TaxTMI 
TaxTMI 
2026 (1) TMI 1102
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....titions filed by the appellants were dismissed. By the aforesaid order and judgment, the High Court dismissed the challenge laid by the appellants to a Notification issued by the Central Government imposing a Minimum Import Price on certain steel products. The controversy lies in narrow compass and turns primarily on the interpretation of the expression 'date of this Notification' occurring in para 2 of Notification No. 38/2015-2020 (Notification), issued under the Foreign Trade (Development and Regulation) Act, 1992 (Act). THE FACTUAL BACKGROUND 3. The appellants are private limited companies incorporated under the Companies Act, 1956 and are engaged in the import and trading of mild steel items such as Hot Rolled Coils, Cold Rolled Coils, Hot Rolled Steel Plates and Pre Painted Steel Coils etc. Admittedly, prior to February, 2016, the said items were freely importable and fell under Chapter-72 of the Indian Trade Clarification (Harmonized System), 2012 (hereinafter, referred to as 'ITC-HS'), Schedule-I of the Foreign Trade Policy, 2015-2020 (FTP). 4. Between 29.01.2016 and 04.02.2016, the appellants entered into firm sale contracts with exporters from China and South Kor....
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....the Notification. It is contended that the date of the Notification cannot be read as 05.02.2016, as the Notification was admittedly published on 11.02.2016 and would be effective from the aforesaid date. In support of the aforesaid submissions, reliance has been placed on the decisions of this Court [B.K. Srinivasan & Ors. vs. State of Karnataka & Ors., (1987) 1 SCC 658 and Raja Harish Chandra Raj Singh vs. Deputy Land Acquisition Officer & Anr., (1962) 1 SCR 676.]. 10. On the other hand, learned counsel for the respondents submitted that even though the Notification comes into effect from 11.02.2016, yet the benefit of para 2 of the Notification is restricted to Letters of Credit entered into before 05.02.2016. It is contended that the expression 'date of Notification' will remain static as 05.02.2016. It is pointed out that very often legislations get enacted on a particular date but either the Act, in its entirety, or some of the provisions in the Act are brought into force on a particular date. In this connection, our attention has been invited to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. It is pointed ou....
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....rts - (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 and technology]" 14. In exercise of powers under Section 3 of the Act read with paras 1.02 and 2.01 of FTP, the Central Government amended the Import Policy Conditions vide Notification against 173 HS Codes under Chapter - 72 of ITC (HS), 2012 - Schedule - I (Import Policy) subject to the conditions mentioned therein. The said Notification reads as under: "To be Published in the Gazette of India Extraordinary Part-II, Section-3, Subsection (ii) Government of India Ministry of Commerce & Industry Department of Commerce Directorate General of Foreign Trade Udyog Bhawan Notification No. 38/2015-20 New Delhi, Dated: 5 February, 2016 Subjec....
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....icant shall have to register the Letter of Credit with jurisdictional Regional Authority (RA) against computerized receipt, within 15 days of the imposition of any such restriction or regulation." ANALYSIS 16. We have given our thoughtful consideration to the rival submissions and have taken note of the relevant statutory provisions. Law, to bind, must first exist. And to exist, it must be made known in the manner ordained by the legislature. Delegated legislation, unlike plenary legislation enacted by the Parliament, is framed in the executive chambers without open legislative debate. The requirement of publication in the Gazette, therefore, serves a dual constitutional purpose i.e. (a) it ensures accessibility and notice to those governed by the law, and (b) it ensures accountability and solemnity in the exercise of delegated legislative power. The requirement of publication in the Gazette, is therefore not an empty formality. It is an act by which an executive decision is transformed into law. It is precisely for this reason that courts have consistently insisted that strict compliance with the publication requirements is a condition precedent for the enforceability of del....
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....on to executive discretion. Delegated legislation is an instrument to give effect to the policy and purpose of the parent statute. It, therefore, has to be construed in the manner that advances the object of the Act, namely to regulate foreign trade through transparent, predictable and legally certain measures. Tested on the aforesaid legal principles, coupled with requirement of publication in the Official Gazette, contained in parent statute, it is manifest that the Notification could not have acquired the force of law prior to its publication in the Official Gazette on 11.02.2016. Indeed, the Notification itself acknowledges its incompleteness by declaring that it is 'to be published in the Gazette of India'. The acknowledgement is a confession that, until such publication, the Notification had not crossed the threshold from intention to obligation. Once the legislature has prescribed the specified mode of promulgation, the executive cannot introduce an alternative mode and attribute legal consequences to it. A Notification cannot operate in a fragmented manner. In law, it is born only upon publication in the Official Gazette, and it is from that date alone that rights may be cu....