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TMI Blog2012 (1) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... be arbitrary, particularly, in view of the factual position evident from the table, extracted above, that the imports being way below the quota prescribed has no affect on domestic growers or the market and no harm to domestic growers or consumers is caused by notifying duty free import of maize (corn) and withdrawing the restriction of actual user. Petition disposed off - decided partly in favor of petitioner. X X X X Extracts X X X X X X X X Extracts X X X X ..... as already been notified by customs notification No.9/2007 dated 25.01.2007 and (2) With effect from the date of public notice the actual user condition will not be mandatory for import of items under TRQ scheme. Petitioner's challenge is to the aforesaid public notice, particularly, the deletion of condition of actual user for importing popcorn. 5. Mr. D.V. Seetharama Murthy, learned senior counsel for the petitioner, has made elaborate submissions, which are replied to by the learned Assistant Solicitor General. Mr. M.S. Ramachandra Rao, learned counsel, has appeared for proposed respondent, who seeks impleadment in opposition to the writ petition. The said implead petition is opposed by the learned senior counsel for the petitioner on locus and bonafides of the proposed party. 6. I have, however, allowed Mr. M.S. Ramachandra Rao to make his submissions on merits as well and as detailed hereunder, the application for impleadment deserves to be allowed, as the proposed respondent, if not a necessary party, certainly is a proper party, particularly, as the public law remedy is invoked by the petitioner. The reasons for permitting the impleadment as well as merits of the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of the present case and contends that the actual user condition was in conformity with the aforesaid provisions of the Customs Act and the export and import policy. The impugned public notice issued by DGFT, being contrary to the intention of the aforesaid provisions, is, therefore, liable to be declared as arbitrary. 10. It is also contended by the learned senior counsel for the petitioner, by placing reliance upon a decision of the High Court of Madras in WP.No.5120 of 2011 dated 31.03.2011 to substantiate that the actual user condition was not only being insisted upon by DGFT for all imports even in 2010, but the importers were proposed to be prosecuted also for violation of the undertaking as to actual user. 11. The Assistant Director General of Foreign Trade filed a counter on behalf of respondents 2 and 4 whereas respondents 1 and 5 have filed a counter through the Commissioner of Customs and Central Excise, Hyderabad Commissionerate II. 12. Respondents 2 and 4 accepted that the Government of India relaxed the customs duty and made it concessional at 15% in discharge of the obligations of India under WTO, which is evident from the customs notification No.21/2002 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were directed to be prioritized in terms of need base of the applicants. 14. The impleaded seventh respondent, through his affidavit submits that the earlier condition of actual user continued in the prescribed form in spite of the decision in the Inter Ministerial Meeting in the year 2003 itself, particularly, as the prescribed form for making application for imports was not appropriately amended and continued to show that applicant is required to satisfy the condition of 'actual user'. It is on account of the lack of appropriate modification that the confusion prevailed and the licenses issued continued to show the condition of 'actual user'. In order to clarify the confusion, therefore, the impugned public notice is issued by DGFT. The seventh respondent states that he had imported the corn under TRQ scheme and though the imported Maize has reached India, on account of the interim suspension of the impugned notification granted by this Court, the seventh respondent is unable to take the delivery. He, therefore, contends that he is seriously affected by the interim order as well as the pendency of the writ petition. It is also contended that the decision of the Government of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that under the Foreign Trade (Development and Regulation) Act, 1992, Section 5 provides that the Central Government may from time to time formulate and announce, by notification in the official Gazette, the export and import policy. So far as DGFT is concerned, under Section 6 of the Act sub-Section (2) provides that DGFT may advise the Central Government in formulation of export and import policy and shall be responsible for carrying out that policy. Sub-section (3) provides that the Central Government may delegate powers exercisable by it to DGFT or his subordinates except the powers of Central Government under Sections 3, 5, 15, 16 and 19 of the Act. It is, therefore, contended that the power under Section 5 with respect to policy formulation cannot be discharged by DGFT. Section 11 of the Customs Act, 1962 is also relied upon, which provides that the Central Government, if satisfied on necessity to do so for any of the purposes satisfied in sub-section (2), may prohibit or regulate import or export of goods and the purposes referred to for exercise of power are categorized under sub-section (2). Reliance is also placed upon sub-clause (g), (j) and (v) of sub-section (2) of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade may, however, grant a license/certificate/permission to any other person to import or export any of these goods. In respect of goods the import or export of which is governed through exclusive or special privileges granted to State Trading Enterprise(s), the State Trading Enterprise(s) shall make any such purchases or sales involving imports or exports solely in accordance with commercial considerations, including price, quality, availability, marketability, transportation and other conditions of purchase or sale. These enterprises shall act in a non discriminatory manner and shall afford the enterprises of other countries adequate opportunity, in accordance with customary business practices, to compete for participating in such purchases or sales. 19. It would be evident from the above that the item wise export and import policy shall be as specified under ITC (HS) publication and notified by DGFT, as amended from time to time. It is in pursuance of Section 6(2) read with clauses 2.1 and 2.4, referred to above, that the DGFT has to issue public notices from to time and it is made clear that such procedures may in the like manner i.e. through public notice, be amended from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning prescribed application format for import of items covered under TRQ continue to show the requirement of the applicant having to declare that goods imported will be utilized for the purpose for which they are imported and shall not be sold. 21. The decision of the Madras High Court relied upon by the learned senior counsel for the petitioner related to the summons issued by the competent authority to the importer for violating the undertaking as to actual user. The learned senior counsel for the petitioner has placed reliance upon the said judgment to substantiate that even in 2010 the condition of actual user was insisted upon and being followed. He has also placed reliance upon the license granted to NAFED dated 08.04.2010 by DGFT for importing 1300 MT of maize (corn), which was also specifically made subject to actual user condition besides other usual conditions. As mentioned earlier, pages 72 to 76 of the writ petition contain various licenses issued by the office of the DGFT to various importers all of which contain the condition of actual user even in the year 2010. Learned senior counsel, therefore, submits that the theory propounded by respondents 2 to 4 and further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UNION OF INDIA [(1995) 1 SCC 345] would also be relevant to be noticed as the said decision deals with the amendment of import policy of the Government of India wherein it was held that withdrawal of a notification issued under the Customs Act in public interest does not amount to violation of the doctrine of promissory estoppel and the import policy prevailing at the time of import of goods was upheld. Para 16 of the counter of respondents 2 and 4 refers to another decision of the Supreme Court in P.T.R. EXPORTS (MADRAS) PVT. LTD. v. UNION 0F INDIA [1996 (86) ELT 3 (SC) = (1996) 5 SCC 268] , para 5 of which is relevant to be extracted, as under: "5. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of grant of the licence. The Court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government is satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay own new policy. The Court, therefore, would prefer to allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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