9911796707
TMI Blog2013 (9) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing in various business tradings like manufacture and sale of mild steel ingots and also other commercial items. It started trading in construction sand, as there was acute shortage of construction sand in consequence of ban imposed on mining of sand in several parts of State of Kerala. This gave rise to huge demand for sand, therefore, the appellant started trading in construction sand which has better prospects in the field. In the year 2009 itself, Government of Kerala took a policy decision to import sand from abroad. The appellant-writ petitioner has obtained Import and Export Code (IEC) 3210016810. 2. In the Writ Appeal we are concerned with Foreign Trade Policy of 2009-14 and also the the Plant Quarantine (Regulation of Import into India) Order, 2003 (for short, 'PQ order'). The appellant imported construction sand from Cambodia measuring nearly 31333.71 MT, which was brought to Cochin Port by a vessel called 'Hongxin Blue Sea'. According to the appellant, under EXIM Code - 2505 as per the Foreign Trade Policy referred to above, construction sand is included and it is declared as free item, therefore, no other conditions are to be satisfied by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice maintained that no certificate could be issued as the Customs Department has already permitted the import. This was brought to the notice of the Commissioner of Customs by the appellant. Further, they maintained that plant quarantine clearance certificate is needed. He also produced a letter dated 25.8.2013 addressed to the first respondent by the District Collector, Ernakulam at Exhibit P6 admitting the necessity of construction sand which is required in the field of construction in the State particularly at Cochin on account of Metro Rail Project and such other projects. Subsequently, Exhibit P7 letter dated 31.5.2013 was sent by the second respondent to the appellant along with copy of Exhibit P8 letter dated 30.5.2013 sent by the fourth respondent Plant Protection Officer (WS) alleging violation on import of construction sand and the appellant was required to satisfy five times the inspection/fumigation fees to have the construction sand. At that point of time, when a show cause notice under Exhibit P9 was received proposing confiscation proceedings under Section 111(d) of the Customs Act, the appellant approached this Court filing the Writ Petition. The learned Single ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t prescribed under Schedule IX. The entire amount payable under Schedule IX, if calculated, would come to 1.25 crores for release of the cargo. According to the appellant, except the duty payable on the goods in question, respondents 1 to 3, are not entitled to claim any other fee or penalty under the Plant Quarantine (Regulation of Import into India) Order, 2003. In other words, according to them, respondents lack locus standi to adjudicate on the applicability of the PQ order. With these averments, the present appeal is filed seeking direction to respondents 1 to 3 to release the consignment without insisting PQ certificate, setting aside the judgment of the learned Single Judge. 5. In order to appreciate the contentions of the appellant, private party and the respondent authorities, we have to glance through the statutory provisions relating to the subject in controversy. The contention of the appellant-writ petitioner is, PQ Order, 2003 is not at all relevant. This Order, admittedly, is issued by virtue of powers under sub-section (1) of Section 3 of the Destructive Insects and Pests Act, 1914. Plant Quarantine Order, 2003 was made by the Central Government for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "4. Import of soil, etc.- No import of soil, earth, compost, sand plant debris along with plants, fruits and seeds shall be permitted except under the following conditions:- i. The consignments of soil, earth, clay and similar material for any microbiological, soil-mechanics, or mineralogical investigations and peat for horticultural purposes may be permitted through specified air or sea ports or land custom station, on applications made for that purpose; ii. The application for the purpose referred to in (i) above shall be made to the Plant Protection Adviser, at least one month in advance, in form PQ 06 along with a registration fee of ₹ 200/- by a bank draft drawn in favour of Accounts Officer, Directorate of Plant Protection, Quarantine & Storage, N.H.IV., Faridabad -121 001. iii. The Plant Protection Adviser may, after scrutiny of the application, and if satisfied of the purpose, for which such consignment is being imported, issue special permit in Form PQ 07. iv. The consignments soil, peat or sphagnum moss etc., shall be inspected, fumigated, disinfected or disinfested by the importer from an agency approved by the Plant Protection Adviser under the superv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1992 clearly indicates the power of the Central Government to publish in the official gazette by making provision for the development and regulation of foreign trade by facilitating imports and increasing exports. Sub-section (4) of Section 3 of FT Act, 1992 explains how FT Act, 1992 overtakes other law, rule, regulation, notification or order, which reads as under: "(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." 11. Reading of the above sub-section (4) of Section 3 clearly indicates, even if other provisions applying to a particular consignment is in order unless the provisions of FT Act, 1992 and the regulations or rules or notification issued from time to time under this Act are complied with, there cannot be any import into India. Section 5 refers to Foreign Trade Policy of the Government and how Central Government can formulate from time to time the norms by publishing by way of notification in the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as may be indicated under column 4 mentioning conditions relating to the policy and is also subject to any other law for the time being in force. If such conditions are indicated in the columns, definitely, such conditions have to be complied with including clearance certificate if applicable in any other law for the time being in force. One more column which describes policy condition was solely and exclusively to make the schedule self contained and user friendly. Further says, in spite of the description of columns, there may be other conditions applicable on imports. With these details, one has to see what exactly is the foreign trade policy of 2009-2014. Chapter 2 Clause 2.1 (a) and (b) are relevant, which reads as under: "2.1 Exports and Imports - 'Free', unless regulated. (a) Exports and Imports shall be 'Free', except when regulated. Such regulation would be as per FTP and/or ITC (HS). (b) ITC (HS) contains the item wise export and import policy regimes. The ITC (HS) is aligned with international Harmonized System goods nomenclature maintained by World Customs Organization." 15. Chapter 12 deals with oil seeds and oleaginous fruits; miscel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin six months of the seizure of the goods. The goods have to be returned to the person from whom the possession of the goods was taken. Section 111 refers to confiscation of improperly imported goods. Section 111(d) says, if any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force, they have the power to confiscate the goods. Section 124 deals with steps to be taken and followed, i.e., issuance of show cause notice before confiscation of goods, if the Customs have any jurisdiction to act in the circumstances. The entire arguments of the appellant is to the effect that without any jurisdiction, the authorities have insisted for plant quarantine certificate, though such certificate is not warranted either under PQ Order, 2003 or under the Foreign Trade Policy of 2009-2014. It is also not in dispute that one of the consignments under one entry bill though was cleared was not handed over only for want of plant quarantine certificate. There is no allegation whatsoever with regard to infringement or viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught with reference to Customs Act and foreign trade policy of 2009-14. Nothing on record would suggest any restriction so far as import of construction sand requiring the consignee to obtain any clearance. Even otherwise, in the absence of any material that this consignment is only aimed at using for the purpose of growing plants, on the presumption or apprehension that the end user may possibly use the same as media for growing plants cannot be a reason requiring the appellant-writ petitioner to pay fee five times equal to the fee charged under Chapter 2 of PQ Order, 2003. We are not placed with any formula or method by which material imported could be treated as construction sand or otherwise. This is not supported by any statute, regulation or rule. There is no requirement to ascertain that the consignment in question is construction sand or otherwise. 20. The learned Single Judge, on account of scarcity of river sand available in the State of Kerala, proceeded to opine that the consignment may be diverted to other purpose than the construction work. The learned Judge though opines that the State of Kerala is facing grave demand for construction sand, was not justified in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
