9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (5) TMI 673 - HC - CustomsValidity of restriction imposed on import of pigeon peas, Beans of the species Vigna Mungo (L.) Hepper (Moong Dal) - Vires of N/N. 19/2015-2020, dated 05.08.2017 and 22/2015-2020 dated 21.08.2017 - the import policy of the goods were amended vide above notifications from free to restricted - Validity of Trade Notice No.19/2017 dated 25.10.2017 issued for the purpose of implementation of notifications - petitioners uniformly submitted that the above said notifications have caused grave prejudice to the petitioners in as much they are unable to import the contracted quantity of Pigeon Peas/Toor Dal due to the said notifications and trade notices. HELD THAT - From the provisions of the FTP, it is clear that the condition, which is stipulating certain measures subsequently and even such restriction placed on the imports are otherwise stated to be free. The expression unless otherwise stipulated appearing in clause (b) of para 1.05 makes it abundantly clear that it is not because there is a blanket provision made in para 1.05 that the restriction or regulation notwithstanding the export or import will ordinarily be permitted. If otherwise there is a stipulation, then these above words will not be of any assistance. Therefore, so far as the impugned Notifications are concerned, it is evident that they are issued in exercise of the powers conferred by section 3. The FTP, as amended from time to time, always contains stipulations with regard to the import. Section 19 (3) of the FTDR Act provides for laying every rule and every order made by Central Government under the Act before each house of parliament, which has not been complied with by the respondents. However, Section 3 confers the power of Central Government to make orders and announce the Foreign Trade Policy. In Notification No.4/2015-2020 the policy condition No.4 specifically states that the import is restricted for a period from 1st April to 30th June 2018, to the total quantity of one lakh MT of yellow peas minus the quantity already imported from 01.04.2018. Thus, the stipulation of policy condition No.4 restricted the import for the period from 1st April to 30th June, 2018 to the total quantity of one lakh MT is as per Section 3 notified by the DGFT. So, there cannot be any import exceeding this quantity within the period stipulated. This will also include the shipment already arrived and this understanding was not in dispute or confusion. If the contracted quantity in terms of the contract between the local importer and the person abroad, is specified and if the entire amount has been secured in terms of this Irrevocable Commercial Letter of Credit or full advance payment irrespective of whether the delivery of the goods will be made in part or not will be covered by the words already imported . Therefore, it can be understood that if there is an Irrevocable Commercial Letter of Credit, the shipment backed by such Irrevocable Commercial Letter of Credit and if they are already imported between the said notified date, they will be registered as per para 1.05 of FTP 2015-2020. With respect to advance payments made to the extent of hundred percent, they will also be qualified to register with the regional authorities of the DGFT. Thus, the transitional arrangement is already clarified by the trade notices, which are not in contravention to the substantive provisions of the notifications or Section 3 of the FTDR Act. The restrictions imposed by the Government of India are justified, which are brought out by the Government of India through the DGFT for the benefit of the farmers, who are cultivators of indigenous peas, as the import of Peas flooding the market reduce the demand for locally grown peas - the peas growers in India are unable get the right price resulting in loss to small farmers. Petition dismissed - decided against petitioner.
Issues Involved:
1. Legality of notifications and trade notices issued by the Director General of Foreign Trade (DGFT). 2. Jurisdiction and authority of DGFT to amend the import policy. 3. Whether the notifications and trade notices violate Article 14 and Article 19(1)(g) of the Constitution of India. 4. Impact of the notifications on importers and farmers. 5. Compliance with Section 3, 5, and 6 of the Foreign Trade (Development and Regulation) Act, 1992 (FTDR Act). Detailed Analysis: 1. Legality of Notifications and Trade Notices Issued by DGFT: The petitioners challenged the notifications and trade notices issued by the DGFT, arguing that such amendments to the foreign trade policy are the sole prerogative of the Central Government as set out in Sections 3, 5, and 6 of the FTDR Act. The petitioners contended that the DGFT does not have the power to issue these notifications and that the notifications did not indicate concurrence or approval of the Central Government, thus violating the mandate of Section 6 of the FTDR Act. 2. Jurisdiction and Authority of DGFT to Amend the Import Policy: The respondents argued that the DGFT acts as a regulator of the Foreign Trade Policy and issues notifications in consultation with the Central Government. They cited the judgment of the Constitution Bench of the Supreme Court in Dattatraya Moreshwar Pangarkar v. State of Bombay, AIR 1952 SC 181, to support their claim that the DGFT’s actions are valid and in substantial compliance with the requirements. The respondents also pointed out that the notifications were issued by the Central Government, and the DGFT merely signed them on behalf of the Central Government. 3. Whether the Notifications and Trade Notices Violate Article 14 and Article 19(1)(g) of the Constitution of India: The petitioners argued that the notifications and trade notices violated Article 14 (equality before the law) and Article 19(1)(g) (right to practice any profession, or to carry on any occupation, trade, or business) of the Constitution of India. They contended that the notifications did not categorize importers into different categories and were issued in violation of the constitutional guarantee of free trade. 4. Impact of the Notifications on Importers and Farmers: The respondents justified the restrictions imposed by the notifications, stating that they were necessary to protect the interests of domestic farmers. They argued that large-scale imports of pulses were adversely affecting domestic producers by causing a slide in prices below the minimum support price. The restrictions were imposed to balance the interests of domestic producers and importers. 5. Compliance with Section 3, 5, and 6 of the FTDR Act: The court examined whether the DGFT had the authority to issue the notifications under Sections 3, 5, and 6 of the FTDR Act. It was found that the notifications were issued by the Central Government and signed by the DGFT in its capacity as Ex-officio Additional Secretary to the Government of India. The court concluded that the notifications were in compliance with the statutory provisions and did not contravene the substantive provisions of Section 3 of the FTDR Act. Conclusion: The court dismissed the writ petitions, holding that the restrictions imposed by the Government of India were justified and aimed at protecting domestic farmers. The court found that the DGFT acted within its jurisdiction and authority, and the notifications did not violate Articles 14 and 19(1)(g) of the Constitution. The court also noted that the transitional arrangements clarified by the trade notices were not in contravention of the substantive provisions of the notifications or Section 3 of the FTDR Act. Consequently, the writ petitions were dismissed, and the connected miscellaneous petitions were closed.
|
