S.R. Waghmare, J. - This writ petition has been filed under Article 226 of Constitution of India, challenging the Circular No. 450/176/2014-Cus-IV, dated 7-11-2014, restricting the petitioner from importing Alloy Steel Deformed Bars falling under Chapter Heading 7228 of the CTA.

2. Briefly stated the facts of the case are that the petitioner Anik Industries Limited is a private company, incorporated under the Companies Act and engaged in the business of import of Alloy Steel deformed reinforcement bars. In the course of normal business the petitioner has placed an order for import of the goods Alloy Steel reformed bars as per the contract bearing No. HL1415142-S, dated 24-6-2014, by M/s. Hebei Taigang Iron & Steel Rolling Company Limited, China. The said manufacturer is a registered manufacturer of goods in accordance with the British Standards. The goods were shipped under the Commercial Invoice dated 4-9-2014. The Chinese manufacturer also issued product quality certificate known as MTC. However, the goods were refused clearance by respondent No. 3 by placing reliance on a circular issued by the Central Board of Excise and Customs, New Delhi. Circular No. 450/176/2014-Cus-IV, dated 7-11-2014 (hereinafter referred to as the "impugned Circular") the goods imported by petitioner had arrived in India at the port of Mumbai. Counsel for the petitioner vehemently urged the fact that this was much before the Steel Products (Quality Control) Second Amendment Order has been made effective. However, respondent No. 3 The Commissioner of Customs disregarded the past practise and refused to clear the goods. Hence, the present petition.

3. Counsel for the petitioner has raised the following grounds challenging the impugned circular dated 7-11-2014. Firstly, Counsel urged that the goods had arrived at the port of Chennai much before the steel products quality control order. The second amendment order has been made after the circular impugned dated 7-11-2014 was in force w.e.f. 4-12-2014. The contract between the parties is dated 24th June, 2014. The schedule of the standing order issued by the Central Government for steel quality control order dated 12-3-2012 was amended vide order dated 31-3-2014 and the goods of the petitioner are covered at Sr. No. 5 of the amended schedule column No. 4. However, local manufacturers of steel protested against the import of alloy steel by filing representations to indicate that alloy steel products were not covered under Serial No. 5 of the amended schedule to the Steel Quality Control Order. Counsel vehemently urged that the consignments of 25 M.M., 12 M.M., 16 M.M. & 2 M.M. imported deferred bars aggregating 4426.280 MT covered by the commercial invoice dated 4th September, 2014 were not answerable to the 2nd Amendment of 2014 which came into effect from 4th December, 2014 and the respondents were wrongly not clearing the goods of the petitioner.

4. Secondly, Counsel also urged that the impugned Circular was also challenged by this petition to be arbitrary, unreasonable and perverse since it does not satisfy the dual test as the items mentioned under the relevant BIS (Bureau of Indian Standards) and its corresponding heading of ITC (HS) Indian Trade Classification (Harmonised Systems) Column No. 3. The goods under Sr. No. 5 afore mentioned cover only one heading/sub-heading 72/31090 and 72/42090 and are goods pertaining to non-alloy steel, whereas the goods of the present petitioner are alloy steel and not covered under Column No. 3 of the amended schedule. The mere fact that the corresponding BIS 1786 covers both alloy steel as well as non-alloy steel is not sufficient to attract the provisions of the Steel Quality Control Order. And as such, Counsel urged that the impugned Circular is arbitrary, unreasonable and violative of Article 14 of the Constitution of India.

5. Counsel for the petitioner has vehemently urged that the impugned circular has been issued with a mala fide intention to favour some of the manufacturers and/or re-rollers of steel, who have vested interests and discriminate against persons like the petitioners. The impugned circular is a clear case of bias against the petitioners and reveals the case of nepotism in relation to some of the manufacturers and/or re-rollers of steel. The impugned circular, is therefore, arbitrary, unreasonable and violative of Article 14 and Article 19(1)(g) of the Constitution of India.

