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TMI Blog2015 (6) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government is only empowered to formulate and announce the export and import policy. Therefore, when the DGFT Notification dated 04.08.2011 allowed free import of marble blocks/tiles provided the CIF value is US $ 60 and above per sq. mt., the petitioners were expected to declare the same, however, contrary to the same, they have declared below the US $ 60 and thereby, the authority has rightly confiscated the same and therefore, confiscation of the goods is justified. - Decided against Assessee. - W.P. No. 29317 of 2014, W.P.Nos.5822 & 5823 of 2012 And M.P. No.1 of 2014, MP.Nos.1 &1 of 2012 - - - Dated:- 11-6-2015 - The Honourable Mr. Justice S. Vaidyanathan,J. For the Petitioner : Mr. Hari Radhakrishnan For the Respondents : Mr. D. Vijayakumar, ACGSC [R1 R2], Mr. K. Mohanamurali, SPC [R3] ORDER These Writ Petitions have been filed, praying for the issuance of Writ of Certiorari, to call for the records of the impugned notification No.65(RE-2010)/2009-2014 dated 04.08.2011 issued in F.No.01/89/ 180/Misc-06/AM-08/PC-2(A) by the Director General of Foreign Trade (DGFT), the second respondent herein and quash the same and also quash the consequential o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importability or exportability of a class of goods. Import policy of marble is notified u/s 5 of the FTDR Act, and para 2.1 of 19(2)(c) are enabling provisions for issuance, denial or renewal of the licence required in terms of the policy on importability or exportability of a class or classes of goods. The import policy announced vide Notification Nos. 64 65 dated 4.8.2011 issued u/s 5 of the Act and para 2.1 is to be read with para 1.3 of Foreign Trade Policy with detailed conditions prescribed for import of rough marble, for the purpose of section 9(2) of the Act. 6. It is also stated that as against the order passed by the third respondent, the petitioners are having appeal remedy and without exhausting of the same, the petitioners have come forward with these Writ Petitions, which are not maintainable. Hence the respondents 1 and 2 sought for dismissal of the Writ Petitions. 7. A counter affidavit has been filed on behalf of the third respondent, wherein it is stated that as per DGFT Notification No.65(RE-2010)/2009-2014 dated 04.08.2011, the goods falling under Customs Tariff Headings 68022110, 68022120 and 68029990 are freely importable, subject to the policy condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power has to be exercised by a way of an order published in the official gazette and while so, by virtue of impugned notification, the Central Government has sought to restrict the import of the marbles, which can only be done by way of issuing an order under Section 3 and not by way of notification under Section(5). In this regard, he relied upon the decision of the High Court of Calcutta in M/s.Bimal Kumar Modi Vs.Union of India reported in 2014 (306) ELT 97 (Cal.) He also contended that if at all the Central Government wants to fix minimum import price for marble, they could have done so by fixing a tariff value under Section 14(2) of the Customs Act 1962 and not by way of issuing a notification under Section (5) of the FTDR Act. According to the learned counsel, fixing the value of goods can be done only under the Customs Act and Customs Tariff Act. Therefore, the learned Counsel sought for setting aside the impugned notification and orders passed by the third respondent. 10. Heard the learned counsel on either side and perused the documents available on record. 11. In exercise of its powers under Section 5 of the said Act, the Central Government has been announcing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be final and binding. 14. The provisions of the FTDR Act and Para 2.3 of FTP have been referred to above, would demonstrate the difference between amendment and clarification. The power to amend FTP is exclusively vested in the Central Government whereas the power to clarify is vested in DGFT. 15. Section 5 of the FTDR Act contemplates amendment to FTP. It empowers only the Central Government to amend the policy. This power is not given to DGFT. In Atul Commodities (P) Ltd., versus Commissioner of Customs , having noted the fact that the circulars issued by the DGFT, by which, the import policy itself was given effect to by changing the categorisation of items from the category of free to the category of restricted , the Hon'ble Supreme Court, while referring to the provisions of the FTDR Act vis-a-vis Foreign Trade Policy, has categorically held that by virtue of Section 5 of the Act, 1992, the Central Government alone is empowered to amend the policy and it is not open to DGFT vide circulars to change categorization of items from the category of free to the category of restricted imports. 16. The functions of the DGFT can be deciphered from Section 6 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r technology, only when the service or technology provider is availing benefits under the foreign trade policy or is dealing with specified services or specified technologies. (3) All goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly. (4) Without prejudice to anything contained in any other law, rule, regulation, notification or order, no permit or licence shall be necessary for import or export of any goods, nor any goods shall be prohibited for import or export except, as may be required under this Act, or rules or orders made thereunder. 18. Reverting to the case on hand, during August, 2005, the Central Government has introduced a floor price on processed marble products classified under Chapter 68 and a floor price of US$ 2700 per cubic meter was imposed on processed marble products such as tiles, monumental blocks, slabs etc., vide Notification No.23 dated 31.08.2005 and Notification No.26 dated 02.11.2005. Later, it was decided that the floor price should be notifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Therefore, I do not find any illegality or irregularity in the impugned notification in order to interfere with the same. The reliance placed upon M/s.Mira Commodities case and M/s.Bimal Kumar Modi case by the learned counsel for the petitioner, cannot be made applicable to the present case inamsuch as in the said decisions, it has been held that the DGFT has resorted to amend the import export policy, which is not permissible under the provisions of FTDR Act, but in exercise of Section 5 of the FTDR Act, the Central Government is only empowered to formulate and announce the export and import policy. 21. Therefore, when the DGFT Notification dated 04.08.2011 allowed free import of marble blocks/tiles provided the CIF value is US $ 60 and above per sq. mt., the petitioners were expected to declare the same, however, contrary to the same, they have declared below the US $ 60 and thereby, the authority has rightly confiscated the same and therefore, confiscation of the goods is justified. For the foregoing discussion, these Writ Petitions fail and they are dismissed. No costs. However, it is made clear that as against the impugned order of confiscation, the petitioner ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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