2022 (11) TMI 707

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....vision Bench of the Calcutta High Court in upholding the power of the Director General of Foreign Trade in issuing notification for fixation of the minimum price for importation of betel nuts? ii) Whether the order of the Learned Tribunal have made the provisions of the Foreign Trade (Development and Regulation) Act, 1992 and the authority of the Central Government to regulate the importation of betel nuts otiose resulting in creating a precedence by which the Central Government shall not have the power to regulate and/or control the importation of any item, which might hamper the interest of the domestic growers? iii) Whether the Learned Tribunal has come to a perverse finding by not taking into consideration the power and competence of the DGFT to issue notification restricting the importation of betel nuts below the CIF value fixed by the DGFT and also failed to consider that the subject goods becomes liable for confiscation if the same is imported below the CIF value by the DGFT? iv) Whether the Learned Tribunal failed to appreciate that the tariff value fixed by the importer and duty paid thereunder is not at all applicable in the facts and circumsta....

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.... to formulate the form of regulation under the provisions of the aforesaid Foreign Trade (Development and Regulation) Act, 1992. The question for consideration was whether the revision effected by the impugned notification dated 13th May, 2013 from Rs.75/- to Rs.110/- was valid in law. We are inclined to think that if the Central Government was authorised to fix the value at Rs.75/- then they were also authorised to revise it. Power to fix a rate without any power to revise the same does not amount to any power, to fix the rates, any more than there can be a power to appoint without a corresponding power to dismiss. The leaned Trial Court has held "the DGFT functions as a limb of the Central Government and not as a delegatee and mere non-mentioning of the specific source of power does not invalidate the entire executive action." Having done so it could not have been held that the impugned notification was not an act of the Central Government under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992. Reliance placed by the learned Trial Court upon Paragraph 2.6 of the Foreign Trade policy, quoted above, is altogether misplaced for the simple reason that the impugne....

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.... or licence shall be necessary or required except as may be required under the FTDR Act, rules or orders made thereunder. The expression 'order', as per clause (h) to Section (2) of the FTA means any Order made by the Central Government under Section 3. It is, therefore, clear to us that there is no violation of Section 3 of the FTDR Act in the issuance of the impugned notifications or orders, which are intra vires and not ultra vires. 66. We have already reproduced and quoted Article XI31 of the GATT-1994 and have to say that the same has not been statutorily made a subject of 'act of transformation' and incorporated in the domestic legislation, i.e. the FTDR Act. The FTDR Act does not legislate and transform Article XI of the GATT-1994. As noticed above, Section 3 of the FTDR Act empowers and authorises the Central Government, i.e. the Union of India to frame policy, rules or regulations for import or export of goods. The policy is framed under Section 5 of the Act, which reads as under: "5. Foreign Trade Policy. - The Central Government may, from time to time, formulate and announce, by notification in the Official Gazette, the foreign trade policy and may also....

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....the impugned notifications and the trade notices and reject the challenge made by the importers. The imports, if any, made relying on interim order(s) would be held to be contrary to the notifications and the trades notices issued under the FTDR Act and would be so dealt with under the provisions of the Customs Act 1962. The Writ Petitions subject matter of the Transfer Petitions, subject to E above (What is not decided) are dismissed. Writ Petitions filed by the intervenors before the respective High Courts shall stand dismissed in terms of this decision. Pending application(s), if any, also stand disposed of in the above terms. No order as to costs." The Hon'ble Supreme Court in Union of India and Others vs. Raj Grow Impex LLP and Others, 2021 SCC Online SC 429 while considering the effect of the notification issued by the Central Government under the FTDR Act and also consequential Trade notices issued by the DGFT held as follows: "178. It needs hardly any elaboration to find that the prohibition involved in the present matters, of not allowing the imports of the commodities in question beyond a particular quantity, was not a prohibition simpliciter. It was ....