TaxTMI 
TaxTMI 
2019 (5) TMI 673
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....28039, 28080, 28082, 28089, 28100, 28119, 28127, 28135, 28152, 28157, 28160, 28168, 28171, 28177, 28178, 28184, 28198, 28258, 28355, 28373, 28392, 28402, 28413, 28418, 28429, 28437, 28448, 28453, 28471, 28510, 28505, 28597, 28603, 28614, 28646, 28653, 28674, 28679, 28685, 28686, 28721, 28724, 28803, 28819, 28912, 28931, 28942, 29270, 29279, 29649, 29810, 29817, 29820, 29824, 29828, 29830, 29833, 29837, 29857, 29863, 29988, 29993, 30001, 30005, 30013, 30153, 30161, 30228, 30314, 30493, 30588, 31447, 31456, 31464, 32134, 32153, 32573, 32956, 32958, 33349, 33362, 33390, 33413, 33593, 33596, 33602, 33604, 33605, 33609 of 2018 and 364, 806, 812, 819, 1296, 1421, 1448, 1450, 1453, 1454, 1472, 1473 and 2107 of 2019 and connected W.M.Ps Mrs. Justice Pushpa Sathyanarayana For the Petitioner : Mr.Vijay Narayan, Senior Counsel for Mr.B.Sathish Sundar For the Respondents : Mr.G.Rajagopalan, Additional Solicitor General of India assisted by Mr.J.Madhanagopal Rao, Senior Panel Counsel, Ms.Aparna Nandakumar, CGSC COMMON ORDER Since the prayer of the petitioners in these writ petitions is to quash the notifications and the consequential trade notices issued either by the Director Ge....
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.... last date for such registration was fixed at 5.00 p.m. on 31.10.2017. 2.5. The first respondent issued Notification No.6/2015-2020 on 04.05.2018 seeking to partially modify the Notification No.22/2015- 2020, dated 21.08.2017 to the effect that the import of Urad and Moong Dal shall be subject to an annual (fiscal year) limit of 1.5 lakh MT each, totalling to 3 lakh MT. The said notification was also followed by the Trade Notice No.6/2018-2019, dated 11.05.2018 seeking applications from the millers/refiners for import of 2 lakhs MT of Pigeon Peas (Toor Dal) and 1.5 lakh MT each for Urad and Moong dals. This measure was to ensure that the total quota to be imported should not exceed the prescribed limit. 2.6. By virtue of the above notifications, the emphasis laid in these writ petitions is that the policy of the respondents changed the categorisation from 'free' to 'restricted' trade with regard to the products and on the conditions mentioned in the notifications. 2.7. With respect to Peas also, the office of the first respondent issued a Notification No.04/2015-2020, dated 25.04.2018 seeking to amend the said import policy under Chapter 7 of the ITC (HS) 2017, Schedule....
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.... (HS) Schedule - I (Import Policy) as under: Exim Code Item Description Existing Policy Existing Policy condition Revised Imort Policy Revised Policy condition 0713 1000 Peas (Pisum sativum) Free - Restricted Restricted for the period from 01st April to 30^th June, 2018 and subject to Policy Condition 4 of this Chapter Policy Condition 4: During the period from 01st April to 30th June, 2018 total quantity of one lakh MT of yellow peas minus the quantity already imported from 01.04.2018 till date will be allowed against license as per procedure to be notified by DGFT. "Already Imported" will include shipment already arrived from 01.04.2018 till 25.04.2018 and those shipments backed by irrevocable Commercial Letter of Credit (ICLC) and Advance Payment made through Banking Channel before 25.04.2018 Both these categories will be required to be registered with Jurisdictional Regional Authority as per Para 1.05 of Foreign Trade Policy, 2015-20. 2. Effect of this Notification: Import Policy of Yellow Peas under Exim Code 0713 1000 is revised from free to 'restricted' for period of three month only. Sd/- (Alok Vaardhan Ch....
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.... 24.4.2018, no registration with DGFT is required for shipments with B/L prior to 25th April, 2018 (i.e 1.4.2018 - 24.4.2018), as the Notification No. 4 restricting import of peas was issued only on 25.4.2018. In this regard, please refer to Notification No. 5 dated 25.4.2018 wherein the revised Para 1.05 of FTP (2015-20) clarifies that whenever Government brings out a policy change of a particular item, the change will be applicable prospectively, from the date of Notification unless otherwise provided for. Sd/- (S.P Roy) Jt.DGFT" "TRADE NOTICE NO.12/2018 Dated 18th May 2018 * * * * Subject : Implementation of Notification No.4, dated 25.4.2018-reg. Reference is invited to Notificated No.4 dated 25.4.2018 amending the import policy of Peas under Exim Code 0713 1000, Chapter 7 of the ITC (HS) 2017 from 'Free' to 'Restricted'. 2. In the said Notification, inter alia, the following was provided for transitional arrangement. "Already Imported" will include shipment already arrived from 01.04.2018 till 25.04.2018 and those shipments backed by Irrevocable Commercial Letter of Credit (ICLC) and Advance P....
