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TMI Blog2008 (7) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed. - 6004 to 6006 of 2008 - - - Dated:- 17-7-2008 - REPRESENTED BY : Shri N. Dilip Kumar, Counsel, for the Petitioner. Shri C. Arul Vadivel alias Sekar, Asst. Solicitor General of India, for the Respondent. [Order (Common)]. - Heard Mr. N. Dilip Kumar, learned counsel appearing for the petitioner and Mr. C. Arul Vadivel @ Sekar, learned Assistant Solicitor General of India appearing for the respondents. 2. These writ petitions are filed by the same party, and the buyers under the contract of export are different and hence the common order is passed. 3. The petitioner's partnership firm has been carrying on business of export of commodities like Salt and Maize since 1993. The first respondent by virtue of the Foreign Trade Policy of the Government of India, has announced certain conditions as to export of Maize and in these years. As per the said policy, which has been consistently followed by the Government, the export of Maize has been freely allowed without any restrictions. It was because of the erstwhile policy of the Government, the farmers have increased their cultivation in respect of Maize in States like Tamil Nadu, Karnataka and Andhra Pradesh. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing exporter, is equivalent to that of those exporters, who have been permitted to export of Maize from Kakinada, Jam Nagar and Kandla Ports. 6. In these circumstances, according to the petitioner, the change in the Policy of the Government in putting an embargo on the export of Maize affects the right under Article 19(l)(g) of the Constitution of India, since it is not reasonable restriction imposed on the right to carry on trade. That apart, it is the case of the petitioner that the conduct of the respondents in choosing few of the exporters, who are similarly situated as that of the petitioner and permitting them to export is discriminatory and therefore, it violates Articles 14 and 21 of the Constitution of India. 7. The first and second respondents have filed counter affidavit. A preliminary objection is raised about the maintainability of the writ petitions. According to the said respondents, what is challenged in these proceedings is the Policy of the Government, which cannot be questioned in a Court of Law. 8. The case of the first and second respondents is that the Government while framing a Policy or changing the Policy is presumed to have taken into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r affidavit that the first respondent is the proper authority to give reasons for the purpose of issuing Policy Notification, and therefore, the Policy Notification has been issued by the first respondent dated 03-07-2008 which is perfectly in order and the third respondent, being the implementing authority, has to follow only the Notification issued on 03-07-2008. It is also stated by the third respondent that the petitioner has not presented the cargo for Customs Examinations before 06-07-2008 except one S/B No. 1946277 dated 21-06-2008, in which shipment of 6445.66 Kgs of Maize was allowed for export on 25-06-2008. It is also stated by the third respondent that the petitioner, by a letter dated 04-07-2008 addressed to the third respondent, has requested to grant permission to move the export of cargo stuffed in 10x20 feet containers in respect of S/Bill No.1946193 dated 21-06-2008 and 1946194 dated 21-06-2008 from 'Raja Container Freight Station (CFS)', Tuticorin to Port after the truckers strike was withdrawn. In order to consider the request of the petitioner, a report was called for from the Customs Officer in charge of 'Raja Container Freight Station', who in turn reported t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e quantities submitted by the petitioner, the petitioner should be treated equivalent to that of the other exporters, and therefore, according to him, the conduct of the first respondent in denying the same right which has been given to the other exporters on 05-07-2008 is arbitrary and discriminatory in nature and violative of Article 14 of the Constitution of India. He would also submit that by applying the paragraph 9.12 of the said Policy, the other three exporters, as stated above, ought not have been allowed. The contention of the learned counsel is that, all the shipping bills were presented to the customs authority prior to the Notification of the Government. 11. On the other hand, Mr. C. Arul Vadivel @ Sekar, learned Assistant Solicitor General of India, would submit that, as stated by the Customs Department, on fact the petitioner has not complied with the requirements for completion of process of export. The factual aspect which is explained by the third respondent in the counter affidavit is highlighted by the learned Assistant Solicitor General, stating that on enquiry it was found that the shipping bills were not even registered with the Customs Department and cargo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been covered with "Let Export Order" and the remaining part were awaiting for issuance of such order and was in the shipping bills stage. 