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2016 (9) TMI 669 - HC - Customsvalidity of notifications - import of betel-nuts - notification dated 4/6/2008 issued by the Government of India, Ministry of Commerce and Industry, Department of Commerce - Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with paragraph 2.1 of the Foreign Trade Policy 2004-09 - Held that - Merely for the reason that the DGFT also hold the post of Additional Secretary to Government of India does not mean that he cannot exercise the powers vested in him as per the Rules especially when he had issued the notification in accordance with the procedure prescribed after due approval of the concerned authority - when the notification has been issued clearly indicating that it is a notification under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with paragraph 2.1 of the Foreign Trade Policy, 2004-09 and the power is exercised by the Central Government and when it is stated that the Central Government hereby amends the Schedule-1 and the signature is made by the DGFT as Additional Secretary to Government of India as well, the learned Single Judge was not justified in forming an opinion that DGFT himself has issued the notification in terms of Section 5 of the Act. Notification dated 20/2/2007 - notification dated 10/7/2007 - notification dated 29/8/2007 - restriction imposed for importing betel nuts from Mangalore Port - Held that - these notifications have already been superseded by the notification dated 4/6/2008, which has later on underwent further amendments as well. Hence, there is no necessity to consider the validity of the notifications dated 20/2/2007, 10/7/2007 and 29/8/2007. Matter remanded back for further consideration - appeal allowed - decided in favor of appellant.
Issues:
Challenging notifications issued by the Central Government under the Foreign Trade (Development and Regulation) Act, 1992. Analysis: The appeals were filed challenging a judgment allowing writ petitions that contested notifications issued by the Central Government regarding the import of betel nuts. The learned Single Judge's decision was based on the jurisdiction of the Director General of Foreign Trade to issue such notifications. The appellants argued that the Director General acted on behalf of the Central Government, as evidenced by the files produced. The court noted that the Director General issued the notification based on the Central Government's decision and in the capacity of Additional Secretary to the Government. The notifications dated 20/2/2007, 10/7/2007, and 29/8/2007 were also discussed, with the appellants stating that these had been superseded by a later notification dated 4/6/2008. The court focused on the validity of the 4/6/2008 notification as per the findings of the Single Judge. The said notification clearly indicated that it was issued under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, by the Central Government, signed by the DGFT and Additional Secretary to the Government of India. The court emphasized that the notification was issued by the Central Government, amending the Schedule-I under the Foreign Trade Policy, and signed by the DGFT as Additional Secretary. It was highlighted that the decision was made at the Ministry level before the notification was issued. The judgment of the Single Judge was deemed unjustified in concluding that the DGFT issued the notification independently under Section 5 of the Act. The contesting respondents argued that the Single Judge's decision was based on a counter affidavit, which clearly stated that the notification was issued as per the Central Government's policy. The court reiterated that the DGFT, also an Additional Secretary, could exercise powers vested in him as per rules, following the prescribed procedure and approval of the concerned authority. The court acknowledged the substantial contentions on the merits of the case raised by the writ petitioners and Customs authorities, emphasizing that these issues needed to be considered by the Single Judge upon remitting the matter back for further review in accordance with the law. The appeals were allowed, setting aside the Single Judge's judgment for reconsideration.
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