ASU manufacturers in the state are upset at Maharashtra State Biodiversity Board (MSBB) recently issuing a notice to a manufacturer for access and benefit sharing (ABS) non-compliance despite the fact that the matter on ABS non-compliance is sub judice in the court of law and likely to come up for hearing in a week’s time.

The copy of the notice which is with Pharmabiz states that MSBB has issued order to pay ABS in response to the concerned manufacturer’s reply that writ petition filed on behalf of manufacturers in the Bombay High Court (HC) is pending and therefore it is inappropriate to raise the demand notices for ABS.

The letter further states that in this context, it is to inform the concerned manufacturer that since you are not petitioners in the writ petition, you are therefore liable to pay ABS. It is requested to pay ABS and if your organization fails to pay ABS action will be initiated as per the Biological Diversity Act (BD Act), 2002.

Central India Ayush Drug Manufacturers Association (CIDMA) had filed a writ petition in the Nagpur bench of Bombay High Court for seeking clarity on whether Indian companies fall under its purview.

Following this, the Bombay HC had in the past also sent notices to the respondents in the case namely National Biodiversity Authority (NBA), MSBB, ministry of environment and forests (MoEF) and the state forest ministry and directed them not to take coercive action against the manufacturers.

Meanwhile, MSBB is also planning to file cases of non-compliance of ABS against ASU manufacturers at Judicial Magistrate First Class  court following notices served for the recovery of access and benefit sharing (ABS) under the Biodiversity Act (BD), 2002.

PIL filed by Vijay Sharma, secretary, CIDMA on behalf of CIDMA stated that ABS compliance is not applicable to Indian entities as there is no legislation in place to comply with. The inclusion of Indian companies to pay ABS through November 21, 2014 notification does not fulfill the validity or legal requirement of compliance under the BD Act. Only foreign companies and companies holding foreign equity can be held liable as per the BD Act.

As per the BD Act, manufacturers are accountable to share details of the source from where raw material has been procured in Form I and further submission of the same to MSBB.

MSBB had served around 350 notices in the past to the manufacturers in the state and received responses from only 20 manufacturers.

An official from MSBB stated that state biodiversity boards, NBA and central government are empowered to take legal action for the non-compliance to ABS.

As per the MoEF notification, dated November 21, 2014 the benefit sharing obligation from trader and manufacturer shall be in the range of 1 to 3 per cent and 3 to 5 per cent respectively of the purchase price of the biological resources. However, there is option to pay benefit sharing on sale price of the biological resources accessed for commercial utilisation under the law.

For annual gross ex factory sale of product, in case of Rs. 1 crore benefit sharing will be 0.1 per cent, for Rs. 1 to 3 crore, it would be 0.2 per cent, for above Rs. 3 crore turn over, the benefit sharing will be 0.5 per cent.