2013 (8) TMI 100 - HC - Customs

Import of boric acid - Whether by a condition in the import policy of the Government of India obtaining the registration under the Insecticides Act was necessary - Held that - Condition in the import policy requiring the assesses to take out a registration under the Insecticides Act for applying for licence to import boric acid was arbitrary and unsustainable and liable to be quashed - Subordinate legislation cannot be violative of any plenary legislation made by Parliament or the State Legislature subordinate legislation in the form of the condition in the export-import policy was clearly violative of Section 38 of the plenary legislation i.e; the Insecticides Act - A rule was not only required to be made in conformity with the provisions of the Act whereunder it was made - but the same must be in conformity with the provisions of any other Act - relied upon Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and Others 2006 (3) TMI 688 - SUPREME COURT . Whether a condition for obtaining a licence to import of boric acid if such import was not for the purpose of using the same as an insecticide condition in the import policy is legally sustainable - If boric acid was imported for the purposes other than for use as an insecticide the authorities under the Insecticides Act were not legally obliged to entertain an application for registration - For valid imposition of such a condition on importers Section 38 should had been qualified by words like, subject to provisions of the export-import policy , except otherwise provided for in any other law for the time being in force - Or else an appropriate provision should be made in the Act or at least in the import policy making it obligatory on the authorities under the Insecticides Act to consider applications for registration of boric acid - which was not intended for use as an insecticide Decided in favor of assessee.

Summary

Issues:
Whether the respondents can insist on obtaining a registration under the Insecticides Act, 1968, as a condition for importing boric acid for non-insecticidal purposes, and whether such a condition in the import policy is legally sustainable.

Analysis:
1. Condition in Import Policy: The petitioners import boric acid for non-insecticidal purposes but are required to obtain a registration under the Insecticides Act, 1968, as per the export-import policy. The Central Government, under the Foreign Trade (Development and Regulation) Act, 1992, prescribed this condition for issuing import licenses. Both pre and post-amendment policies mandate this registration condition for boric acid imports.

2. Petitioners' Contention: The petitioners argue that under Section 38 of the Insecticides Act, 1968, substances like boric acid, when used for non-insecticidal purposes, are exempt from registration requirements. They assert that the export-import policy, being subordinate legislation, cannot contravene the plenary legislation of the Insecticides Act, 1968, which does not mandate registration for non-insecticidal use.

3. Respondents' Argument: The Standing Counsel argues that the Foreign Trade Act empowers the Central Government to set import policies. Referring to Supreme Court decisions, the counsel contends that the condition for boric acid import registration under the Insecticides Act, 1968, does not violate the petitioners' fundamental rights and is legally valid.

4. Judicial Analysis: The court examines the legality of the condition requiring registration under the Insecticides Act, 1968, for boric acid imports for non-insecticidal purposes. It notes that boric acid is listed in the Act's Schedule, exempting it from registration when not used as an insecticide. The court cites a Supreme Court case emphasizing that subordinate legislation must align with plenary legislation.

5. Constitutional Violation: The court finds that the condition violates Article 14 of the Constitution, as it is impossible for the petitioners to comply practically. Authorities under the Insecticides Act are not obliged to register boric acid for non-insecticidal use. The court deems the condition arbitrary, unreasonable, and unsustainable, leading to a violation of the petitioners' fundamental rights.

6. Final Decision: Relying on legal principles, the court quashes the condition in the import policy mandating registration under the Insecticides Act, 1968, for boric acid imports for non-insecticidal purposes. The writ petitions are allowed in favor of the petitioners.