2016 (4) TMI 790 - HC - Customs

Whether the fourth respondent is empowered to issue the public notice by imposing certain conditions over and above the three conditions stipulated in Chapter 12 of Exim Code 1207 91 00 relating to import of poppy seeds from China into India - Held that - the petitioner company has obtained Certificate of Importer-Exporter Code (IEC) issued by the Additional Director General of Foreign Trade for the purpose of commencing import of spices, poppy seeds and other items. It is clearly stated that during the course of his business, sought to import poppy seeds from China. However, the petitioner could not submit the necessary application for registration of the import contract in view of the multiple conditions imposed by the fourth respondent in the impugned public notice. In such view of the matter, the petitioner has a genuine grievance to be ventilated as against the impugned public notice issued by the fourth respondent inasmuch as it prohibits and restricts him to carry on his import business. Therefore, the petitioner has a right to question the impugned public notice issued by the fourth respondent especially when it violates the fundamental rights guaranteed to the petitioner as enshrined under Article 14 and 19 (1) (g) of The Constitution of India to carry on his legitimate business of import of poppy seeds and other goods. In the absence of any amendment to Import-Export policy framed by Central Government by publishing a notification in the official gazzette, it has to be held that the fourth respondent is not empowered to impose the conditions in the impugned public notice. Also, Article 39 (2) of the Constitution of India will not in any way be a source of power or provides a spring board to the fourth respondent to impose the conditions in the impugned public notice. - Decided in favour of petitioner

Issues Involved:
1. Jurisdiction and authority of the fourth respondent to issue the impugned public notice.
2. Violation of constitutional guarantees under Article 14 and 19 (1) (g) of the Constitution of India.
3. Applicability of the Foreign Trade (Development and Regulation) Act, 1992.
4. Validity of the conditions imposed in the impugned public notice.
5. Locus standi of the petitioner.

Detailed Analysis:

1. Jurisdiction and Authority of the Fourth Respondent:
The petitioner contended that the fourth respondent exceeded its jurisdiction by issuing the impugned public notice, which imposed additional conditions for the import of poppy seeds from China. According to the petitioner, the power to regulate import and export policies is vested exclusively with the Central Government under the Foreign Trade (Development and Regulation) Act, 1992, particularly Sections 3, 5, and 6. The fourth respondent's role is limited to ensuring that imports are from designated countries, verifying the legality of the poppy seeds, and registering import contracts. The court concurred, stating that the fourth respondent overstepped its jurisdiction by imposing conditions beyond those stipulated in Chapter 12 of Exim Code 1207 91 00.

2. Violation of Constitutional Guarantees:
The petitioner argued that the impugned public notice violated Articles 14 and 19 (1) (g) of the Constitution, which guarantee equality before the law and the right to practice any profession or carry on any occupation, trade, or business. The court found merit in this argument, noting that the additional conditions imposed by the fourth respondent were not authorized by any statutory provision and amounted to an unreasonable restriction on the petitioner's right to carry on its business.

3. Applicability of the Foreign Trade (Development and Regulation) Act, 1992:
The court examined Sections 3, 5, and 6 of the Foreign Trade (Development and Regulation) Act, 1992, which vest the power to formulate and amend export and import policies exclusively with the Central Government. The court concluded that the fourth respondent lacked the authority to impose additional conditions without a notification published in the official gazette by the Central Government.

4. Validity of the Conditions Imposed in the Impugned Public Notice:
The court held that the conditions imposed by the fourth respondent, such as the drawal of lots, restricting the quantity of import, and prescribing a time frame for receipt of applications, were beyond its jurisdiction and amounted to an unauthorized amendment of the Central Government's policy. The court emphasized that administrative instructions or letters of authorization could not override statutory provisions.

5. Locus Standi of the Petitioner:
The respondents contended that the petitioner lacked locus standi to file the writ petition as it had not previously imported poppy seeds and had not applied for registration under the impugned public notice. The court rejected this argument, noting that the petitioner held a valid Importer-Exporter Code and had a legitimate interest in importing poppy seeds. The court concluded that the petitioner had a genuine grievance and the right to challenge the impugned public notice.

Conclusion:
The court allowed the writ petition, setting aside the impugned public notice dated 27.01.2016 issued by the fourth respondent. The court held that the fourth respondent had exceeded its jurisdiction by imposing conditions not authorized by the Central Government's policy and that such conditions violated the petitioner's constitutional rights. The court emphasized that any amendment to the export-import policy must be made by the Central Government through a notification published in the official gazette.

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