TaxTMI 
TaxTMI 
2012 (1) TMI 204
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.... Though Maize, as an agricultural produce, is widely grown in India, one of its varieties i.e. popcorn is generally imported from United States of America and Argentina under the Customs Act, 1962 and Foreign Trade Policy under the Foreign Trade (Development and Regulation) Act, 1992. Petitioner states that popcorn, which is imported, as above, is of better quality and cheaper in value than the one domestically grown and in order to ensure that domestic production and market is not harmed, the Government of Indian under the Foreign Trade Policy has always permitted the import of popcorn for 'actual users' and not for 'trading'. It is not in dispute that as per the commitment of the Government of India, under the World Trade Organization obligations, four agricultural products were negotiated and India is committed to allow the Tariff Rate Quota (TRQ) for four items at concessional rate of customs duty viz. 1. Skimmed and whole milk powder. Milk food for babies etc. (Tariff Code No.0402.10 or 0402.21) 2. Maize (Corn) - other (Tariff Code No.1005.90) 3. Rape; Colza, Canola or Mustard Oil, other (Refined) (Tariff Code No.1514.19 & 1514.99) 4. Crude ....
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....tting the impleadment as well as merits of the contentions are discussed hereunder. The implead application, being WPMP.No.38566 of 2011 is accordingly ordered. 7. The bone of contention of the learned senior counsel for the petitioner is that the condition of 'actual user' as per the procedure prescribed by DGFT under notification dated 04.10.2002 continued to operate till the impugned notification was issued. In support thereof, he relies upon the various licenses for import issued to various importers in 2010, which contain the condition of actual user. He also points out that the form and the annexure required to be filled up by each importer also contains an undertaking on behalf of the importer that he satisfies the requirement of actual user. Learned senior counsel also submits that the condition of actual user has been imposed in greater public interest so as to protect the domestic producers and though the Government of India discharges its obligations under WTO by prescribing concessional customs duty on the said four food products, the condition of actual user continued to operate. The present impugned notification declaring that the said condition is no more mandator....
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....der WTO, which is evident from the customs notification No.21/2002 dated 01.03.2002. The said customs duty was further reduced to 0% vide customs notification No.9/2007 dated 25.01.2007 as per the negotiations under the WTO. Thus, the TRQ for maize (corn), which was at 5 Lakh tons per year at concessional rate of 15% of customs duty, was reduced to 0% in 2007 itself. It is also accepted that as per the DGFT public notice dated 04.10.2002, the procedure prescribed for availing of import under TRQ scheme was restricted to eligible State Trading Enterprises only on behalf of the actual users. It is, however, stated that Inter Ministerial Meeting was held on 29.04.2003 wherein the actual user condition was made not mandatory and instead the allotment was to be made on priority basis. It is stated that pursuant to the decisions in the said meeting another public notice No.7/2002-2007 dated 09.05.2003 was issued notifying that eligible State Trading Enterprises will avail the quota as per the request of the applicants. In order to clarify the matter beyond any pale of doubt the impugned public notice is issued by DGFT, apparently, as the prescribed form ANF 2B continued to show the actua....
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....is seriously affected by the interim order as well as the pendency of the writ petition. It is also contended that the decision of the Government of India reflected in the Foreign Trade Policy and the notification issued by DGFT from time to time clearly show that actual user condition, which was insisted upon in the initial public notice of 2002, stood withdrawn thereafter and the subsequent public notices from 2004 onwards did not contain the requirement of actual user. The public notices issued for the years 2004 to 2006 and 2010 have been placed on record to substantiate that the actual user condition, as was found in the public notice of 2002 is not found in the later notices after 2003. The decision of the Government of India on the policy of import, it is contended, is not justiciable. It is also contended that the quantity of imports being much below the quota prescribed, the policy of the Government of India can neither be said to be arbitrary nor it is against the domestic growers. It is pointed out that no such condition is found in post 2003 public notices issued by DGFT, but the petitioner has not questioned any of those notices. 15. In order to get over that part o....
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.... of goods and the purposes referred to for exercise of power are categorized under sub-section (2). Reliance is also placed upon sub-clause (g), (j) and (v) of sub-section (2) of Section 11 of the Customs Act viz. (g) the prevention of surplus of any agricultural product or products of fisheries; (j) the prevention of serious injury to domestic production of goods of any description and (v) any other purpose conducive to the interests of the general public. 18. Under the scheme of the Foreign Trade (Development and Regulation) Act, 1992 the Government of India notified the foreign trade policy for the years 2004-2009 (which is relevant for our purpose). The power of amendment to the policy is, undoubtedly, reserved with the Government of India alone as is made clear by Section 5 itself. Clauses 2.1, 2.4, 2.8 and 2.11 of the said policy are relevant for our purpose and are extracted hereunder. Exports and Imports free unless regulated 2.1 Exports and Imports shall be free, except in cases where they are regulated by the provisions of this Policy or any other law for the time being in force. The item wise export and import policy shall be, as specified in ITC(HS) published a....
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....shall be as specified under ITC (HS) publication and notified by DGFT, as amended from time to time. It is in pursuance of Section 6(2) read with clauses 2.1 and 2.4, referred to above, that the DGFT has to issue public notices from to time and it is made clear that such procedures may in the like manner i.e. through public notice, be amended from to time. The notification under the Customs Act conveying the decision of the Government of India was published under notification No.21/2002 - customs dated 01.03.2002 whereunder for tariff item No.1005.90 15% of standard rate of customs duty was notified under Sl.No.21 and for Sl.No.22 also relating to the same custom tariff No.1005.90 of goods other than those specified in SlNo.21 attracted standard customs duty at 50%. The aforesaid notification was amended by a further notification of the Central Government under notification No.42/2008 - customs dated 01.04.2008, prescribing duty against Sl.No.21 as Nil. As per the counter affidavit of respondents 2 and 4, 0% customs duty was provided under the Customs Act vide notification No.9/2007 dated 25.01.2007 but the copy of the said notification is not placed on record. Consequential decisi....
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....sides other usual conditions. As mentioned earlier, pages 72 to 76 of the writ petition contain various licenses issued by the office of the DGFT to various importers all of which contain the condition of actual user even in the year 2010. Learned senior counsel, therefore, submits that the theory propounded by respondents 2 to 4 and further supported by the seventh respondent that in the Inter Ministerial Meeting itself the condition of actual user was deleted, has no substance and is factually not tenable. 22. In my view, the policy of the Government of India under the Customs Act as well as the Foreign Trade (Development and Regulation) Act, notified in the customs notification and the foreign trade policy and the public notices thereafter issued by DGFT from time to time amply make it clear that all the decisions are that of the Government of India. Petitioner also accepts the same as is evident from paragraphs 21 and 22 of the affidavit as well as the prayer in the writ petition. It is, therefore, not open for the petitioner to contend that the impugned public notice is a decision of the DGFT and not that of the Government of India. Even otherwise under clause 2.1 of the Fo....
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.... policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government is satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay own new policy. The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilization of its finances in the public interest. It is equally entitled, therefore, to issue or withdraw or modify the export or import policy in accordance with the scheme evolved. We, therefore, hold that the petitioners have no vested or accrued right for the issuance of permits on the MEE or NQE, nor is the Government bound by its previous policy. It would be open to the Government to evolve the new schemes and the petitioners would get their legitimate expectations accomplished in accordance with either of the two schemes subject to their satisfying the conditions required in the scheme. The High Court, therefore, was....