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TMI Blog2020 (4) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... .19 of Schedule VII, which causes immense hardships to the importers and has brought such imports to a virtual standstill as the exporting countries do not export cotton grains in kibbled-crushed seeds/ pellets/ dried cake form, is not warranted, inasmuch as it places unreasonable restrictions on the import of cotton grains as animal feed despite the fact that import of such goods is unrestricted under the Foreign Trade Policy and the Customs Act. In the present case, it is evident that the reason behind the introduction of a larger definition of animal feed in Entry No.19 of Schedule-VII is merely with a view to overcome a situation, as reflected in the Draft Notification, and is not backed by any research or study which establishes that the import of cotton grains as animal feed has caused any kind of threat to the plants/plant species, as reflected in the affidavit in reply filed on behalf of the respondents. Thus, the decision to restrict the import of animal feed to kibbled/crushed seeds/ pellets/ dried cake form, which restricts the import of cotton grain as animal feed, is arbitrary or irrational and is not backed by any sound reason and renders such decision unsustaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Mundra, duly assessed the Bill of Entry and granted its clearance out of charge, on payment of duty of ₹ 8,48,402/upon EDI examination and also granted the out of charge order for home consumption. On seeking release of the goods from the Container Freight Station, the authorities refused to release the goods on the ground that the Plant Protection Officer has asked them to keep the consignment on hold. The petitioner suggested that when the consignment has already been cleared on scrutiny of all the relevant documents, it has to be released. However, such request was turned down. 5. On 19.07.2017 the Deputy Commissioner of Customs (SIIB) issued a letter to the petitioner informing it that the matter of import of cotton seed for animal feed grade was taken up with the Ministry of Agriculture Farmer Welfare, Government of India, wherein they had informed that the commodity Cotton Seed for animal feed grade or Cotton Seed for animal feed consumption is not notified in Plant Quarantine (Regulation of Import into India), Order, 2003. They also informed that for notification of plant and plant products for import, detailed pest risk analysis (PRA) is carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to clear the goods for import after fulfilling the conditions laid down in the order. Such conditions were (i) to have samples of the consignment tested through Government or Government recognised Laboratory for the purpose of germination; and if it is found that the rate of germination is so low that the seeds are incapable of being used for sowing, the condition shall stand fulfilled; and (ii) that the petitioners should file undertaking before this court that the goods would not be sold to the ultimate consumer before being crushed or kibbled or converted into cake form. 9. It is the case of the petitioner that finally it was done so, but under distress and by which time, in view of such long detention, the petitioner had incurred heavy losses to the tune of crores of rupees for demurrage, shipping charges, loss of $ value, CHA charges and essentially, loss of value of goods and major deterioration. Since the petitioner could only import about 2300 metric tonnes of goods under three bills of entries, import of 8700 metric tonnes under the same contract is pending. The subject consignments also being highly perishable in nature, now the supplier from Africa has already comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not confer any right upon the respondents to issue such notification since the preamble and purpose of the DI P Act is to see that infections do not spread within the country on propagation or planting of seeds by such quality of plants or plant produce either local or imported, to the crops. It was submitted that in the case of the petitioner, the cotton grain are being imported for consumption purpose and not for sowing purposes since they cannot be used for sowing as they have failed the germination tests. It was submitted that the export country has already certified that the cotton grain for cattle food consumption are incapable for sowing purposes since they do not have the required strength, which is very high in cotton seeds. It was submitted that there being no provision under the parent Act, the act of the respondents in curtailing import of animal feed by issuing the impugned notification under the Plant Quarantine Order is illegal and without any authority of law. It was submitted that by amending the definition of animal feed , an invalid restriction has been placed on the import of animal feed and, therefore, the respondents seek to do something indirectly wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d seeds under the Plant Quarantine Order and by not inserting another entry and by simply saying that they include cotton in the form of seed only and not as grain is absolutely illegal and is an unfair restriction on the import of cotton grain, which has been going on for years now. It was submitted that at the most the respondents could have changed the policy of export-import by seeking guidance from the Ministry of Commerce, which suggests and prescribes the EXIM Policy. 