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TMI Blog2018 (10) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... e strength of Atul Commodities Private Limited [2009 (2) TMI 18 - SUPREME COURT], it can be said that, Director General of Foreign Trade has no jurisdiction to amend the Export and Import Policy. The impugned notification herein, has not been suggested to be clarificatory in nature. The impugned notification no. 09/2015-20 dated June 3, 2016 issued by the Director General of Foreign Trade is quashed. - W.P. No. 11957 (W) of 2016 With C.A.N. 10268 of 2017 - - - Dated:- 5-10-2018 - DEBANGSU BASAK, J. For the Petitioner : Mr. Jaydeep Kar, Sr. Advocate Mr. Mainak Bose, Advocate Mr. Shakeel Akhtar, Advocate For the Union of India : Mr. Kausik Chanda, Ld. A.S.G. Mr. Bipul Kundalia, Advocate Mr. Debashis Basu, Advocate For the Respondent No. 6 : Mr. Rishabh Karnani, Advocate DEBANGSU BASAK, J.:- The petitioner has challenged notification no. 09/2015-20 dated June 3, 2016 issued by Director General of Foreign Trade. Learned Senior Advocate for the petitioner has submitted that, Director General of Foreign Trade has no jurisdiction to issue the impugned notification. By the impugned notification, a foreign trade policy is sought to be altered. Assuming tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 18G of the Industries (Development and Regulation) Act, 1951, learned Senior Advocate appearing for the petitioner has submitted that, the Central Government had passed the Newsprint Control Order, 2004. He has referred to the various provisions of the Control Order of 2004 and has submitted that, the petitioner was governed by such Control Order. Relying upon 1987 Volume 2 Supreme Court Cases page 602 (State of Haryana v. P.C. Wadhwa, IPS, Inspector General of Police Anr.) and 2009 Volume 5 Supreme Court Cases page 46 (Atul Commodities Private Limited Ors. v. Commissioner of Customs, Cochin 9) learned Senior Advocate for the petitioner has submitted that, Director General of Foreign Trade cannot amend the Foreign Trade Policy. It can, at best, issue a notification which is clarificatory in nature. The impugned notification seeks to amend the Policy, which cannot be done by the Director General of Foreign Trade. Learned Additional Solicitor General appearing for the respondent has submitted that, although, the impugned notifications speaks of exercise of power under Section 3 of the Act of 1992, for all practical purposes, powers under Section 5 of the Act of 1992 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... newspaper by the name of Sanmarg. The petitioner is registered with the Registrar of Newspapers. The petitioner requires newsprint for his business. It was obtaining such newsprint from custom bonded warehouses in terms of the import policy, prior to the issuance of the impugned notification. The petitioner claims that, its daily requirement of newsprint is less than 8 metric tons. According to the petitioner, it is not economically viable for the petitioner to import large quantity of newsprint as the petitioner would be required to do, in terms of the impugned notification. The same will entail a huge expenditure on account of import of newsprint as also infrastructural requirements such as storage facilities. The petitioner does not have such capacity or facility. The policy existing prior to the impugned notification permitted the petitioner to buy the requisite quantity of newsprint required from custom bonded warehouses without the petitioner being required to incur huge expenditure on import of newsprint and mobilize large infrastructural facilities. The impugned notification dated June 3, 2016 has sought to amend the import policy no. 2 under exempted code 4801 of Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the goods, services and technology with such exceptions, modifications and adaptations, as may be specified by it by notification in the Official Gazette. 6. Appointment of Director General and his functions.-( 1) The Central Government may appoint any person to be the Director General of Foreign Trade for the purposes of this Act. (2) The Director General shall advise the Central Government in the formulation of the foreign trade policy and shall be responsible for carrying out that policy. (3) The Central Government may, by Order published in the Official Gazette, direct that any power exercisable by it under this Act (other than the powers under sections 3, 5, 15, 16 and 19) may also be exercised, in such cases and subject to such conditions, by the Director General or such other officer subordinate to the Director General, as may be specified in the Order. 19. Power to make rules.-( 1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is to be, or may be, made by rules. 19(3). Every rule and every Order made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or the Order or both Houses agree that the rule or the Order should not be made, the rule or the Order, as the case may be, shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or the Order. Section 2(h) of the Act of 1992 defines order to mean any order made by the Central Government under Section 3. Section 3(1) allows the Central Government to publish an Order in the Official Gazette making provision for the development and regulation of foreign trade by facilitating imports and increasing exports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1/93 ..7-11013/1/9.2-E.III). Sanction of the President is hereby accorded to grant the status of ex-officio Addl. Secretary to the Government of India to the Director General, Foreign Trade, so as to enable him to authenticate Orders/Notifications/Other instruments in the name of the Central Government under the provisions of the Foreign Trade (Development and Regulation) Act, 1992. This issues with the concurrences of the Finance Division vide their Dy. No. 930/FD/93, dated 24.3.93. The Order dated March 24, 1993 has to be read in the context of Section 6 of the Act of 1992. The Director General of Foreign Trade can be empowered by the Central Government to exercise powers under the Act of 1992 except the powers under Sections 3, 5, 15, 16 and 19. The impugned notification claims to be one issued under exercise of powers under Section 3 of the Act of 1992. Therefore, under Section 6(3) of the Act of 1992, notwithstanding the Order dated March 24, 1993, the Director General of Foreign Trade has no jurisdiction to issue the same. Even if the contention of the Union of India that, the impugned notification is an exercise of powers under Section 5 of the Act of 1992 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Export and Import Policy. The impugned notification herein, has not been suggested to be clarificatory in nature. K.T. Plantation Private Limited Anr. (supra) has held that, non-laying of a notification required to be laid before the State Legislature under the provisions of Karnataka Land Reforms Act, 1961, is curable. There was difference of opinion in S.K. Dubey Anr. (supra) and therefore the registry was directed to place the papers before the Hon ble the Chief Justice for it to be assigned to an appropriate Bench. Ashok Sadarangani Anr. (supra) has held that reference of a case to a Larger Bench for decision does not mean that the law declared need not be applied or that the other proceedings involving the same issue should remain stayed till the decision is rendered. Air India Cabin Crew Association (supra) has held that, executive action of Central Government not formally expressed to have been taken in the name of the President is not ipso facto void. In view of the discussion above, the impugned notification no. 09/2015-20 dated June 3, 2016 issued by the Director General of Foreign Trade is quashed. No further order need be passed in C.A.N. No. 102 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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