TaxTMI 
TaxTMI 
2019 (1) TMI 337
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....has challenged Notification No.19/2015-2020 dated 5.8.2017, Notification No.22/2015-2020 dated 21.8.2017 and Notification No.6/2015-2020 dated 4.5.2018 issued by the second respondent Director General of Foreign Trade as well as Trade Notice No.19/2018 dated 25.10.2017 and Trade Notice No.6/2018-19 dated 11.5.2017 and seek permission to clear 15000 MT of Green Moong (3,00,000 total bags) imported from Gold Key Food Stuff Trading LIC Deira, Dubai, UAE in terms of Proforma Invoice dated 9.4.2018 being No.305/2018 and also seek permission to clear 40,000 MT Yellow Peas (total 800160 bags) and 18,500 MT Pigeon Peas (total 3,70,000 bags) imported from Shafaf Foodstuff Trading F.Z.E. Abu Dhabhi in terms of Sales Contract No.YP/18-19/110 dated 11.4.2018 and Sales Contract No.YP/18-19/109 dated 10.4.2018. 3. Since the facts in all these petitions are more or less similar, reference is made to the facts as appearing in Special Civil Application No.17573 of 2018. 4. The petitioners have entered into contracts for supply of the items mentioned for such contracts being Pigeon Peas (Toor Dal), etc. By Notification No.19/2015-2020 dated 5th August, 2017, the import export policy of items o....
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....t have the jurisdiction to issue such notifications affecting the Import Export policy. It is further the case of the petitioners that in view of the observations made in the above order, some of the notifications converting the imported items from "free" to "restricted" have been withdrawn by the DGFT by issuing Notification No.31/15-2020 dated 29.8.2018. 6. It is the case of the petitioners that the impugned Notification No.19/2015-2020 dated 5.8.2017 (Annexure-C to the petition) has also been issued by the second respondent - Director General of Foreign Trade converting certain items from "free" to "restricted", who has no authority to issue such notification, and that in case such notification is not withdrawn, the petitioners would have to face huge financial losses. It is in the aforesaid background that the petitioners have filed the present petitions seeking the reliefs noted hereinabove. 7. Mr. Prashant Mankad, Mr. Ameer Kadri, and Mr. Vicky Mehta, learned advocates for the respective petitioners invited the attention of the court to the impugned notifications to point out that the same have been issued by the Director General of Foreign Trade. Reference was made to ....
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....egal and without authority of law and hence, the impugned notifications deserve to be stayed. 7.2 Next it was submitted that the object of the statute is to increase the imports in the larger public interest and the Government is supposed to take such steps which would increase the imports. According to the learned advocates, the Union of India is putting the businesses of the petitioners in a precarious position by first permitting free import of items in which the petitioners deal with, and thereafter suddenly issuing notifications restricting such items causing serious prejudice to the petitioners and similarly situated person. It was further submitted that in case of certain item, the notification restricting import of certain items came to be issued and was thereafter withdrawn for a very short period of about twenty four hours. It is alleged that such window of twenty four hours has been provided to facilitate some big import players to import their goods and thereafter, restrictions have been re-imposed by reissuing the very notification. Two such companies are Agro Processing India Private Limited and Shah Nanji Nagji Export Private Limited. It was submitted that thus, t....
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....entication of orders and other instruments made and executed in the name of the President in such manner as may be specified in the rules. Accordingly, the Government of India, Authentication (Orders and other Instruments) Rules, 2002 (hereinafter referred to as the "Authentication Rules") have been framed in exercise of the powers conferred by clause (2) of article 77 of the Constitution whereby the DGFT is appointed as a signing/authenticating authority on behalf of the Central Government in case of orders and other instruments relating to the Directorate General of Foreign Trade. It was submitted that the decision to issue the impugned notification has been taken by the Central Government and the DGFT has only authenticated the notification on behalf of the Central Government in accordance with the Authentication Rules. It was submitted that, therefore, the main fundamental basis on which the impugned notification has been challenged being misconceived, the petitions are devoid of any merit and deserve to be dismissed. 9. In rejoinder, the learned advocates for the petitioners submitted that the DGFT is an independent authority appointed under section 6 of the Foreign Trade (....
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....s which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or the Order or both Houses agree that the rule or the Order should not be made, the rule or the Order as the case may be, shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or the Order. It was submitted that the provisions of sub-section (3) of section 19 have not been complied with insofar as the Notification dated 16.2.2002 and the Order dated 24.3.1993 are concerned and, hence, neither of the documents would have any legal effect. 9.3 It was, accordingly, urged that the contention that the DGFT has merely authenticated the order does not merit acceptance and that the petitions deserve consideration and interim relief as prayed for deserves to be granted. 10. The Notification No.19/2015-2020 dated 5.8.2017 as well as other notifications have been....
