Case Note & Summary
The petitioner, Dow Chemical International Pvt. Ltd., filed a writ petition seeking a declaration that it is not required to obtain a No Objection Certificate (NOC) from the Narcotics Commissioner for exporting its product ADCOTE 545S, which contains Methyl Ethyl Ketone (MEK) as one of its components. The petitioner argued that since ADCOTE 545S is not itself MEK but a mixture, it is not covered under Entry 10 of Schedule-B of the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 2013, which lists 'Methyl ethyl ketone' without reference to salts or preparations. The petitioner also challenged a show cause notice dated 5 August 2024 issued by the Commissioner of Customs requiring it to show cause why the product should not be confiscated and penalty imposed. The respondents contended that the issue involves factual investigation, including whether MEK can be distilled or extracted from the product, and that the petitioner should exhaust the statutory remedy by responding to the show cause notice. The court held that the interpretation of Schedule-B entries requires factual investigation into the nature of the product, and the show cause notice does not suffer from inherent lack of jurisdiction. Accordingly, the court dismissed the petition, directing the petitioner to respond to the show cause notice and cooperate in the adjudication process, with the respondents to consider the petitioner's contentions on merits.
Headnote
A) Customs Law - Show Cause Notice - Jurisdiction - The court held that the issue of whether the petitioner's product is covered under Schedule-B involves factual investigation and cannot be resolved solely by interpretation of entries, hence the show cause notice cannot be quashed at this stage. (Paras 13, 20) B) NDPS Act - Controlled Substances - Interpretation of Schedule-B - The court noted that the expressions 'salts', 'preparation', or 'mixtures' have specific connotations in chemistry, and the petitioner's product being a mixture of chemicals including MEK does not automatically bring it within Entry 10 of Schedule-B, which lists 'Methyl ethyl ketone' without reference to salts or preparations. (Paras 18, 20) C) NDPS Act - Section 9-A - Power to Control Controlled Substances - The court observed that Section 9-A of the NDPS Act, 1985, empowers the Central Government to regulate controlled substances having regard to their use in production of narcotic drugs or psychotropic substances, and the 2013 Order made thereunder is not entirely alien to such use. (Paras 14-15) D) Customs Law - Exhaustion of Remedies - The court declined to interfere with the show cause notice, holding that the petitioner must first respond to the notice and avail the statutory adjudicatory mechanism, as the notice does not suffer from inherent lack of jurisdiction. (Paras 8, 23)
Issue of Consideration
Whether the petitioner's product ADCOTE 545S, containing Methyl Ethyl Ketone (MEK) as a component, is covered under Entry 10 of Schedule-B of the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 2013, thereby requiring a No Objection Certificate from the Narcotics Commissioner for export.
Final Decision
The petition is dismissed. The petitioner is directed to respond to the show cause notice dated 5 August 2024 within four weeks. The respondents shall consider the petitioner's contentions on merits and pass appropriate orders in accordance with law. All contentions are kept open.
Law Points
- Interpretation of Schedule-B entries
- Distinction between salts
- preparations
- and mixtures
- Exhaustion of statutory remedies
- Jurisdiction to issue show cause notice
