement as technically also it is not. The ordinary

cement is meant for strength in ordinary temperature whereas the

refractory is meant for refractoriness at high temperature. He cited

Associated Cement Co. Ltd. v. State of M.P1 wherein the difference

between ordinary cement and refractory cement is explained. He argued,

in view of this difference, perhaps the Central Government has not

included the HARC in the definition of "Cement" under Section 2(d) of

the CQC Order, 2003. Learned senior counsel strenuously argued that

since the CQC Order, 2003 was issued by the Central Government in

terms of Section 14 of the BIS Act, 2016 and as refractory material was

MANU/SC/0470/2004 = 2005 (4) ALT 27 (SC)

not included in the definition of cement, it can be safely concluded that

HARC does not require the BIS certification.

Learned senior counsel argued that the standards and products

mentioned in FMCS are governed by the CQC Order, 2003. FMCS is a

part of compulsory certification scheme of BIS. All the products and

standards included in FMCS are mainly related to construction activity

and structural items. That is why IS:6452-High Alumina Cement for

structural use is specifically included therein. Since HARC is not notified

as cement by the Central Government for the purpose of CQC Order,

2003, the question of mandating BIS certification for HARC does not

arise.

Learned senior counsel while admitting that the Indian standard

was declared for HARC way back in 2011 and the said standard was

revised in the year 2018 by BIS and the new Standard was notified by

way of Gazette notification dated 14.05.2018, however, sought to argue

that mere notification of the standard of a particular good or article like

HARC will not make BIS certification compulsory for such good or

article, unless the Central Government makes a gazette notification

specifying the requirement of the BIS certification. Even 2011 standard

fixation for HARC did not make the BIS certification compulsory as the

Central Government did not issue notification in terms of FMCS.

Therefore, mere revision of the standard of HARC in 2018 by the BIS will

not make the said good as a new one so as to compel the requirement of

BIS certification. Referring to Rule 7(7)(b) of the Bureau of Indian

Standards Rules, 1987, learned senior counsel argued that Indian

standards are only voluntary and they will attain binding force only if the

parties stipulate it so in their contract or it was referred to in a legislation

or made mandatory by specific orders of the Government. He asserted

that since there is no such notification issued by the Central Government,

the respondent authorities cannot insist the petitioners to produce BIS

certification for the imported goods. He thus prayed to allow the writ

petition.

8. Refuting the argument of the petitioners, learned Standing Counsel

for the BIS Sri V.V.N.Narayana Rao argued that the goods imported by

the petitioners in both the writ petitions would come under the definition

'cement' mentioned in Section 2(d) of the CQC Order, 2003 and

therefore, in terms of FMCS, the importer shall obtain BIS certificate

from the exporter and produce for customs clearance. Taking us through

the definition 'cement' laid down in Section 2(d), learned counsel argued

that cement means 'any variety of cement' and therefore, in the broad

sweep of the said phrase, HARC is also subsumed in that definition and

liable for production of BIS certificate while imported. He took severe

objection of petitioners' argument that HARC is only a refractory material

but not cement and emphasized that without production of BIS certificate

the subject goods cannot get customs clearance.

For another reason also learned counsel persisted that the subject

goods require BIS certificate. As and when BIS notifies the quality

specifications for new product(s) as an Indian standard, the said Indian

standard would be deemed to be part of appendix III from the date of

implementation of the said Indian standards and the import of that

product(s) shall conform to the specified Indian standard in view of the

para 2A of the General Notes regarding Import Policy. Since standards

are prescribed for HARC by the BIS in 2018 and mentioned in the list of

items at Sl.No.16 with the standard as IS:15898:2018, the exporter shall

comply with the said standard by obtaining license from the BIS. He

would argue that the BIS notified the HARC and later the petitioners

imported the subject goods and therefore, they require BIS certification.

Since the petitioners have not produced the said certificate, the respondent

Customs authorities have rightly detained the subject goods. He thus

prayed to dismiss the writ petition.

9. Learned Senior Standing Counsel for CBIC Sri Suresh Kumar

Routhu while adopting the above arguments of the 1st respondent further

argued that as the Customs authorities are the implementing agency, they

follow the statutes and circulars issued under several enactments

including the BIS Act, 2016. Further, the Customs office received a mail

from BIS dated 23.10.2020 regarding the applicability of the BIS

standards IS:15895:2018 to the imported goods and therefore, respondent-

Customs officers detained the goods for want of BIS certification. He

placed reliance on the following decisions to argue that in similar

circumstances the act of concerned authorities in detaining the imported

goods for lack of BIS certificate was upheld by the Courts:

(i) The Commissioner of Customs v. M/s. City Office Equipment of Madras High Court [25.04.2019]

(2) Commissioner, Customs v. M/s. Aban Exim Pvt. Ltd. of Allahabad High Court [04.08.2014]

He thus prayed to dismiss the writ petition.