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....n 3 of the Act read with paragraphs 1.02 and 2.01 of the Act as amended from time to time, has amended the import policy of items of Chapter 7 of ITC(HS)2017, Schedule-1 (Import Policy) as provided thereunder. On a plain reading of the notification, it is clear that powers under section 3 of the Act have been exercised by the Central Government, and it is the Central Government which has amended the import policy. At the same time it can also be seen that such amendment bears the signature of the Director General of Foreign Trade, which is the root cause of the dispute raised in these petitions. On behalf of the respondents it has been contended that the import policy has been amended by the Central Government in exercise of powers under section 3 of the Act and that the DGFT has only authenticated the same in accordance with the Authentication Rules. In support of such submission, a notification dated 16th February, 2002 of the Ministry of Home Affairs whereby an order made by the President on 16.01.2002 has been published for general information has been placed on record, whereby in exercise of powers conferred under clause (2) of Article 77 of the Constitution, rules called the ....
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....de by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. The notification dated 16.2.2002 publishes the Authentication Rules which have been framed in exercise of powers conferred by clause (2) of article 77 of the Constitution, which provides for execution of orders and other instruments made in the name of the President. The Authentication Rules do not envisage the authentication of only administrative orders but of all executive orders of the Government of India. The contention that the authentication by the DGFT can be only in respect of administrative orders, is, therefore, not in consonance with the provisions of clause (2) of article 77 of the Constitution. 14. Insofar as reliance placed upon the interim order passed by the Madras High Court referred to hereinabove whereby the impugned notification has been stayed is concerned, it appears that since the order was passed ex parte, the Order made by the President in exercise of powers conferred under clause (2) of the Constitution of India whereby powers of authentication of....
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.... "(i) Laying without further procedure, (ii) Laying subject to negative resolution, (iii) Laying subject to affirmative resolution. (i) Simple laying.-The most obvious example is in Section 10(2) of the 1946 Act. In earlier days, before the idea of laying in draft had been introduced, there was a provision for laying rules etc. for a period during which time they were not in operation and could be thrown out without ever having come into operation (compare Merchant Shipping Act, 1894, Section 417; Inebriates Act, 1898, Section 21) but this is not used now. (ii) Negative resolution.-Instruments so laid have immediate operative effect but are subject to annulment within forty days without prejudice to a new instrument being made. Thephraseology generally used is "subject to annulment in pursuance of a resolution of either House of Parliament". This is by far the commonest form of laying. It acts mostly as a deterrent and sometimes forces a Minister (in Sir Cecil Carr's phrase) to "buy off opposition" by promising some modification. (iii) Affirmative resolution.-The phraseology here is normally no order shall be made unless a draft....
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....ay be neglected without prejudice to the effect of the rules are answered by saying that "each case must depend on its own circumstances or the wording of the statute under which the rules are made". In the instant case, it would be noticed that sub- section (6) of Section 3 of the Act merely provides that every order made under Section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made. It does not provide that it shall be subject to the negative or the affirmative resolution by either House of Parliament. It also does not provide that it shall be open to the Parliament to approve or disapprove the order made under Section 3 of the Act. It does not even say that it shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide. It does not even specify the period for which the order is to be laid before both Houses of Parliament nor does it provide any penalty for non-observance of or non-compliance with the direction as to the laying of the order before both Houses of Parliament. It would also be noticed that ....
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....d not be the intention of the Legislature that the laying of the rules before Parliament should be made a condition precedent to their acquiring validity and that they should not take effect until they are laid before and approved by Parliament. If the Legislature had intended the same thing as in Section 4, that the rules should not take effect until they had the sanction of the Parliament, it would have expressly said so by employing negative language." "24. In Jan Mohammad Noor Mohammad Bagban v. State of Gujarat, AIR 1966 SC 385, where it was urged by the petitioner that the rules framed by the Provincial Government in 1941 in exercise of the powers conferred on it under Section 26(1) of the Bombay Agricultural Produce Markets Act (22 of 1939) had no legal validity as they were not laid before each of the Houses of the Provincial Legislature at the session thereof next following as provided by sub-section (5) of Section 26 of the Act, this Court rejected the contention and upheld the validity of the said rules. The following observations made in that case by Shah, J. (as he then was) on behalf of the Constitution Bench are opposite: "The rules under Act 22 of ....
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....t, as soon as may be, after it is made. It is significant that the Order is valid and effective from the date it is duly promulgated. Even the limit or period within which it must be placed before the Parliament has not been specified. It is, therefore, not possible to hold that sub-section (6) of Section 3 of the Essential Commodities Act is mandatory. If the Legislature intended that in order to provide an adequate safeguard it was necessary to make the said provision mandatory it could have done so in express words. We are, therefore, of the opinion that the Order cannot be considered as invalid merely because the State was not able to put on record proof of the fact that the Order was laid before both the Houses of Parliament." 27. In Mathura Prasad Yadava v. Inspector General, Railway Protection Force, Railway Board, New Delhi, (1974) 19 MPLJ 373, where it was contended that Regulation 14 of the Railway Protection Force Regulations, 1966 made under Section 21 of the Railway Protection Force Act (23 of 1957) was invalid as it was not laid before both Houses of Parliament as required by sub-section (3) of Section 21 of the Act, it was held: "What then is the co....