2021 (1) TMI 524

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....cashew kernels. Subsequently, upon instructions of the second respondent, the third respondent had issued Trade Notice No.50/2019-20, dated 14.02.2020, wherein, the rigors introduced in Notification No.8/2015-20, dated 12.06.2019 are taken away. 2.2. It is the case of the petitioner that once a notification is issued under Section 3 of the FTDR Act read with Foreign Trade Policy, a Trade Notice cannot be issued to amend the rigor of the same. It is stated that originally there were no conditions prescribed for import of cashew kernels either broken or whole and the import was free subject to payment of customs duty alone. A Minimum Import Price (MIP) was introduced on cashew in 2013 by the respondents fixing the rate of Rs. 288/- per kg and Rs. 400/- per kg for broken and whole cashew kernels respectively. The said MIP was also applicable to Special Economic Zones (SEZs) and Export Oriented Units (EOUs) as well. 2.3. The African countries, where raw cashew is available in plenty, provide subsidy and incentives to the tune of 50% and above on export of their products and those countries started processing. As these products did not have an international market, they found their w....

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....ation and accordingly, the petitioner cannot challenge the same. 4. Heard both sides. 5. Before delving into the powers of the respondents in issuing the Notification or a Trade Notice, it would be useful to reproduce Section 3 of the FTDR Act, which provides for the power for making the provisions to import and export, as hereunder : "3. Powers to make provisions relating to imports and export- (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 speci....

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....nd EOUs as well. The African countries where, the raw cashew is available in plenty, started processing and providing subsidy and incentives for export of the said products. Hence, the cashews were imported to India and were re-exported, which does not involve much processing and also not involve job opportunity. The reexporters were enjoying all the export benefits that are available in the trade and the genuine processors in India were unable to compete. In fact, several of the cashew processing units were forced to be closed. This, in turn, also resulted in lower returns of cashew farmers as low priced cashew was otherwise available in the market. 9. The learned counsel for the petitioner would submit that a Trade Notice is one by which the Government informs the public at large and the same cannot be issued to amend the Notification issued in terms of Section 3 of the FTDR Act and therefore, the impugned Trade Notice has to be quashed. 9.1. In support of his contention, learned counsel for the petitioner relied on the following judgments : 9.2. In State of Bihar and Another V. J.A.C.Saldanha and others, (1980) 1 SCC 554, it has been held as follows : "17. ...... It was in....

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.... manner and in no other way. It is also settled in law, when the disputed questions of facts require evidence and a remedy has been provided, this court under Art. 226 should not venture to decide such disputed questions of facts. 9.5. The Hon'ble Supreme Court in Babu Verghese and Others V. Bar Council of Kerala, AIR 1999 SC 1281, has held thus : "31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor [(1875) 1 Ch D 426 : 45 LJCh 373] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [(1936) 63 IA 372 : AIR 1936 PC 253] who stated as under: "[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all." 9.5. A reading of the above decisions only would go to show that if statutorily a particular thing has to be done in a particular way, it shall be deemed to have prohibited being done in any other way. Though the Government is at liberty take a policy decision, it has to be done, as mandated under the relevant St....