TaxTMI 
TaxTMI 
2019 (12) TMI 16
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....rectorate General of Foreign Trade ('DGFT'/'OP-1'); Director General, DGFT ('OP-2') and Indian Rare Earths Limited ('OP-3') alleging, violation of the provisions of Section 4 of the Act (hereinafter, Informant-1 and Informant-2 are collectively referred to as Informants and OP-1, OP-2 and OP-3 are collectively referred to as Opposite Parties/OPs). 2. As per the information, Informant-1 is a society registered under the Societies Registration Act, 1860, formed with the objective of protecting the beach mineral industry, particularly its members. It has been in existence to espouse the cause of miners engaged in mining and processing of beach sand minerals (BSMs) in the State of Tamil Nadu. Informant-2 is th....
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....n manufacture of refractories. Monazite, a thorium ore, is used for strategic purposes and for extracting rare earth components. 5. It is further stated that post-independence, under the Atomic Energy Act, 1948 (repealed and replaced by the Atomic Energy Act, 1962) the concept of 'Prescribed Substances' was introduced according to which Prescribed Substances, which included BSMs, could be used only for production or application of atomic energy or research. Further, prior to liberalisation, only two companies namely, OP-3 and Kerala Minerals and Metals Ltd., a state PSU of Government of Kerala, were allowed to mine and process BSMs. 6. Informants have averred subsequently, as per GOI Resolution dated 06.10.1998 issued by DAE, ....
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....aces it in a dominant position and skews the level playing field. 9. It is also submitted that along with the Notification, a Standard Operating Procedure (SOP) in respect of export of BSMs was also published by OP-1. Informants have alleged the following: i. SOP has onerous conditions such as due diligence of foreign buyer by OP-3 and end-user certification by private exporter; fixing of 3 per cent of Free on Board (FOB) value as commission payable to OP-3; sharing of commercial secrets and knowledge (including contract details entered with the foreign buyer, financial health, letter of creditworthiness from banks); indemnity in favour of OP-3; contact details and passport details of exporters; details of cases against director....
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....3. The Commission notes that the Informant is mainly aggrieved by the policy of OP-1, which has brought exports of BSMs under STE regime, and allegedly onerous terms of SOP for exporters. 14. In this regard, the Commission observes that STEs deal with export/import of products in pursuance of government policies in relation to products/industries considered to have strategic importance. The Commission also notes that BSMs, inter alia, have space, defence and atomic applications and have also been specified as Atomic Minerals under the provisions of the MMDR Act and Prescribed Substances under the provisions of the Atomic Energy Act, 1962. 15. The Commission observes that the impugned allegations arise from the policy formulation by OP....