9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (1) TMI 524 - HC - CustomsInterpretation of Statute - whether a Trade Notification can be amended by a Trade Notice in terms of Section 3 of the Foreign Trade (Development and Regulation) Act, 1992? - contention of the learned counsel for the petitioner is that the Trade Notice is not issued under any particular provisions of the FTDR Act - HELD THAT - There is no source of power for issuing a Trade Notice. As stated in the counter-affidavit, a Trade Notice is procedurally issued for clarifying certain doubts that may arise among the traders. The Notification No.8/2015-20, dated 12.06.2019 is silent about the applicability of restriction imposed on import of cashew kernels broken or whole to the units in SEZs and 100% EOUs. When such is the position, by placing reliance on the Section 3 and 5 of the FTDR Act, it is stated that the Trade Notice is issued stating that MIP on cashes is not applicable for imports by 100% EOU and units in SEZs. A reading of the proviso to Section 5 stipulates the issuance of a separate notification for the applicability of the Trade Notification or in any exemption, modifications and adaptations by a specific notification in the official Gazette. Notification No.8/2015-20, dated 12.06.2019, which was issued in exercise of power conferred by Section 3 of the FTDR Act read with paragraph 1.02 and 2.01 of the FTP 2015-2020, which, in the considered opinion of this Court, is an amendment in import policy conditions of cashew kernels both broken and whole. This Court is also of the view that any further amendment or clarification of this nature should also be made only as per Section 3 and not by a mere notice, which is not in accordance with the Statute. A reading of the Notification and subsequent Trade Notice makes it clear that Notification No.8/2015-20, dated 12.06.2019, enhancing the MIP of the broken and whole cashew kernels, wherein, the Trade Notice No.50/2019-20, dated 14.02.2020 states that the same is not made applicable to the EOUs and SEZs, which is certainly an amendment to the Trade Notification and it is cannot be stated that it is a mere elaboration, information or clarification to the Regional Authorities of the Directorate, as claimed by the respondents. Hence, the said clarification or modification to the original Notification cannot be made in terms of a mere notice without following the statutory procedure, in the given case. The allegation of the petitioner that the cashews imported from African countries are exported to foreign countries branding them as Indian cashews, which fact is not denied by the respondents in the counter-affidavit, cannot be brushed aside lightly. It is duty of the respondents to ensure maintenance of standards for the classification, grading or marketing of Indian goods in international grade, even from EOUs and SEZs and there should not be any space for compromise for the Indian brand name for any short gain by the Traders - the impugned Trade Notice is liable to be set aside. Petition allowed.
Issues Involved:
1. Whether a Trade Notification can be amended by a Trade Notice under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992. 2. The validity of Trade Notice No.50/2019-20, dated 14.02.2020, in relation to Notification No.8/2015-20, dated 12.06.2019. Detailed Analysis: 1. Amendment of Trade Notification by Trade Notice: The core question in this writ petition is whether a Trade Notification issued under Section 3 of the FTDR Act can be amended by a Trade Notice. The petitioner contends that once a notification is issued under Section 3, it cannot be amended by a Trade Notice, but only by another notification. According to the petitioner, the Trade Notice in question attempts to amend the rigor of the original notification, which is not permissible. 2. Validity of Trade Notice No.50/2019-20: The petitioner challenges Trade Notice No.50/2019-20, dated 14.02.2020, which clarifies that the Minimum Import Price (MIP) on cashew kernels is not applicable for imports by 100% Export Oriented Units (EOUs) and Special Economic Zones (SEZs). The petitioner argues that this Trade Notice effectively amends Notification No.8/2015-20, dated 12.06.2019, which set a minimum import price for cashew kernels to protect the Indian market from low-quality imports. The respondents defend the Trade Notice, stating it merely clarifies the original notification without modifying the policy. They argue that the relaxation given to SEZs and EOUs does not constitute a policy amendment and, therefore, does not require a separate notification. Legal Provisions and Interpretation: Section 3 of the FTDR Act: Section 3 empowers the Central Government to regulate imports and exports by issuing orders published in the Official Gazette. It allows for prohibiting, restricting, or regulating the import or export of goods or services. Section 5 of the FTDR Act: Section 5 allows the Central Government to formulate and amend the foreign trade policy by notification in the Official Gazette. The proviso specifies that any exceptions, modifications, or adaptations for SEZs must also be notified in the Official Gazette. Judicial Precedents: The petitioner cites several judgments to support their argument that statutory acts must be done in the manner prescribed by the statute and not otherwise. For instance, in "State of Bihar and Another V. J.A.C. Saldanha and others," it was held that when a statute requires a thing to be done in a certain manner, it must be done in that manner alone. Similarly, in "Babu Verghese and Others V. Bar Council of Kerala," the Supreme Court reiterated that if a statute prescribes a specific manner for doing an act, it must be done in that way or not at all. Court's Findings: The Court finds that Notification No.8/2015-20, dated 12.06.2019, was issued under Section 3 of the FTDR Act and amended the import policy conditions for cashew kernels. Any further amendment or clarification should also comply with Section 3 and not be done through a mere Trade Notice. The Court opines that the Trade Notice No.50/2019-20, dated 14.02.2020, which states that the MIP is not applicable to EOUs and SEZs, constitutes an amendment to the original notification. Therefore, such an amendment cannot be made through a Trade Notice without following the statutory procedure. Conclusion: The Court concludes that the impugned Trade Notice is an amendment to the original notification and should have been issued in accordance with the statutory procedure under Section 3 of the FTDR Act. Consequently, the Trade Notice No.50/2019-20, dated 14.02.2020, is set aside. The respondents are not precluded from issuing any further amendments to Notification No.8/2015-20 in the manner prescribed by law. The writ petition is allowed, and there is no order as to costs.
|
