TaxTMI 
TaxTMI 
2023 (10) TMI 183
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....erce and Industry, Government of India ("MoCI"). The impugned notification imposes a prohibition on importation of a variety of cut flowers into India through all airports, save for the Chennai airport. The Petitioner contends that this regulatory measure discriminates against Delhi's flower traders by putting them in an unfavourable position relative to their Chennai-based counterparts. Moreover, they argue that the impugned notification infringes upon the Petitioner's rights under the Constitution of India, as it imposes an unreasonable constraint on the commercial activities undertaken by the members of the Petitioner-association. 2. The impugned notification is reproduced as under: "MINISTRY OF COMMERCE AND INDUSTRY (Department of Commerce) (DIRECTORATE GENERAL OF FOREIGN TRADE) NOTIFICATION New Delhi, the 9th July, 2020 No. 17/2015--2020 Subject: Amendment in import policy of cut flowers under HS Code 0603 of Chapter 6 of ITC (HS), 2017, Schedule -I (Import Policy). S.O. 2289(E).-In exercise of powers conferred by Section 3 of FT (D&R) Act, 1992, read with paragraph 1.02 and paragraph 2.01 of the Foreign Trade Policy, 2015-2020, as amended from....
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.... and the subsequent order, which reads as under: "No. 01/89/180/32/AM-20/PC-2 (A)/P-24868 Government of India Ministry of Commerce & Industry Department of Commerce Directorate General of Foreign Trade ........... Udyog Bhawan, New Delhi Dated 2nd March, 2021 ORDER Subject: Civil Writ Petition No. 8831/2020 entitled Fresh Fruit Flowers & Vegetables Trades Association v. DGFT filed in the Hon'ble High Court of Delhi. The Government of India amended the import policy of cut flowers under HS Code 0603 of chapter 6 of ITC (HS). 2017, Schedule - I (Import Policy) vide Notification No. 17/2015-2020 [S.O. 2289 (E)] dated 9th July, 2020 imposing port restrictions and allowing import of cut flowers through Chennai airport only. 2. The Fresh Fruits, Flowers and Vegetable Traders Association, Delhi filed a Writ Petition (C) 8831/2020 in the Hon'ble High Court of Delhi at New Delhi challenging the said Notification. The Hon'ble High Court of Delhi at New Delhi vide Order dated 18.12.2020 has directed as under: "In view of this limited submission, we hereby direct the concerned respondent authorities to decide the representations....
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....(b) Imposition of restriction on the entry of cut flowers into India was necessitated by the fact that cut flowers are perishable item and which has to be released within time line of 4-6 hrs after phytosanitary inspection and clearance. Therefore, Cut flowers import requires 24x7 working of Plant Quarantine Station(s). Further, there is an increasing trend in export and import of agricultural commodities which require more technical manpower and time for inspection of the consignment to prevent the entry of exotic pests which is important to protect the bio-diversity of the country. There is about 20% increases in import / export inspections of consignments from 2015-16 to 2019-2020. Moreover, there is also increase of points of entry for imported commodities and export units to facilitate the trade and due to limitation of the availability technical manpower, for timely release of the consignments, the existing plant quarantine officials are over stretched. 5. After examining each issues raised in the representation dated 08.08.2020 and 09.09.2020 of the Petitioner and Writ Petition No.8831 /2020 and after affording Personal Hearing to the Petitioner, in consultation wit....
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.... Given the presence of nearby plant quarantine stations at Vasant Kunj, New Delhi, and Faridabad, Haryana, the purported constraints related to technical manpower and overburdened plant quarantine officials do not hold water. Such justifications fail to meet the legal tests set forth under Articles 14, 19, and 21 of the Constitution of India. Furthermore, the Petitioner-association's members have consistently paid the requisite fees and charges mandated by the MoCI, undermining any argument concerning manpower or facility shortages. 8. The impugned notification makes it impractical for Delhi NCR flower traders to source fresh cut flowers from Chennai. The inherent loss of freshness and quality due to the extended transit time, particularly after the first 24 hours from cutting, combined with transportation costs and potential damage in transit, significantly hampers their business operations. Beyond individual enterprises, this adverse impact extends to over 10,000 people whose livelihoods are compromised by the impugned notification and the order. Additionally, the Petitioner points out that the Government of India stands to lose substantial customs duty revenue. Between 01st A....