11.5 The learned counsel for the petitioner further submitted that there are many other seeds in the form of whole grains in Schedules-V and VII under the Plant Quarantine Order which are freely importable for consumption, and hence, there is no reasonable basis as to why only in case of cotton grains, an exception has been made, despite the fact that such cotton grain is not useful for sowing at all. It was further submitted that the doubt of exotic pests or infections by such cotton grains import is not justified since the very Plant Quarantine Order prescribes the Phytosanitary Certificate under PQ Form-21 on page 31 of the Plant Quarantine Order, which clearly states that the exporting country s Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posing restrictions for the import into India of plants/plant products to deter introduction of exotic/alien pests along with plants and plant products into the country from the country of export. It was submitted that on the other hand the Union Government has issued a number of notifications in exercise of powers conferred upon it under the DI P Act for allowing significant species of plants and plant products either to boost productivity of crops or to meet with the country s requirement of food products. 12.1 It was submitted that the notifications issued from time to time are in public interest to categorise plant products to deter or eliminate risk of pests, diseases and weeds from entering into the country which might be associated with plants and plant products. It was submitted that the risk of pests introduction is determined by conducting Pest Risk Analysis (PRA) under the provisions contained in Clause3, Chapter-II of the Plant Quarantine (Regulation of Import into India) Order, 2003. 12.2 It was submitted that it is true that any grain or seeds can be used as animal feed, but all grains or seeds of different plants might actually have different degree of exotic/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislative competence to make the subordinate legislation. (b) Violation of fundamental rights guaranteed under the Constitution of India. (c) Violation of any provision of the Constitution of India. (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. (e) Repugnancy to the laws of the land, that is, any enactment. (f) Manifest arbitrariness / unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules). 16. The court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t observed that such an agreement will be entered into with the local purchasers of such imported goods and a declaration that the same have been crushed or kibbled or converted into cake form would be filed before the authorities within two months. 14. In the above backdrop, certain statutory provisions may be referred to. Section 3 of the DI P Act empowers the Central Government to prohibit or regulate, subject to such restrictions and conditions as the Central Government may impose, the import into India or any part thereof or any specified place therein, of any articles or class of articles likely to cause infection to any crop or of insects generally or by class of insects by way of a notification in the Gazette of India. It further provides that a notification under the section may specify any article or class of articles or any insect or class of insects either generally or in any particular manner, whether with reference to the country of origin or the route by which imported or otherwise. Thus, the section empowers the Central Government to place restrictions or conditions on the import into India of any articles likely to cause infection to any crop or of insects gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (1) of section 3 of the DI P Act. Subclause (vii) of clause (2) of the Plant Quarantine Order defines grain to mean seeds intended for processing or consumption and not for sowing or propagation. Subclause (xvii) defines pest to mean any species, strain or biotype of plant, animal or pathogenic agent injurious to plants and plant products. Subclause (xviii) defines pest risk analysis to mean the process of evaluating biological or other scientific and economic evidence to determine whether a pest should be regulated and strength of any phytosanitary measures to be taken against it. Subclause (xxviii) defines seeds to mean seeds intended for sowing or propagating and not for consumption or processing. Subclause (xxxv) defines animal feed as kibbled-crushed seeds/pellet/dried cake form thereby denatured and free from weed seeds, bacterial and fungal pathogens. Subclause (xxxvii) defines processed items to mean processed to the point where the commodity does not remain capable of being infested with quarantine pests, viz. cooking (boiling, heating, microwaving), fermentation, malting, multimethod processing (combination of heat, high pressure, etc.), pasteurization, pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Food and Agricultural Organization and issued by an authorized officer at the country of origin of consignment or re-export. Thus, the Plant Quarantine Order provides for sufficient safeguards to ensure that the plants and plant products imported into the country are free of quarantine pests. Therefore, when the petitioner imports cotton grain for animal feed, it is accompanied by a Phytosanitary Certificate which certifies that the same is free of quarantine pests. 