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TMI Blog2019 (5) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... of para 1.05 makes it abundantly clear that it is not because there is a blanket provision made in para 1.05 that the restriction or regulation notwithstanding the export or import will ordinarily be permitted. If otherwise there is a stipulation, then these above words will not be of any assistance. Therefore, so far as the impugned Notifications are concerned, it is evident that they are issued in exercise of the powers conferred by section 3. The FTP, as amended from time to time, always contains stipulations with regard to the import. Section 19 (3) of the FTDR Act provides for laying every rule and every order made by Central Government under the Act before each house of parliament, which has not been complied with by the respondents. However, Section 3 confers the power of Central Government to make orders and announce the Foreign Trade Policy. In Notification No.4/2015-2020 the policy condition No.4 specifically states that the import is restricted for a period from 1st April to 30th June 2018, to the total quantity of one lakh MT of yellow peas minus the quantity already imported from 01.04.2018. Thus, the stipulation of policy condition No.4 restricted the import for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27319, 27327, 27334, 27336, 27339, 27342, 27361, 27370, 27378, 27417, 27710, 27735, 27757, 27816, 27817, 27822, 27826, 27828, 27848, 27860, 27871, 27887, 27913, 27921, 27930, 27933 to 27935, 27972, 28021, 28025, 28028, 28036, 28039, 28080, 28082, 28089, 28100, 28119, 28127, 28135, 28152, 28157, 28160, 28168, 28171, 28177, 28178, 28184, 28198, 28258, 28355, 28373, 28392, 28402, 28413, 28418, 28429, 28437, 28448, 28453, 28471, 28510, 28505, 28597, 28603, 28614, 28646, 28653, 28674, 28679, 28685, 28686, 28721, 28724, 28803, 28819, 28912, 28931, 28942, 29270, 29279, 29649, 29810, 29817, 29820, 29824, 29828, 29830, 29833, 29837, 29857, 29863, 29988, 29993, 30001, 30005, 30013, 30153, 30161, 30228, 30314, 30493, 30588, 31447, 31456, 31464, 32134, 32153, 32573, 32956, 32958, 33349, 33362, 33390, 33413, 33593, 33596, 33602, 33604, 33605, 33609 of 2018 and 364, 806, 812, 819, 1296, 1421, 1448, 1450, 1453, 1454, 1472, 1473 and 2107 of 2019 and connected W.M.Ps Mrs. Justice Pushpa Sathyanarayana For the Petitioner : Mr.Vijay Narayan, Senior Counsel for Mr.B.Sathish Sundar For the Respondents : Mr.G.Rajagopalan, Additional Solicitor Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments (CAD), or (iii) 100% CAD and hence, exercising the powers under para 2.58 of the Foreign Trade Policy (in short FTP ), by relaxing the provision of para 1.05, registration of such contracts were sought for with the Regional Authorities (RA) of DGFT for import of the said dals, in case advance payment had been made (full or in part) prior to 21.08.2017 with proof. The last date for such registration was fixed at 5.00 p.m. on 31.10.2017. 2.5. The first respondent issued Notification No.6/2015-2020 on 04.05.2018 seeking to partially modify the Notification No.22/2015- 2020, dated 21.08.2017 to the effect that the import of Urad and Moong Dal shall be subject to an annual (fiscal year) limit of 1.5 lakh MT each, totalling to 3 lakh MT. The said notification was also followed by the Trade Notice No.6/2018-2019, dated 11.05.2018 seeking applications from the millers/refiners for import of 2 lakhs MT of Pigeon Peas (Toor Dal) and 1.5 lakh MT each for Urad and Moong dals. This measure was to ensure that the total quota to be imported should not exceed the prescribed limit. 2.6. By virtue of the above notifications, the emphasis laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No.05/2015-2020 read in that order hereunder : Notification No.04/2015-2020, dated 25 April, 2018 **** Subject: Amendment in Import policy of Peas under Chapter 7 of the ITC (HS) 2017, Schedule - I (Import Policy) S.O (E): In exercise of powers conferred by Section 3 of FT (D R) Act, 1992, read with paragraph 1.02 and 2.01 of the Foreign Trade Policy 2015-2020 as amended from time to time, the Central Government hereby amends the import policy of items of Chapter 7 of the ITC (HS) Schedule - I (Import Policy) as under: Exim Code Item Description Existing Policy Existing Policy condition Revised Imort Policy Revised Policy condition 0713 1000 Peas (Pisum sativum) Free - Restricted Restricted for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.P Roy) Joint Director General of Foreign Trade TRADE NOTICE NO. 10/2018-19 Dated 16th May, 