14. The main thrust as made by the learned counsel appearing for the petitioner basing reliance on the Notification of the first respondent dated 05-07-2008 to substantiate his contention regarding the discrimination made against the petitioner bound to fail on the sole reason that this Court is not called upon in these writ petitions to decide about the validity or otherwise of exemptions/benefits granted in respect of some of the exporters as a matter of Policy on 05-07-2008. In such circumstances, I am of the considered view that it is not for this Court to hold that the Notification dated 05-07-2008 showing exemption or lenience to some of the exporters are bad in law. However, as the basic foundation of the case of the petitioner appears to be on the ground of discrimination and violative of Article 14 of the Constitution of India, I deem it fit to consider the said contention also. 15. On fact as it is stated in the counter affidavit by the third respondent Customs Department, there is no difficulty to come to the conclusion that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort/Ship Name Quantity Loaded (MT) Balance to load (MT) 1. Kakinada/Lion Trader 13500 2500 2. Kakinada/Van Lee 16100 8000 3. Kakinada/Vinasin Sun 8500 3700 4. Kakinada/Huang Yun 4600 2200 5. Kakinada/Pacific Bangan 3700 16500 6. Kakinada/Cailan 2 1400 4700 7. Kakinada/Fu Shen 1100 6500 8. Jamnagar/Thor Jupiter 6410 15600 (b) Also, it is reported that following 6 vessels at Kandla Port, where 'Let Export Order (LEO)' has been passed by Customs for significant quantity but the loading is still to commence. Port/Ship Name Quantity Loaded (MT) Balance to load (MT) 1. Kandla/Tai Shun 0 11000 Kandla/Noor e Mustaffa (both vessels substituted by M.V.Fuyang for 22000 MT - Vessel already in Port waiting for berth) 0 15000 (with LEO for 22000 MT) 2. Kandla/Halina 0 24000 (with LEO for 12000 MT) 3. Kandla/Ivan Makran 0 22000* ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith that of the three other exporters who have been permitted by the first respondent to export Maize?. Except that the commodity Maize is same in all the cases and petitioner and the said three traders are exporters, I do not see any equality among them. As I have narrated above, the Notification of the Government dated 5-7-2008 is self-explanatory, which makes it clear and distinguishable to that of the petitioner's case. The petitioner cannot say that he is an exporter and the other three exporters who have been given permission were also exporters and therefore, all of them should be treated equal. The equality concept which is applicable as far as policy making in this case depends upon the factual situation which can be comparable to "taxable event" in taxing law. In the present case, it is only when the goods pass on to the Customs Authority under its custody, the question of completion of the export will arise and in cases where the permission has been granted in respect of the three other exporters, they are distinct and they have crossed the first stage and in some cases the second stage has also been crossed where "Let Export Order" has been issued and the goods are awai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y restriction or regulation, such export or import will ordinarily be permitted notwithstanding such restriction or regulation, unless otherwise stipulated, provided that shipment of export or import is made within original validity with respect to available balance and time period of an irrevocable commercial letter of credit, established before date of imposition of such restriction. However, a time limit for operationalising such LCs may be prescribed". 23. According to the said clause, certain transitional arrangements have been made protecting transaction of import and export may based on irrevocable commercial letters of credit established before the date of imposition of any restrictions. Therefore, as per the said Policy, it enables the Government to permit export, in spite of imposing restrictions, in cases where certain transactions have crossed a limit of a period of an irrevocable commercial letter of credit. The Policy is not a matter of right for a trader, since the Policy is subject to change. Therefore, while issuing the Notification by the Central Government on 03-07-2008, by which, the Government by exercising its power under Section 5 r/w Section 3(2) of the Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en imposed on the basis of public interest. There is no difficulty in come to the conclusion that the said Notification is a Policy Notification of the Government. 