TaxTMI 
TaxTMI 
2018 (10) TMI 337
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....opment and Regulation) Act, 1992 and has submitted that Section 6(3) of the Act of 1992 does not permit a Director General of Foreign Trade to issue any notification in exercise of powers under Section 3 or 5 of the Act of 1992. The impugned notification states that, the same has been issued in exercise of powers conferred under Section 3 of the Act of 1992. He has referred to Section 19(3) of the Act of 1992 and has submitted that, the impugned notification has not been laid before the Parliament in terms of Section 19(3) of the Act of 1992 till date. At least, nothing has been placed on record to suggest otherwise. Therefore, even on that score, the impugned notification is non est in the eye of law. Learned Senior Advocate for the petitioner has submitted that, the petitioner is engaged in the business of publication of newspaper. Such business requires newsprint. Newsprint is imported. The petitioner does not require large quantity of newsprints for the quantum of business of the petitioner. The petitioner places orders on import houses for newsprints. Other newspaper publications not having large volume of business also places orders for newsprints on import houses, who make....
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....gned notification should be read to be one as an exercise of power under Section 5 of the Act of 1992. Reading the impugned notification as such, there is no requirement for the notification being placed before the Parliament in terms of Section 19(3) of the Act of 1992. He has submitted that, the time period prescribed in Section 19(3) of the Act of 1992 is directory in nature. He has relied upon 2011 Volume 9 Supreme Court Cases page 1 (K.T. Plantation Private Limited & Anr. v. State of Karnataka) and 2012 Volume 4 Supreme Court Cases page 578 (Accountant General, State of Madhya Pradesh v. S.K. Dubey & Anr.) in support of such contentions. Learned Additional Solicitor General has submitted that, by the impugned notification, the Central Government has sought to implement a change in the policy under Section 5 of the Act of 1992. The Director General of Foreign Trade is entitled to issue such notification as powers under Section 5 have been exercised in the present case. Therefore, there is no requirement for such notification to be placed before the Parliament. Orders issued under Section 5 of the Act of 1992 need not be placed before the Parliament under Section 19(3) of the ....
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.... 2.01 of the Foreign Trade Policy, 2015-20 as amended from time to time. The relevant provisions of the Act of 1992 for the purpose of consideration of the present writ petition are as follows:- "2(h). "Order" means any Order made by the Central Government under section 3; 3. Powers to make provisions relating to imports and exports. - (1) The Central Government may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. (2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods or services or technology: Provided that the provisions of this sub-section shall be applicable, in case of import or export of services or technology, only when the service or technology provider is availing benefits under the foreign trade policy or is dealing with specified services or specified technologies. (3) All goods to which any Order under sub-secti....
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....fiscal benefits may be granted or renewed under sub-section (1) of section 9; (c) the class or classes of goods (including the goods connected with service or technology) for which a licence, certificate, scrip or any instrument bestowing financial or fiscal benefits may be granted under sub-section (2) of section 9; (d) the form in which and the terms, conditions and restrictions subject to which licence, certificate, scrip or any instrument bestowing financial or fiscal benefits may be granted under sub-section (3) of section 9; (e) the conditions subject to which a licence, certificate, scrip or any instrument bestowing financial or fiscal benefits may be suspended or cancelled under sub-section (4) of section 9; 3 (ea) the matter in which goods the import of which shall be subject to quantitative restrictions, may be identified and the manner in which the causes of serious injury or causes of threat of serious injury in relation to such goods may be determined under sub-section (3) of section 9A; (f) the premises, goods (including the goods connected with the service or technology), documents, things and conveyances in respect of which and the requirements and conditi....
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....pect of import or export of services and technology the provisions of Section 3(2) will apply only when the service or technology provider avails benefits under the Foreign Trade Policy or deals with specified services or specified technologies. The power of the Central Government to prohibit, restrict and otherwise regulate the import or export of goods or services or technology has to read along with its powers under Section 11 of the Customs Act, 1962. This appears from Section 3(3) of the Act of 1992. Section 5 of the Act of 1992 allows the Central Government to formulate and amend the Foreign Trade Policy from time to time. Notwithstanding the Central Government formulating and assuming a Foreign Trade Policy and even amending it subsequently, it can, under Section 3 of the Act of 1992, make provision for prohibiting, restricting or otherwise regulating import or export of goods or services or technology. It can do so if it is of the opinion that, the purposes enumerated in Section 11 of the Customs Act, 1962 stands satisfied so to do. Section 6 of the Act of 1992 deals with the appointment of the Director General of Foreign Trade and its functions. Sub-section 3 of Section 6....
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....hing is placed on record to suggest that, the Order dated March 24, 1993 was published in the Official Gazette. In absence of a publication in the Official Gazette, the Order dated March 24, 1993 cannot be said to be one under Section 6(3) of the Act of 1992. It has been contended on behalf of the respondents that, the impugned Order although speaks of invocation of Section 3 of the Act of 1992, in effect, it is an exercise of powers under Section 5 of the Act of 1992. Section 5 of the Act of 1992 allows the Central Government to formulate the foreign trade policy and to amend it. Section 3 of the Act of 1992 allows the Central Government to make provisions for prohibiting, restricting or otherwise regulating import or export of goods or services or technology. In the present case, by the impugned notification, a foreign trade policy has been sought to be amended. The Central Government could have done so in exercise of powers under Section 5 of the Act of 1992. It has however chosen to involve the provisions of Section 3 of the Act of 1992, as appearing in the impugned notification. P.C. Wadhwa (supra) has considered the provisions of All India Services (Confidential Rolls) Ru....