2024 (10) TMI 1767 - HC - Customs

Pre-import conditions under foreign trade policy must be notified by the Ministry; DGFT notifications and Actual User Conditions follow that notification and SION review requires mandatory data calls.

Preimport conditions for inputs under Appendix 4J can be imposed only by the Ministry of Commerce and Industry through a notification; DGFT may issue ... Judicial non-interference in fiscal and policy matters - mandamus cannot direct statutory authorities to act contrary to prescribed procedure - pre-import conditions under foreign trade policy require central government notification - DGFT's power to notify pre-import conditions is subordinate to ministry's notification - Actual User Condition requires notification in the Official Gazette - mandatory nature of Norms Committee's data call for SION review - public interest litigation maintainability and bonafides of petitioner - HELD THAT:- We are of the opinion that the pre-import condition for inputs under Chapter 4 can be issued only by the Ministry of Commerce and Industry subjecting the import items under appendix 4-J to pre-import condition. The expression “may” occurring under clause 4.13 has to be read in consonance with the powers of the Union of India to issue a Notification and the powers of DGFT shall remain confined to issue a Notification under clause 4.13 only in tune with the Notification, if any, issued by the respondent no.1 imposing pre-import conditions for inputs. As to imposition of Actual User Condition by way of public notice, this is well remembered that such an exercise shall also be touching upon the policy decision and, therefore, can be notified only through a Notification in the official Gazette. The requirement regarding production of data and information would be the foundation for taking a decision for review of SIONs and no exception can be taken to such a requirement of calling for data and information by the Norms Committee and the respondent no.2 cannot review SIONs unilaterally without calling the data and information. Therefore, the prayer made at clause (ii) of the present writ petition that the provisions under paragraph no.4.25 of the Hand Book of Procedure should be declared not mandatory is liable to be rejected. The petitioner who claims that he made proper research has failed to produce any material on record except the FTP (2023) and the Hand Book of Procedure (2023) which according to the PIL-petitioner himself are easily available on the website of the respondent no.2. There is no public interest involved in this matter and, in fact, the prayers made in the writ petition if granted would go against the public interest and any such exercise if undertaken by this Court would be beyond the jurisdiction and powers of the writ Court. The PIL-petitioner has also failed to establish his bonafide. There is no material on record to suggest that the petitioner qualifies as a PIL-petitioner as laid down in the Rajasthan High Court Rules which have been framed in compliance of the judgment in “State of Uttaranchal v. Balwant Singh Chaufal & Ors.” [2010 (1) TMI 1095 - SUPREME COURT]. Writ Petition is dismissed. Issues: (i) Whether the Court can direct the Union of India to empower/authorize the DGFT to impose pre-import and Actual User conditions by way of public notice under Chapter 4 of the Foreign Trade Policy, 2023; (ii) Whether paragraph 4.25 of the Hand Book of Procedure is mandatory and whether the Norms Committee is bound to call for and examine data from trade before reviewing Standard Input Output Norms (SIONs).Issue (i): Whether the writ court can issue a mandamus directing the Union to empower DGFT to impose pre-import and Actual User conditions by public notice under Chapter 4 of the FTP.Analysis: The FTP and Hand Book of Procedure operate within the statutory framework of the FTDR Act, 1992. Clause 4.13 contemplates pre-import conditions subject to a Notification by the Ministry of Commerce and Industry; the power to impose such conditions and to notify Actual User Conditions engages policy and fiscal considerations. Where statute or policy prescribes a particular procedure or prescribes the form of notification, the authorities must act within that statutory scheme and courts must refrain from directing policy actions or requiring statutory authorities to act contrary to the prescribed procedure.Conclusion: In favour of Respondent.Issue (ii): Whether paragraph 4.25 of the Hand Book of Procedure is mandatory and whether the Norms Committee can review SIONs without calling for production of data and information.Analysis: Paragraph 4.25 requires exporters to submit revised data in ANF 4B and contemplates the Norms Committee calling for production of production and consumption data as the foundation for reviewing SIONs. The requirement to call for and examine data is integral to the prescribed review mechanism; unilateral review by DGFT without following the procedure would be inconsistent with the Hand Book and the statutory scheme.Conclusion: In favour of Respondent.Final Conclusion: The writ petition seeking court-directed policy action and a declaration that the procedural requirement in paragraph 4.25 is directory is not maintainable; the Court declines to interfere with policy and procedures laid down under the FTDR Act, 1992 and the FTP/Hand Book of Procedure.Ratio Decidendi: Courts will not direct policy-making or substitute their judgment for statutory procedures; where a statute or policy instrument prescribes a procedure for exercise of powers, authorities must follow that procedure and judicial mandamus to compel policy action is inappropriate.