2018 **** The Directorate General of Foreign Trade has been receiving a number of queries seeking clarification on the Notification No. 04/2015-20 dated 25th April, 2018 vide which the import policy of Peas under Chapter 7 of the ITC (HS) 2017 has been amended. In the matter, it has been observed that even though the Notification clearly lays down that the Import Policy of 07131000 - Peas has been revised with revised policy condition, the effect of Notification, it has been indicated that the Import Policy of Yellow Peas has been restricted. Accordingly, vide this Trade Notice it is clarified that the Import Policy of item under Exim Code 07131000-Peas (pisum sativum), which includes all Peas (Yellow peas, Green peas, Dun peas, and Kaspa peas), has been restricted, and the effect is not restricted to only Yellow Peas , but to all items classified under Exim Code 0713 1000. It is further clarified that in cases where the import shipment of Peas are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy 2015- 2020 S.0. (E): In exercise of powers conferred by Section 3 of FT (D R) Act, 1992, read with paragraph 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time ot time, the Central Government hereby amends the provision in Para 1.05 (b) of the Foreign Trade policy (2015- 20) on Transitional Arrangements as under: 1.05: Transitional Arrangements Existing Para Revised Para (b) In case an export or import that is permitted freely under FTP is subsequently subjected to any restriction or regulation, such export or import will ordinarily be permitted, notwithstanding such restriction or regulation, unless otherwise stipulated. This is subject to the condition that the shipment of export or import is made within the original validity period of an irrevocable commercial letter of credit, established before the date of imposition of such restriction and it shall be restricted to the balance value and quantity available and time period of such irrevocable letter of credit. For operationalising such irrevocable letter of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade Policy. The contention of the petitioners is that the trade notices did not indicate that they have been issued either with the concurrence or the approval of the Central Government (DGFT), which is the clear mandate of Section 6 of the FTDR Act. According to the petitioners, the DGFT does not have the power to issue the above referred notifications. It is stated that the Notification No.4, dated 25.04.2018 restricted the import of peas (pisum sativum ) falling under EXIM Code 0713 1000 for a period of 3 months from 01.04.2018 to 30.06.2018. Thereafter, the first respondent issued Notification No.15, dated 02.07.2018 extending the effectiveness of Notification No.4 dated 25.04.2018 for a further period of three months until 30.09.2018. 3.1. The petitioners uniformly submitted that the above said notifications have caused grave prejudice to the petitioners in as much they are unable to import the contracted quantity of Pigeon Peas/Toor Dal due to the said notifications and trade notices. 3.2. The complaint of the petitioners is that in total contrast to the earlier trade notices and also the conditions stipulated in the notifications, the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be seen is whether there has been substantial compliance with those requirements, whereas, in the instant case, as there is no doubt that the notification was signed and released only in its official capacity as Ex-officio Additional Secretary to the Government of India. ...... Therefore, the executive action of the Union under the allocation of Business Rules framed under Clause 3 of Article 77 of the Constitution assumed immunity to be called in question that the said action is not made or executed by the President. The compliance of rules clearly discernible from the executive action does not invalidate the same. The rules of business framed under Article 77 of the Constitution for convenient transaction of business of Government of India and the allocation of minister in relation to the decision of any ministers as officers but such rules cannot override the provisions of the Act or statutory rules as held in State of Haryana V. Shri.P.C.Wadwa, IPS AIR 1987 SC 1301. .... Under the allocation of Business Rules, the DGFT is a subordinate officer to discharge the functions of the Central Government except where it acts as a delegate under the FTDR Act. ...... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns never sought to categorise importers into different categories. Hence, it was submitted that the Notifications and the clarifying Trade Notices are issued in clear violation of Article 14 of Constitution of India, which guarantees equality before the law and also clear violative of Article 19(1)(g) which guarantees free trade. 5.2. In response, it is contended by the learned Additional Solicitor General that the notification is always issued by the Central Government and the DGFT is only signing the notification on behalf of the Central Government. It is also contended that as per the Government of India Authentication (orders and other instruments) Rules 2002, Notification S.O.211(E) dated 16.02.2002, was issued by the Ministry of Home Affairs, in exercise of powers conferred by clause (2) of Article 77 of the Constitution and in supersession of the earlier rules, wherein, the DGFT is authorised to authenticate all orders and other instruments made and executed in the name of the President. Reference to item No.12 is useful in this regard and the same is reproduced hereunder : ... in the case of order and other instruments re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices or technology. Section 4 continues the existing orders made under the Imports and Exports (Control) Act 1947, which is repealed by FTDR Act. In the light of the above and the clarification on the transitional arrangement by the trade notices, it has to be held that the trade notices do not contravene the substantive provision of Section 3 of the FTDR Act or the notification of the Central Government. 6. The stand taken is that para 1.02 and 2.01 of the Trade Policy 2015-2020 is issued and referable to the power of the Central Government under Section 5 of FTDR Act. It is also stated that the import of peas under EXIM code 07131000 is restricted for the period mentioned, i.e., from 01.04.2018 to 30.06.2018, in the notification subject to policy Condition No.4 of Chapter 7 of the ITC (HS) 2017, Schedule-I. 6.1. It is contended that the farmers of this country are the most important stakeholders in the matters related to import/export and particularly the framing of its policy on agricultural products as the Central Government is required to strike a balance between the interests of the domestic producers and importers. Whenever it is observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TP 2015-2020 have to be borne in mind. The said clause reads thus : 2.07 Principles of Restrictions DGFT may, through a Notification, impose restrictions on export and import, necessary for: - (a) Protection of public morals; (b) Protection of human, animal or plant life or health; (c) Protection of patents, trademarks and copyrights, and the prevention of deceptive practices; (d) Prevention of use of prison labour; (e) Protection of national treasures of artistic, historic or archaeological value; (f) Conservation of exhaustible natural resources; (g) Protection of trade of fissionable material or material from which they are derived; (h) Prevention of traffic in arms, ammunition and implements of war (i) Relating to the importation or exportation of gold or silver. 7.2. It is submitted that in view of the failure of the respondents to follow clause 2.07 of FTP 2015-2020, the same are liable to be interfered. 7.3. Clause 1.00 of the FTP 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers relied on the interim order passed at the time of admission whereby, the impugned notifications were stayed, though they were ex parte orders. 9. Section 19 (3) of the FTDR Act provides for laying every rule and every order made by Central Government under the Act before each house of parliament, which has not been complied with by the respondents. However, Section 3 confers the power of Central Government to make orders and announce the Foreign Trade Policy. Any order made by the President, in exercise of powers conferred under clause (2) of Article 77 of the Constitution of India, whereby powers of authentication of orders and other instruments have been vested in the DGFT. 10. In Notification No.4/2015-2020 the policy condition No.4 specifically states that the import is restricted for a period from 1st April to 30th June 2018, to the total quantity of one lakh MT of yellow peas minus the quantity already imported from 01.04.2018. Thus, the stipulation of policy condition No.4 restricted the import for the period from 1st April to 30th June, 2018 to the total quantity of one lakh MT is as per Section 3 notified by the DGFT. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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