TaxTMI 
TaxTMI 
2018 (10) TMI 1160
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....e Deputy Commissioner of Customs as also the Secretary, CIB; for whom arguments were addressed by Sri.K.M.Natarajan, Additional Solicitor General. The 1st respondent-writ petitioner/importer was represented by learned Senior Counsel Sri.Joseph Kodianthara. 2. The 1st respondent is engaged in the manufacture of PVC, for which process he imports EDC used as a raw material in the production. The import had been carried out for the last very many years and clearance is effected from the Port of entry by giving an undertaking that the goods would be used only for the manufacture of PVC, a non-insecticidal purpose exempted under Section 38 of the Insecticides Act. The undertaking would be cancelled only after the importer produces an end-use certificate issued by the Excise authorities and the Sales Tax authorities (now the Goods and Services Tax authorities). 3. The cause of action for the writ petition was a communication issued at Exhibit P11 requiring an import permit to be applied for and obtained from the CIB and RC. The requirement as evidenced from the communication at Exhibit P11 follows the decision of the RC, constituted under the Insecticides Act, which is produced at E....
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....secticides Act insofar as insecticides included under the Schedule of the Act, when imported for non-insecticidal purposes. 5. Maliakkal Industrial Enterprises was also noticed, wherein there was a specific restriction under the Foreign Trade Act insofar as import of Boric Acid (the subject of import in that case) was concerned. The appellants further contented before the learned Single Judge that all insecticides being included under EXIM Code 3808 of Chapter 29 of the Indian Trade Classification [ITC] brought out under the Foreign Trade Policy [FTP], a statutory document issued under Section 4 of the Foreign Trade Act, there is requirement for an import permit. The learned Single Judge negatived the said contention noticing that the Note under EXIM Code 3808 refers to insecticides, rodenticides and other products which are put up in forms or packings for retail sale or as preparations or articles. The importer in the present case, has not put up the imported substance in forms or packings for retail sale or as preparations or articles and the import specifically is for an industrial purpose. We need not dwell upon the said contention since there was no argument addressed befor....
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....complete address shall also be sought in the application proforma, which was approved in the 312th meeting of the Committee under Agenda Item No.9.5 (Annexure-VI). This application proforma, with source of import, and the new format for issuance of import permits shall come into force for the applications, received on or after October 01, 2012". As was noticed by the learned Single Judge, the decision taken as seen from the minutes of the Committee is only a prescription of a proforma in which import permits are to be issued for import of insecticides for non-insecticidal purposes. There was also a decision taken to obtain the source of import with complete address in the application proforma which also stood approved in the meeting of the Committee. We do not find any decision as such taken to insist an import permit for non-insecticidal purposes; which, in any event, the importer contends is beyond the scope of the powers conferred on the RC by the Insecticides Act. We, hence, do not see any requirement as such, to challenge the decision taken by the RC in its meeting produced at Exhibit P10. 8. The learned Additional Solicitor General then takes us to Section 111 of the Cu....
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....se ascertained; for which an import permit has been insisted by the RC. The RC, constituted under the Insecticides Act, as per the Insecticides Rules has the power to carry out the incidental or consequential matters necessary for carrying out the functions assigned to it under the Act or the rules. The RC's decision only provides a mechanism to examine the eligibility to exemption which is devised keeping in mind the object of the Act, is the compelling plea. 10. Emphasising the object of protection of human and animal life and with the intention only to avoid any risk to them, Maliakkal Industrial Enterprises is extensively read. The learned Additional Solicitor General specifically points out that the Division Bench of this Court had looked into the object of the Act and the need to ensure the safety of human beings and animals from the indiscriminate use of insecticides and has upheld the import permit insisted in the case of Boric Acid, which is also included under the Schedule of the Insecticides Act. Therein also the substance was imported for non-insecticidal purposes. It is urged that Courts would normally find out the intention of the legislature in interpreting a ....
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....nd use issued by the Central Excise authorities. The respondent has been scrupulously complying with the same and the said procedure is stipulated in a trade notice issued by the Customs authorities which has application across the board to all Ports of entry. Apart from this there is no other requirement and the Circular of the Central Board also approves the procedure and clarifies the exemption from registration or requirement of import permit under the Insecticides Act. As was noticed, the non-insecticidal purposes has been specifically exempted under the Insecticides Act and the provisions of the Act or the Rules would not have any application. 14. Even looking at the powers conferred on the CIB and RC, we are not convinced that such authorities created under the statute could have devised a measure to ensure the end use when there is no such power conferred on them under the statute or the Rules. Section 4 of the Insecticides Act directs the Central Government to constitute a Board to advise the Central Government and State Governments on technical matters arising out of the administration of the Act and carry out the other functions assigned to the Board or under the Act.....
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....ss of the source, to be disclosed in the application for such import permit. 16. There is absolutely no provision under the Act or prescription under the Rules for issuance of an import permit or an application in that respect wherein import is made of a substance, included under the Schedule to the Act, for non-insecticidal purpose. The mere prescription of a proforma for issuance of an import permit by the RC under the Insecticides Act cannot be termed to be a requirement under the statute. We are, hence, of the view that neither the Act nor the Rules provide for any import permit under the Insecticides Act for the purpose of import of insecticides included in the Schedule under the Act; when such import is for non-insecticidal purposes. The exemption under Section 38 takes any goods imported for non-insecticidal purposes even if included in the Schedule to the Act, out of the coverage of the Act and Rules prescribed thereunder. In the context of such finding, we do not think that the decisions on purposive interpretation has to be looked at. 17. The decision of the Constitution Bench of the Hon'ble Supreme Court in Commissioner of Customs (Import), Mumbai v. M/s.Dilip ....
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....ere a notification was issued by the Central Government under the Foreign Trade Act insisting on an import permit from the RC constituted under the Insecticides Act. The Division Bench held that when non-insecticidal purposes were exempted under the Insecticides Act, such aspects were not controlled by that enactment and when no legislation controls the subject, then, the executive Government could exercise its powers under Article 73 of the Constitution of India, though there was no such contention for the appellants in the said case. Therein, the requirement was by a notification issued under the Foreign Trade Act, which was a "command of dedicated legislation" (sic) under the Foreign Trade Act. It was also held that it was perfectly legitimate and competent for the Government to have entrusted the RC constituted under the Insecticides Act for the purpose of granting import permit to Boric Acid, which was imported for non-insecticidal purposes; since the RC under the Insecticides Act is an expert committee with the know-how of the composition of the substance and its deleterious effects. The requirement for an import permit in Maliakkal Industrial Enterprises was upheld only in t....