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....y of a particular item is governed by the policy as on the date of import/export. The date of import/ export is defined in para 2.17 of HBP, 2015-20. Bill of Lading and Shipping Bill are the key documents for deciding the date of import and export respectively. In case of change of policy from free' to 'restricted/prohibited/state trading' or 'otherwise regulated', the import/export already made before the date of such regulation/restriction will not be affected. However the import through High Sea sales will not be covered under this facility. Further, the import/export on or after the date of such regulation/restriction will be allowed for importer/exporter has a commitment through Irrevocable Commercial Letter of Credit (ICLC) before the date of imposition of such restriction/ regulation and shall be limited to the balance quantity, value and period available in the ICLC. For operationalising such ICLC, the applicant shall have to register the ICLC with jurisdictional RA against computerized receipt within 15 days of imposition of any such restriction/regulation. Whenever, Government brings out a policy change of a particular item, the change will be applicab....
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....he above notifications and trade notices clearly indicate that they are issued under Section 3 of the FTDR Act, and the purpose of the said notifications is to revise/amend the import policy. When the statute specifically empowers only the Central Government to issue such notifications and also to amend the policy, the same cannot be delegated to the respondents in terms of provisions of Section 6(3) of FTDR Act. 3.5. The petitioners challenge the said Notifications and Trade Notices as without jurisdiction and the same cannot be implemented and they deserve to be quashed in entirety. 4. The first and second respondents resisted the writ petitions contending, inter alia, that the second respondent is a regulator of the Foreign Trade Policy with the main objective of promoting India's exports. The decision regarding the said regulation is taken in consultation with the concerned administrative Ministry/Department of the Central Government only. According to the respondents, their role is restricted to the extent of issuing the notification as per the decision of the Government of India. The implementation of the notification is ensured by the customs authorities and that t....
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....ign Trade V. Kanak Exports, 2015 (326) 26 (SC), wherein, it was held as follows : "..... 94. From the aforesaid explanation, we take it that the Public Notice dated 28-1-2004 was published in the Gazette of India in accordance with the requirement of law. The question, however, is as to whether by this public notice, DGFT was only carrying out the EXIM Policy or this public notice amounted to change in the said EXIM Policy. It is crystal clear that the public notice alters the provisions of the EXIM Policy. It would, therefore, amount to amending the EXIM Policy, whether clarificatory or otherwise. There may be a valid justification and rational for exclusion of four items contained therein, as pleaded by the Union. However, it had to be done in accordance with law. When DGFT had no power in this behalf, he could not have excluded such items from the purview of the EXIM Policy by means of public notice. The power of DGFT is only to be exercised for procedural purposes and both the High Courts have rightly remarked that Para 3.2.6 inserted by the public notice goes beyond the procedural conditions. 95. In fact, the Government itself realised the same, name....
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....nd that the respondent 1 had signed and released the same only in its capacity as Ex-officio Additional Secretary to the Government of India. The said position, being that the DGFT is the Exofficio Additional Secretary to the Government of India, is not disputed by the learned counsel for the petitioners. It is categorically contended that the decision to issue the impugned notifications was taken in the wisdom of the Union Ministry and certainly not by respondents 1 and 2. 5.4. The notifications in these cases have been issued, in exercise of the statutory powers conferred by Section 3 of the FTDR Act. Therefore, an amendment to the notification has to be in a like manner. Sub-section (1) says that 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. Sub-section (2) empowers the Central Government to make provision for prohibiting, restricting or otherwise regulating in all cases or in specific 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. Su....
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....nd other pulses were imposed taking into account the huge domestic production resulting in price falling below the minimum support price. The policy decision is, thus, taken subject to the prevailing conditions as mentioned above. 6.3. As the Government found that for the current fiscal year, the situation would be identical, as mentioned above, the quota was placed on import of pulses. While modifying the import policy of Peas by notification, the condition is already spelt out. The powers of the Central Government to issue such notification are found in Section 3 of the FTDR Act read with para 1.02 of FTP 2015-2020 as amended from time to time. The Central Government through Ministry of Commerce and Industry, Department of Commerce, DGFT amended the import policy of items of Chapter 7 of ITC (HS) 2017 conditionally. 7. The learned counsel Mr.Hari Radhakrishnan appearing for some of the petitioners (in W.P.Nos.16934, 16935, 27710, 28721, 28724 and 30493 of 2018) referred to the Foreign Trade Policy Para 1.02 of Chapter 1A. The said provision reads as follows : "1.02 Amendment to FTP. "Central Government, in exercise of powers conferred by Section 5 of FTDR ....
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....of imposition of such restriction and it shall be restricted to the balance value and quantity available and time period of such Irrevocable Commercial Letter of Credit. 7.4. From the above provisions of the FTP, it is clear that the condition, which is stipulating certain measures subsequently and even such restriction placed on the imports are otherwise stated to be free. 7.5. The expression "unless otherwise stipulated" appearing in clause (b) of para 1.05 makes it abundantly clear that it is not because there is a blanket provision made in para 1.05 that the restriction or regulation notwithstanding the export or import will ordinarily be permitted. If otherwise there is a stipulation, then these above words will not be of any assistance. Therefore, so far as the impugned Notifications are concerned, it is evident that they are issued in exercise of the powers conferred by section 3. The FTP, as amended from time to time, always contains stipulations with regard to the import. 8. This is not the case where we should allow any principle of law to be canvassed to the effect that the notifications issued under the exercise of statutory powers have to be amended in a like ....