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TMI Blog2013 (8) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... not for the purpose of using the same as an insecticide condition in the import policy is legally sustainable - If boric acid was imported for the purposes other than for use as an insecticide the authorities under the Insecticides Act were not legally obliged to entertain an application for registration - For valid imposition of such a condition on importers Section 38 should had been qualified by words like, “subject to provisions of the export-import policy”, “except otherwise provided for in any other law for the time being in force” - Or else an appropriate provision should be made in the Act or at least in the import policy making it obligatory on the authorities under the Insecticides Act to consider applications for registration of boric acid - which was not intended for use as an insecticide – Decided in favor of assessee. - W.P. (C) No. 1577 of 2006 (K) and 26432 of 2006, 4168, 10934 of 2007 - - - Dated:- 15-2-2012 - S. Siri Jagan, J. Shri E.K. Nandakumar and A.K. Jayasankar Nambiar, Advocates, for the Petitioner. Shri P. Parameswaran Nair and ASG, Thomas Mathew Nellimoottil, SC, CB Excise, for the Respondent. JUDGMENT In all these writ petitions, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule of the Insecticides Act, 1968. If the import of boric acid is for a purpose other than as an insecticide, registration of the same under the Insecticides Act, 1968 is not necessary and exempted from. The petitioners submit that, therefore, the Central Government cannot put a condition in the import policy insisting on the petitioners getting a registration under the Act for enabling them to apply for licence to import boric acid. According to them, the export-import policy being a subordinate legislation and the Insecticides Act, 1968 being a plenary legislation, the subordinate legislation cannot violate the provisions of the plenary legislation insofar as under the plenary legislation, viz., the Insecticides Act, 1968, when boric acid is used for purposes other than as an insecticide, no registration is necessary or is contemplated. The petitioners rely on the decision of the Supreme Court in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and Others - (2006) 4 SCC 327, in support of that contention. 4. The learned Standing Counsel for the Central Board of Excise and Customs would seek to controvert the contentions of the petitioners with the support of a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 9(1) of the Insecticides Act, 1968 reads thus : 9. Registration of insecticides. - (1) Any person desiring to import or manufacture any insecticide may apply to the Registration Committee for the registration of such insecticide and there shall be separate application for each such insecticide : Provided that any person engaged in the business of import or manufacture of any insecticide immediately before the commencement of this section shall make an application to the Registration Committee within a period of seventeen months from the date of such commencement for the registration of any insecticide which he has been importing or manufacturing before that date : Provided further that where any person referred to in the preceding proviso fails to make an application under the proviso within the period specified therein, he may make such application at any time thereafter on payment of a penalty of one hundred rupees for every month or part thereof after the expiry of such period for the registration of each such insecticide. xxx xxx xxx xxx Section 38 of the Insecticides Act, 1968 reads thus : 38. Exemption. - (1) Nothing in this Act shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, as a subordinate legislation cannot be violative of any plenary legislation made by Parliament or the State Legislature. I am of opinion that the said law laid down by the Supreme Court squarely applies to the petitioners case also insofar as the subordinate legislation in the form of the condition in the export-import policy is clearly violative of Section 38 of the plenary legislation, viz., the Insecticides Act, 1968. 8. Apart from that, the condition violates the fundamental rights of the petitioners under Article 14 of the Constitution of India. The authorities under the Foreign Trade (Development and Regulation) Act, 1992, do not have any direct control over the authorities under the Insecticides Act, 1968. They have no powers to direct the authorities under the Insecticides Act, 1968 to do something, which the authorities under the Insecticides Act, 1968 are not obliged to do as per the provisions of the Insecticides Act, 1968. If boric acid is imported for the purposes other than for use as an insecticide, the authorities under the Insecticides Act, 1968, are not legally obliged to entertain an application for registration under Section 9 of the Act at the instance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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