10. The point for consideration is whether the respondent authorities are

legally justified in demanding production of BIS certificate for the goods

imported by the petitioners in both the writ petitions?

11. Point: As can be seen from the respective arguments, the bone of

contention is the requirement or otherwise of BIS certification to HARC.

While it is the contention of the petitioners that indeed HARC is not a

cement but a refractory material and as such, it was not notified by the

Central Government as cement under the CQC Order, 2003 and so BIS

certification is not required, the respondents in turn argued that HARC is

very much included in the definition of cement in view of the employment

of phrase "any other variety of cement" in the definition of cement and

thereby BIS certificate is must. In that view, it is apposite to look into some

of the relevant provisions of the BIS Act, 2016, inasmuch as, the CQC

Order, 2003 was issued by the Central Government in exercise of the powers

conferred by Section 14 of the BIS Act, 1996.

Quality control is the method of standardization of quality of various

mercantile and consumable goods for the health and safety of the

consumable public. Since after the II World War, the World nations have

plunged in rebuilding their economies by enhancing the internal and

international trade. Hence, quality control became quintessential to meet the

qualitative requirements of foreign purchases and to survive the cutthroat

competition. In that process, India too has taken several steps, one of which

is the legislation of the enactment called the Bureau of Indian Standards Act,

2016.

12. As can be seen from the object of the BIS Act, 2016, Bureau of Indian

Standards is like a Nodal Agency or a National Standards Body for the

harmonious development of the activities of standardization, conformity

assessment and quality assurance of goods, articles, processes, systems and

services and for the matters connected therewith or incidental thereto.

(i) Section 3 of the Act says that the Central Government by notification in the official gazette establish a national body called Bureau of Indian Standards for the purpose of this Act. The members of the Governing Council constitute the Bureau, on which superintendence, direction and management of the affairs of the Bureau shall vest. As per Section 7, the Central Government shall appoint a Director General of the Bureau.

(ii) As per Section 4, the Governing Council with the prior approval of the Central Government, constitute an Executive Committee which shall perform, exercise and discharge such functions, powers and duties of the Bureau, as may be delegated to it by the Governing Council.

(iii) As per Section 9, the Governing Council may establish branches, offices or agencies in India or outside. The Bureau shall publish Indian standards and sell such publications and publications of international bodies. Section 9(2) lays down that the Bureau shall take necessary steps for promotion, monitoring and management of quality of goods, articles, processes, systems and services, as may be necessary, to protect the interests of consumers and various other stakeholders.

(iv) Section 10 postulates that the Bureau may establish, publish, review and promote the Indian standard in relation to any goods, article, process, systems or service in such manner as may be prescribed. The Indian standard shall be notified and remain valid till withdrawn by the Bureau. As per Section 13, a person may apply for grant of license or certificate of conformity if the goods, article, process, system or service confirms to an Indian standard. The Director General upon payment of such fees and on such conditions may grant license after making conformity assessment and quality assurance.

13. Thus, a conjunctive study of Sections 10 and 13 would show that the

Bureau may establish, publish, review and promote the Indian standards in

relation to the goods, article, process, system or service which shall be

notified in the Official Gazette. This notification is only to show that

standards are prescribed for certain goods, article, process, system or

service, but not for the purpose of compulsorily maintaining such standard in

the trade. However, as per Section 13, a manufacturer may apply for grant

of license or certificate of conformity for his goods, article, process, system

or service so as to use the Standard Mark for his goods or articles and the

Director General may grant such license.

14. Then Section 14 says that the Central Government after consulting the Bureau may notify precious metals or other goods or articles as it may consider necessary to be marked with a Hallmark or Standard mark and such goods or articles so notified may be sold through retail outlets certified by the Bureau after they have been assessed for conformity. Section 15 says that no person shall import, distribute, sell, store or exhibit for sale, any goods or article notified under sub-section (1) of Section 14, except under certification of the Bureau.

15. While Section 14 says that the Central Government for the purpose of

trade may notify certain goods, Section 16 lays down for a different and

avowed purpose the Central Government may notify certain goods.