25. While so, the contention of the learned counsel for the petitioner that the said Policy Notification should be taken as arbitrary, causing gross injustice to "Maize" exporters and ultimately to the maize growers is absolutely baseless. The further contention that permission granted to the three exporters on 05-07-2008 is against para 9.12 is also unsustainable. It relates to the procedures to be followed for the purpose of "date of shipment and despatch" in respect of exports. The repeated insistence by the learned counsel for the petitioner in respect of the term in Para 9.12 of the Handbook of Procedures that in cases where the procedures or Policy has been modified to the disadvantage of an exporter, the same shall not be applicable to the consignment already handed over to Customs for examination and subsequent export upto public Notification/Notification date, is also baseless. The said Para of 9.12 reads as follows :- Mode of Transportation Date of Shipment/Dispatch (i) By Sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore in respect of that part, when the other exporters were given permission, the same should have been given to the petitioner also. As I have elicited above, there is no equality between the petitioner and the other three exporters to whom permission has been granted. 28. The admitted case of the petitioner is that, in respect of no quantity of materials of Maize belonging to the petitioner, the goods have gone to the Customs for examination and it is at the stage of shipping bill under the consideration of the Customs Department. Whereas, in cases where exemption was granted i.e., in respect of three exporters, regarding some of them, "Let Export Order" has been issued for the whole quantity and regarding some of the items, only for a part of the quantity. "Let Export Order" is issued and for the remaining part, shipping bill is pending. When the entire quantity forms part of one consignment, out of which, "Let Export Order" had been issued for a part of the quantity and the remaining part is pending with the Customs Department for clearance, it cannot be equated with that of the petitioner's case, since, the entire commodity is only at the shipping bill stage i.e., the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... former case, it is by mala fide exercise of power or the decision or action taken is in abuse of power. The doctrine of legitimate expectations plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is settled law that the Court gives the large leeway to the executive and the legislature. Granting licences for import or export is by executive or legislative policy. Government would take diverse factors for formulating the policy for import or export of the goods granting relatively greater priorities to various items in the overall larger interest of the economy of the country. It is, therefore, by exercise of the power given to the executive or as the case may be, the legislature is at liberty to evolve such policies. 4. An applicant has no vested right to have export or import licences in terms of the policies in force at the date of his making application. For obvious reasons, granting of licences depends upon the policy prevailing on the date of the grant of the licence or per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the decision rendered in the context of externment order issued by the Executive Authority under the Delhi Police Act, 1978. The doctrine of immunity as well as the principles of judicial review has been elicited by the Supreme Court in the following passage : "15. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (See State of U.P and others v. Renusagar Power Co. and others (AIR 1988 SC 1737). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work "Judicial Review of Administrative Action", 4th Edition at pages 285 - 287 states th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See Commissioner of Income-tax v. Mahindra and Mahindra Ltd. (AIR 1984 S.C. 1182). The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous and John Alder in their book "Applications for Judicial Review, Law and Practice" thus: "There is a general presumption against ousting the jurisdiction of the Courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however certain areas of governmental activity, national security being the paradigm, which the Courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the government's claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service this is doubtful. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unquestionable, especially, in the changing liberalized and Globalised Indian economy, the ratio laid down by the Hon'ble Apex Court in the said judgment cannot be made applicable to the facts and circumstances of the present case. 33. The Judgment in Union of India and others v. Asian Food Industries reported in 2006 (204) E.L.T. 8 (S.C.) = 2006 (13) SCC 542 relates to the Foreign Trade (Development and Regulation) Act, 1992. While considering the date of effect of commencement or amendment of the policy, the Supreme Court has held that by such amendment a vested or accrued right which has been given to a trader cannot be taken away. On the facts of the present case, inasmuch as the petitioner's case has not even fallen under the category of custody under customs authority while following the export procedures, there is no question of any accrued right vested with the petitioner. 34. Likewise, the judgment of the Supreme Court in Ashoka Smokeless Coal India (P) Limited and Others v. Union of India and Others reported in 2007 (2) SCC 640 relates to fixing of price regarding essential commodities. In the light of the nationalization of Coal under the Coking (C) Coal Mines (Nati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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