2016 (3) TMI 794 - HC - Customs

Classification of importers of poppy seeds - cap on import of poppy seeds - CAs there were numerous importers, a policy was evolved to allot specified quantities of imported poppy seeds on first come first serve basis - Subsequently, the policy changed through public notice by classifying the importer into two categories - Held that - In the impugned order, majority of the importers would be under the mercy of the few. The classification sought to be made would lead to monopoly, which in turn, would create an atmosphere of hostile discrimination. The impugned notice also does not reveal any reasons. There is no material to hold that there is a proper distribution of poppy seeds only through category A exporters. Therefore, there is no public interest involved. It appears that the impugned notice is only an attempt to distribute the country cap in view of the large number of applications. Therefore, the object is only commercial. It could be seen that even an importer, who continuously imports for a period of two years, would be in a disadvantageous position than the one who did it for the preceding three financial years out of the total five financial years. Therefore, even though there was no import for two financial years out of five financial years, such an importer will gain predominant position as against others. By applying the decision of the Division Bench of Madras High Court in the case of Hotel & Bar (FL.3) Association of Tamil Nadu Vs. The Secretary to Government & another 2015 (5) TMI 138 - MADRAS HIGH COURT and the decision of Apex Court in the case of Subramanian Swamy Vs. Director, Central Bureau of Investigation and another 2014 (5) TMI 783 - SUPREME COURT and Reliance Energy Ltd. Vs. Maharashtra State Road Development Corporation Limited 2007 (9) TMI 409 - SUPREME COURT OF INDIA , the impugned public notice cannot be sustained in the eye of law. While there is a permissibility of latitude, it cannot be said that exclusion of importers on artificial classification can be justified in the eye of law. It is further to be seen that the very purpose of classification itself is for the reason that it is impossible to satisfy all the importers. Also the decision aforesaid has not taken into consideration of the concept of level playing field . - Decided in favour of petitioner

Summary

Issues Involved:
1. Validity of the classification of importers into Category 'A' and Category 'B'.
2. Violation of Articles 14 and 19(1)(g) of the Constitution of India.
3. Maintainability of the writ petition.

Issue-wise Detailed Analysis:

1. Validity of the classification of importers into Category 'A' and Category 'B':
The petitioner challenged the classification of importers into Category 'A' and Category 'B' as arbitrary and lacking a reasonable basis. The classification was based on the duration of import activities, with Category 'A' consisting of importers who had imported poppy seeds for at least three financial years during the last five financial years. Category 'B' included all other importers. The court found this classification to be "illusory, artificial and evasive," as it did not provide a level playing field. The differentiation must be reasonable and related to the object intended. The court noted that the classification prejudiced new entrants and importers with less than three financial years of import, potentially driving them out of the market or forcing them to buy from Category 'A' importers. The court held that such a classification could lead to monopoly and hostile discrimination, thus failing to meet the standards of rationality and reasonableness required by law.

2. Violation of Articles 14 and 19(1)(g) of the Constitution of India:
The petitioner argued that the impugned public notice violated Articles 14 and 19(1)(g) of the Constitution of India. Article 14 ensures equality before the law, while Article 19(1)(g) guarantees the right to practice any profession or carry on any occupation, trade, or business. The court emphasized that a classification must not be arbitrary, artificial, or evasive and must have a rational relation to the object of the legislation. The court cited several judgments, including "Delhi Development Authority Vs. Joint Action Committee" and "Subramanian Swamy Vs. Director, Central Bureau of Investigation," to underline that the classification in question did not meet these criteria. The court concluded that the impugned notice failed to provide a level playing field and was discriminatory, thus violating Articles 14 and 19(1)(g).

3. Maintainability of the writ petition:
The respondents argued that the writ petition was not maintainable as the petitioner had not made an application under the impugned notice. The court rejected this contention, stating that the petitioner was challenging the very basis of the impugned notice and not its application. The court held that the writ petition was maintainable, especially since the petitioner had applied under the earlier policy, which was subsequently withdrawn.

Conclusion:
The court allowed the writ petition, setting aside the impugned public notice PS-7/2015 concerning the classification of importers into Category 'A' and 'B'. The court directed respondent No.4 to issue a fresh notice that complies with the law and provides a level playing field for all importers. The court emphasized that the new policy should avoid the civil consequences and discrimination inherent in the impugned notice. There was no order as to costs, and the connected miscellaneous petitions were closed.