(vii) Section 16 depicts that if the Central Government is of the opinion that it is necessary or expedient to do in the public interest or for protection of human, animal or plant health, safety of the environment, or prevention of unfair trade practices, or national security, if may, after consulting the Bureau, by an order published in the Official Gazette, notify

(a) goods or articles of any scheduled industry, process, system or service; or

(b) essential requirements to which such goods, article, process, system or service,

which shall conform to a standard and direct the use of the Standard Mark under a license or certificate of conformity as compulsory on such goods, article, process, system or service.

(viii) Section 17 says that no person shall manufacture, import, distribute, sell, hire, lease, store or exhibit for sale any such goods, article, process, system or service under Section 16(1)-

(a) without a Standard Mark, except under a valid license; or

(b) notwithstanding that he has been granted a license, apply a Standard Mark, unless such goods, article, process, system or service conforms to the relevant standard or prescribed essential requirements.

16. It should be noted that Rules are framed for the BIS Act called "The

Bureau of Indian Standards Rules, 1987". Chapter III of the Rules deals

with power and functions of the Bureau.

Rule 7 which is germane for our purpose says that the Bureau shall establish Indian standards in relation to any article or process and shall amend, revise or cancel the standards so established as may be necessary by a process of consultation with consumers, manufacturers, technologists,

scientists and officials through duly constituted committees. All standards, their revisions, amendments and cancellations shall be established by notification in the Official Gazette.

Rule 7(7) deals with the status of Indian standards. Rule 7(7)(b) reads thus:

(b) Indian Standards are voluntary and available to the public. Their implementation depends on adoption by concerned parties. However, an Indian standard becomes binding if it is stipulated in a contract or referred to in a legislation or made mandatory by specific orders of the Government (emphasis supplied).

It should be further noted that 1987 Rules were superceded by the

BIS Rules, 2017 and later those rules were superceded by the BIS Rules,

2018. Rules 15 & 24 of the BIS Rules, 2017 and 2018 are in pari materia

with Rule 7 of the BIS Rules, 1987.

17. So, according to the scheme of the BIS Act and its Rules, the Bureau

of Indian Standards is a National Standard Body having technical expertise

to establish national standards for goods or articles, process, system or

service etc. and it by itself has no power to enforce the implementation. On

the other hand, the standards fixed under Section 10 by the Bureau, have to

be notified by the Central Government and thereafter, if it considers that the

standards established in respect of goods and articles mentioned in Section

14 or Section 16 shall require compulsory conformity, the Central

Government shall make a legislation or issue specific order in that regard.

With the above jurisprudence the case on hand has to be tested.

18. Both the learned Standing Counsel for the respondents referred the

definition of "cement" mentioned in the CQC Order, 2003 to contend that

HARC is also included in the said definition, meaning thereby, it requires

BIS certification. Hence, we perused the said order. The CQC Order, 2003

was passed by the Central Government in exercise of the powers conferred

by Section 14 of the BIS Act, 1986. Section 2(d) defines the term 'cement'

thus:

"(d) 'cement' means any variety of cement manufactured or sold in India and includes blast furnace slag cement, portland pozzolana cement, rapid hardening Portland cement, white portland cement, hydrophobic portland cement, ordinary portland cement, low heat portland cement, high strength ordinary portland cement, cement used for the manufacture of railway sleepers, masonry cement, oil well cement, super sulphated cement or any other variety of cement which the Central Government may, by notification in the Official Gazette, specify for the purposes of this Order."

Be that it may, Section 3 says that No person shall himself or by any

person on his behalf, manufacture or store for sale, sell or distribute cement

which does not conform to the Specified Standard and which do not bear the

Standard Mark.

19. Needless to emphasize that stipulation in Section 3 applies to HARC

only if it falls within the definition of 'cement'. So when the definition is

scanned, it is an inclusive one wherein certain varieties of cements are

included and it further says that the definition includes any other variety of

cement which the Central Government may by notification in the Official

Gazette specify for the purposes of CQC Order, 2003. As rightly argued by

learned Senior Counsel for petitioners, HARC is not specifically mentioned

in the inclusive varieties of cement. So far as the term 'any other variety of

cement' is concerned, HARC is not specifically notified in the Official

Gazette by the Central Government. In that view, it is difficult to accept the

contention of learned Standing Counsel for the respondents that HARC falls

within the ambit of "any other variety of cement". Notification in Official

Gazette is the sine qua non for bringing HARC or any other material within

the scope of aforesaid phrase. In Associated Cement Co. Ltd. (1 supra)

before the Apex Court, the issue was whether refractory cement and Acco

Proof are cement and exigible to export tax. It was argued that refractory

cement and Acco Proof are in commercial parlance known as refractory

material and they are entirely different from cement or material made out of

cement. The refractory materials are used in furnaces and kilns to withstand

the high temperature, corrosion and abrasion and they are not usable as a

substitute of cement for construction activities and vice versa. The Apex

Court agreeing with the above arguments, held thus:

