2008 (9) TMI 213 - HC - Customs

Appellant contend that when import policy with reference to betel nuts is a free policy then notification No.15 (RE-2008)/2004-2009 issued by DGFT restricting the free trade of Betal nuts for a value of Rs.35/ per kg (C.I.F.) is arbitrary and curtails the right of the importers appellant s contention is acceptable held that price can be fixed only under Custom Act, 1962 or CTA, 1975 held that DGFT has no power to issue the notification under Section 5 r.w.s. 6(3) of the FTDR Act 1992

Issues Involved:
1. Constitutionality of the policy condition imposed by the Director General of Foreign Trade (DGFT) on the import of betel nuts.
2. Arbitrary nature of the fixed C.I.F. value of Rs. 35/- per kilogram for betel nuts.
3. Legal sanctity and power of DGFT to impose such restrictions under the Foreign Trade (Development and Regulation) Act, 1992 (FTDR Act).
4. Impact of the policy on the rights of importers under Articles 19(1)(g) and 301 of the Constitution.
5. Validity of the policy in light of the Customs Act, 1962, and the Customs Tariff Act, 1975.
6. Judicial review of policy decisions.

Issue-wise Detailed Analysis:

1. Constitutionality of the Policy Condition:
The petitioners challenged the policy condition imposed by the DGFT through notification No.15 (RE-2008)/2004-2009 dated 04.06.2008, which restricted the free trade of betel nuts by fixing a C.I.F. value of Rs. 35/- per kilogram. They contended that this condition was unconstitutional, arbitrary, and violative of their rights under the Constitution.

2. Arbitrary Nature of the Fixed C.I.F. Value:
The petitioners argued that the fixation of Rs. 35/- per kilogram as the C.I.F. value was arbitrary and curtailed their right to trade freely under Articles 19(1)(g) and 301 of the Constitution. They stated that the cost of betel nuts in foreign countries varied between Rs. 15/- to Rs. 20/- per kilogram, and fixing an import price of Rs. 35/- per kilogram was unreasonable and not based on any anti-dumping policy.

3. Legal Sanctity and Power of DGFT:
The petitioners contended that the DGFT had no power to issue such a policy under Section 5 read with Section 6(3) of the FTDR Act. They argued that the power to frame a policy solely vested with the Central Government under Section 3 of the Act, and there was no delegation permissible for evolving such a policy. The notification was signed by the DGFT and not by the Central Government, making it invalid.

4. Impact on Rights of Importers:
The petitioners claimed that the policy condition imposed by the DGFT violated their rights under Articles 19(1)(g) and 301 of the Constitution. They argued that the import policy for betel nuts was a free policy, and there was no justification for restricting their right to import by fixing an artificial price.

5. Validity in Light of Customs Act and Customs Tariff Act:
The petitioners argued that the Customs Act, 1962, and the Customs Tariff Act, 1975, provided sufficient safeguards for determining the value of imports and imposing duties. They contended that the DGFT could not override these provisions by fixing an artificial price under the FTDR Act. They also pointed out that the Customs Act provided for the appointment of Customs Officers to decide the value of imports, making the DGFT's notification redundant.

6. Judicial Review of Policy Decisions:
The petitioners asserted that the policy guideline issued by the DGFT could be scrutinized by the Court and was not beyond the pale of judicial review under Article 226 of the Constitution. They cited various judgments to support their argument that the Court could review policy decisions to ensure they were not discriminatory or unreasonable.

Judgment:
The Court found that the DGFT had no power to issue the notification under Section 5 read with Section 6(3) of the FTDR Act. It held that the price fixing on an artificial basis could not be done under the FTDR Act and had to be done in light of the Customs Act and the Customs Tariff Act. The Court noted that no material data had been furnished for arriving at the figure of Rs. 35/- per kilogram (C.I.F.) for the betel nuts imported. The notification was found to be contrary to the free import policy and made the importers commit further illegalities by retaining amounts in foreign countries. The argument that sub-standard materials were being imported was not supported by any records. The Court allowed all the writ petitions and set aside the impugned notifications, but did not order any costs. All connected miscellaneous petitions were closed.

← Previous Next →