23. The contention advanced on behalf of the respondents that cotton grains cannot be allowed to be imported as animal feed is based on the supposition that the goods in question fall under Schedule V of the Plant Quarantine Order. However, this court, in the case of Logan Minerals Pvt. Ltd. v. Union of India (supra), has specifically held that animal feed will fall under Schedule VII and not Schedule V of the Plant Quarantine Order. Under the circumstances, the contention raised on behalf of the respondents does not merit acceptance. In the opinion of this court, if the respondents have any reason to believe that the safeguards provided under the Plant Quarantine Order are not sufficient, then there hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ton seeds for animal feed consumption by complying with the conditions contained in Schedule VII. The court further observed that Entry No.19, which stands amended, requires that such animal feed must be in kibbled-crushed seeds form or in the form of pellet or dried cake. Per se, any substance meant for animal feed does not have to be in these forms. The added requirements are more in the nature of conditions imposed for import of any substance as animal feed . 24. During the course of hearing of the matter, the court had called upon the learned senior standing counsel to explain as to why it was not possible to import whole cotton grain and thereafter, crush-kibble it in India. In response thereto, it was submitted that Pest Risk Analysis identifies the risk associated with a commodity and the specification of risk mitigating measures against them to facilitate safe trade. Accordingly, commodities have been notified in different schedules, viz. Schedule-IV, V, VI and VII of the Plant Quarantine Order based on Pest Risks associated with the commodity. Under Schedule VII, commodities exclusively meant for consumption where specific exotic pests are not listed, but can carry sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which indicates that the intention behind introducing the definition of animal feed is that they have been receiving representations to elaborate the definition of animal feed as entered in Schedule VII of the Plant Quarantine Order. Many importers bring in cotton seeds to use as animal feed, but the Plant Quarantine officers are not convinced about the final use of the cotton seeds and take action to deport/destroy the consignment as cotton seed is not allowed to be imported into India as per the Plant Quarantine Order. These importers then apply for relaxation of the Plant Quarantine Order and when their request is rejected, they appeal to the court seeking relaxation. To overcome this situation, it was advised that an elaboration of the definition of Animal Feed may be drafted and accordingly, it was proposed that the following explanation for animal feed be included: Animal Feed Kibbled-crushed seeds / pellets / dried cake form thereby denatured and free from weed seeds, bacterial and fungal pathogens. 28. This, in sum and substance, is the object behind introducing the definition of animal feed in the Plant Quarantine Order, which has a serious impact on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew. 15. In Union of India v. Dinesh Engg. Corpn.,(2001) 8 SCC 491,this Court delineated the aforesaid principle of judicial review in the following manner: 12. There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to the policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution. 16. The power of the Court under writ jurisdiction has been dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers. 17. The aforesaid doctrine of separation of power and limited scope of judicial review in policy matters is reiterated in State of Orissa v. Gopinath Dash, (2005) 13 SCC 495: 5. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in the matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Asif Hameed v. State of J K (supra) and Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, if any, as may be made by or under the Order . These words are of wide amplitude giving necessary powers to make such exceptions as the Central Government deems fit while issuing the notifications or the order in prohibiting, restricting or regulating import or export of goods, etc. In the process, it can restrict the import of particular goods through particular ports or disallow the import through specified ports (see Asian Food Industries, (2006) 13 SCC 542 judgment, already extracted above). Of course, such an action cannot be arbitrary or irrational and should be backed by sound reasons. 30. Thus, the court has held that the writ court has adequate power of judicial review in policy matters, however, once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of article 14 of the Constitution, power of judicial review would not extend to determine the correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. The court, however, has held that it is permissible for the Central Government to restrict import of part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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