6. Counsel for the petitioner also urged that this Court clothed with the jurisdiction to decide the petition primarily because the petitioner Anik Industries Limited has its registered office at Indore and conducted its business therefrom is sufficient ground to grant jurisdiction to this Court and no question should be raised regarding the application of the Circular which was published at Delhi; to the cause of the respondent as impugned in the writ appeal/petition. It is also submitted that the imported goods are intended for sale within the jurisdiction of this Court, therefore, Indore Court is having jurisdiction to try the case and, therefore, the writ petition is maintainable. Counsel for the petitioner has vehemently urged the fact that Circulars issued by the Central Government can be challenged anywhere in the whole of the country. Moreover, the Circular has also been considered by the Bombay High Court as relied on by the respondent and therefore no question regarding the jurisdiction of this Court in this regard can be raised by the respondent.

7. Per contra Counsel for the respondent has submitted that the constitutionality and legality of the Circular No. 450/176/2014-Cus-IV, dated 7-11-2014, raised by the petitioner is without jurisdiction and would be a matter to be decided by the Division Bench. Moreover, Counsel submitted that the Circular had been issued from New Delhi and the bill of the goods imported by the petitioner dated 13-9-2014 had reached the port in October, 2014 and that the Central Government by the order dated 12-3-2012 had categorically stated that the product imported by the petitioner was included in the schedule and therefore the petitioner was not entitled to release of his goods as being claimed. More importantly Counsel submitted that petition was not maintainable and Indore High Court did not have the jurisdiction to try the Writ Petition. Counsel relied on Global Tradex Ltd. v. Union of India & Ors. along with other connected matters i.e. W.P. No. 2909/2014 (Magnum Steels v. Union of India & Ors.), W.P. No. 2962/2014 (Steel Mart India Private Limited v. Union of India & Ors. and W.P. No. (L) No. 2963/2014 (Sri Jagannath Steel Co. v. Union of India & Ors., wherein the Bombay High Court in the matter of Global Tradex Limited (Supra) has held thus :

"In the above circumstances we do not find any basis to hold that the Circular issued on 7th November, 2014 is ultra vires Article 14 of the Constitution of India. We are of the opinion that the Circular in no way prohibits the Petitioners from importing the goods. The same does not hold up unnecessarily the consignments. We are also not in agreement with the petitioners that the Circular is based on irrelevant, extraneous and non-germane considerations. The circular is also not discriminatory or mala fide. It is not ignoring any of the provisions of law. The Circular does not violate the mandate of Article 19(1)(g) of the Constitution of India or 300A of the Constitution of India. As a result of this conclusion, the Writ Petition fail. Rule is discharged in each of these Writ Petitions. There will be no orders as to costs."

Counsel also relied in the case of M.P. State Mining Corporation Limited v. Sanjeev Bhaskar & Ors., (2013) 12 SCC 326 [LQ/SC/2013/668] . Counsel prayed that the petition was without merit and the same be dismissed.

8. On considering the above submissions, I find that the jurisdiction of this Court is well clothed to try the issues. However, regarding the constitutionality and legality of the Circular, that is challenged before me, I find that the Bombay High Court has rightly held that Circular dated 7-11-2014 is not ultra vires the Constitution of India. However, this brings me to the second facet of the case in the matter of Global Tradex Limited (Supra), the Court has also held that "We are of the considered opinion that the Circular in no way prohibits the petitioner from importing of goods and the same does not hold up unnecessarily the consignments."

9. And in this light the important question to be considered is whether the Steel Alloy Deformed Bars would be included in Sr. No. 5 To crystalize the question I find that by the Circular dated 7-11-2014, issued by Govt. of India, Ministry of Finance, New Delhi the relevant factor to be considered in determining the applicability of BIS standard would be the description of the product in the Indian Standard and not the one indicated by the ITC (HS) Code. To put it simply; the import of the said Alloy Steel should be covered by the description of the product in the Indian Standard would require BIS certification and counsel for the respondent submitted that the impugned certificate has received confirmation from both Ministry of Steel and Bureau of Indian Standards and hence it is applicable to the petitioner. I however find that such is not the present case.