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....edural delays at Chennai Airport, where it took more than 2-3 days from the point of entry into India until the flowers reached the market. To substantiate these contentions, the Petitioner included documentary evidence showcasing instances of import logistics at both airports. 14. There exists a limited operational window at the Regional Plant Quarantine Station in Chennai (hereinafter "RPQS, Chennai"), which only functions from Monday to Saturday between 9:15 AM and 5:45 PM. In contrast, they cited information obtained through a Right to Information (RTI) request, which revealed that five to six Plant Quarantine officials (hereinafter "PQ Officials") were available around the clock at Delhi Airport, ensuring there were no backlogs or delays in clearance. 15. The Petitioner-association challenged the assertion of overstretched resources at Delhi Airport as being without basis. They noted that the contentious notification came into effect during a period when international flights were suspended due to COVID-19 lockdowns, thus halting the import of cut flowers. This fact undercuts the claim of resource constraints and delays, painting it as an unfounded rationale for the poli....
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....cut-flowers." DGFT's Subsequent Affidavit 17. In response to the Court's query and Petitioner-association's rejoinder, the DGFT's subsequent affidavit stated that there was a 20% increase in the volume of agricultural commodities being exported and imported in the period between 2015-16 to 2019-20, necessitating a redistribution of resources to prevent overburdening of ports. The affidavit clarified that various officials at the Delhi Airport were redeployed to handle other agricultural commodities and other duty points as required. This redistribution of resources, according to the DGFT, eased the pressure on an already overburdened port. Further, it was admitted that cut flowers require quick processing, however it was also emphasized that the country had already suffered economic losses due to invasive species. Accordingly, it was contended that channelling imports through Chennai Airport meets two objectives: rapid clearance of consignments and strict adherence to phytosanitary requirements. The DGFT argued that this was possible due to the technically efficient manpower available at Chennai Airport. Petitioner's Reply to DGFT's Subsequent Affidavit 18. ....
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....ment could not provide similar specialized facilities at Delhi airport. Further, it detailed how various orchid importers had benefitted from the impugned notification and argued that while various other items were still imported through Delhi, the specific restriction was inexplicably only on fresh cut flowers. Analysis and Findings 23. We have carefully examined the pleadings, the material on record and the contentions raised by the counsel. The crux of the matter is whether the Union Government, represented by its respective departments, is justified in allowing the importation of cut flowers exclusively through Chennai Airport. On one hand, the Petitioner argues that the directive is arbitrary, especially given the absence of any incidents involving exotic pests from imported cut flowers at Delhi Airport, and the purported sufficiency of staffing and facilities there. On the other hand, Government argues that the directive serves national interests related to bio-security and efficiently uses available resources. 24. The comprehensive affidavits submitted by the Respondent elucidate the reasoning behind the impugned notification and the order. While the Respondents agr....
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....ondents make the case that the increasing intricacy and scale of global agricultural trade warrant intensified scrutiny, specialized expertise, and a central hub for regulatory oversight. The identification of Thrips, in particular, serves as a cautionary tale, underscoring the economic and ecological ramifications should such pests gain entry into India's agricultural ecosystems, especially in regions with heightened floral production like the north. 29. The Respondents have compellingly spotlighted the escalated phytosanitary risks-specifically, the risk of introducing harmful exotic pests-associated with importing certain types of cut flowers. These risks, necessitate the allocation of specially-trained manpower and cutting-edge technological resources. The imperative of bio-security gains further emphasis in the context of the widespread ramifications witnessed by our country due to cross-border spread of COVID-19 virus. Bio-security is thus more than a health issue; it constitutes an integral facet of national security, given its direct impact on the ecological and environmental framework that is vital for growth of the country. The inadvertent introduction of invasive alie....
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....anitary risk associated with the import consignments of Cut flowers, the stringent Plant Quarantine inspections at point of entry followed by detailed lab testing are mandatory to safeguard Bio security of the Country. Therefore, deployment of trained technical man power with ultra-modern laboratory facilities are required for handling import consignments of Cut flowers. At present strengthening of trained technical man power, besides modernization of laboratory facilities are being undertaken. Due to which, the interceptions of various pests from the import consignments of Cut flowers have been reported at Chennai. In a phased manner efforts will be made to strengthen technical manpower and laboratory facilities to other ports, including Delhi." [Emphasis Supplied] 32. In a subsequent affidavit dated 17th April, 2023, submitted by the Joint Director of Plant Quarantine at DPPQ&S, further details are provided regarding the upgrading of facilities at various ports. This affidavit explicitly states that improvements to the Plant Pathology and Entomology laboratory facilities are underway at several major Regional Plant Quarantine Stations (RPQSs) and airports, includin....