"The word 'cement' has not been defined in the relevant notification. Therefore it has to be understood in the same way as is understood in common parlance. Cement is exclusively used as a building material and is a commodity of everyday use. Therefore, we have to go only by the popular or commercial meaning of the term. The main property of the refractory is that it can withstand very high temperature, corrosion and abrasion. Cement is used for building roads, bridges and dams etc. and also by common people for building residential or commercial buildings. Anyone buying cement for building purpose would under no circumstance buy refractory. Similarly a mason or a supervisor would under no circumstance use refractory material in making a normal construction. The refractory is used for entirely different purpose namely for furnaces, linings and for insulation. A dealer would not supply refractory to anyone wanting to buy cement. In Cemento Corporation Ltd. Vs. Collector of Central Excise MANU/SC/0881/2002 : 2002 ECR 551 (SC) it has been held that it is axiomatic that if the product is not cement but can be used for some purposes like cement, such product is not cement. We are, therefore, of the opinion that refractory material produced by the appellant does not fall within the Entry "all types of cement" and consequently it is not exigible to levy of export tax."

Though the above judgment was rendered in the context of export tax,

still reliance can be placed on it to distinguish between the refractory

material and cement. For this and due to lack of Gazette Notification,

including the HARC in definition of 'cement' for the purpose of the CQC

Order, 2003, the prohibition specified in that order cannot be made

applicable to the imported goods in this case.

20. Nextly, learned Standing Counsel placed reliance on the notification

dated 14.05.2018 to argue that HARC was notified by the Central

Government for the purpose of complying the BIS certification. We have

carefully gone through the notification. It reads as under:

MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLICATION DISTRIBUTION (Department of Consumer Affairs) (BUREAU OF INDIAN STANDARDS) NOTIFICATION New Delhi, the 14 May, 2018

S.O.1966 (E). - In pursuance of clause (b) of sub-rule (1) of Rule 7 of the Bureau of Indian Standards Rules, 1987, the Bureau of Indian Standards hereby notifies that the Indian Standards, particulars of which are given in the second column of schedule hereto annexed has been established on the date indicated against it in third column. The particulars of the standards, if any, which are given in the fourth column shall also remain in force concurrently till they are cancelled on the date indicated against them in the fifth column.

      Sl.      No. Year & Title of the       Date of          No. Year & Title of       Date of
      No.        Indian Standards         Establishment      the Indian Standards     Cancellation
                    Established                             to be Cancelled, if any
      (1)               (2)                    (3)                   (4)                  (5)
      1                 xxx                    xxx                  xxx                  xxx
      2                 xxx                    xxx                  xxx                  xxx


      18       IS 15895:2018 High         9 May 2018         IS 15895:2011            9 May 2018
               Alumina Refractory                             High Alumina
              Cement - Specification                        Refractory Cement
                 (First Revision)                            - Specification

21. As can be seen, the said notification was issued in terms of Rule

7(1)(b) of the Bureau of Indian Standards Rules, 1987. As already discussed,

under Rule 7(1)(a), the Bureau is obligated to establish Indian standards in

relation to any article or process and it can amend, revise or cancel the

standards so established. As per Rule 7(1)(b), all standards, their revisions,

amendments and cancellations shall be established by notification in the

Official Gazette. So, in terms of Rule 7(1)(b), the standard earlier

established in the year 2011 for IS:15895:2011 HARC was revised on

09.05.2018 and the same was notified in the Official Gazette by the Central

Government. As per Rule 7(7)(b), this establishment of standard is only

voluntary to make it available to the public, but its conformity is not

mandatory unless it is referred to in a legislation or so pronounced by a

specific order of the Government. As rightly contended by the learned

senior counsel for the petitioners, the respondents have not produced such a

legislation or Gazette notification issued by the Central Government

mandating that the standard established by BIS for IS:15895:2018 shall be

compulsorily followed. Hence, the notification dated 14.05.2018 will not

advance the contention of the respondents. For the same reason, another

contention of the respondents that the standard specification notification

issued by BIS should be deemed to be part of Appendix III of Import Policy

and thereby, the import of HARC shall be supported by BIS certification

cannot be accepted. The citations in The Commissioner of Customs v.