So also considering the submissions of both the Counsel; I also find that the explanation to the amended schedule indicates that any case falling under the ITC (HS) Codes notified under the Order shall not be restricted if they are not corresponding BIS Standard in Column and the explanation cannot be read to mean Steel Quality Control order shall be applicable to goods for which no ITC (HS) Code have been notified at all. Similarly, the issuance of the Steel Quality Control order Alloy Steel Products not covered by the headings and sub-heading of the ITC (HS) mentioned in the order have been allowed clearance at various ports all over India. And in this light it would be necessary to consider that the question is yet to be decided by the appropriate Appellate Authority whether the Alloy Grade Bars and high strength Deformed Steel Bars are not covered by the mandatory certification. In this light placing reliance on the fact that even in the matter of Global Tradex Limited (Supra) the Mumbai High Court held that "We are of the opinion that the Circular in no way prohibits the petitioners from importing the goods. The same does not hold up unnecessarily the consignments."

10. Thereby clearly indicating that the consignment of the present petitioner also has been wrongly withheld and is not necessary under the circumstances. Similarly, the next important question that now requires determination is whether this Court has the jurisdiction to pass the orders. Placing reliance on Naval Kishore Sharma v. Union of India and Ors. the Apex Court has held thus :

"Cause of actions if wholly or in part arose within territorial jurisdiction of High Court or not, held, is to be determined in light of nature and character of proceedings under Article 226 High Court can issue a writ if cause of action wholly or partially arises within its territorial jurisdiction even if person or authority against whom writ is issued is located outside its territorial jurisdiction. However, in order to maintain a writ petition, petitioner has to establish that his legal right has been infringed by the respondents within territorial limit of High Courts jurisdiction."

11. In this light, as mentioned in para 5 of the judgment above, Anik Industries Limited has registered office at Indore and conducts its business therefrom. Besides, the agreement has been entered into by the petitioner at Indore itself. Besides from the fact that the Bombay High Court has considered the impugned Circular; and similarly, the Court of Madras is also seized of the matter clearly indicating that the impugned Circular can be challenged in the present case at Indore High Court also.

12. Although the goods retained at the port of Chennai for want of clearance and have not been transported to Indore and hence part of the cause of action accrues to the petitioner at Indore. It was urged that goods falling under ITC (HS) Codes and duly notified under the Order shall not be restricted if they are not covered by the corresponding BIS Standard in Column (1). However nothing in the said Explanation can be construed to mean that the Order shall be applicable to goods for which no ITC (HS) Codes have been notified at all.

13. Similarly, on considering the question of applicability of the impugned Circular dated 7-11-2014 bearing No. 450/176/2014-Cus-IV and the fact that agreement is dated 24-6-2014 regarding the petitioners goods have been received at the port in consequence of commercial invoice dated 4th September, 2014, I find that the Circular cannot be applied retrospectively to the consignment of the petitioner and hence in this light also the petition needs to be partly allowed.

14. Consequently the petition is partly allowed and it is directed that the respondent No. 3 shall allow clearance of the goods covered by commercial invoice dated 4th September, 2014 and consignments of Alloy Steel Deformed Bars also forthwith lying in the port of Chennai. However, it is made clear that this Court is not making any observation regarding the application of the BIS Standards in accordance with the impugned Circular dated 7-11-2014. Even after release of the goods, if the respondent Department is still of the opinion that the consignment is not of the Bureau of Indian Standards, it is free to take action in accordance with the provisions of law and that the petitioner shall co-operate fully with the respondent in the investigation of the same.

14. With the aforesaid observation and directions, the petition is partly allowed to the extent herein above indicated.

15. No costs. CC as per rules.