TaxTMI 
TaxTMI 
2026 (4) TMI 763
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...., the respondents had restricted the importation of roasted areca nut by fixing the Minimum Import Price (MIP) at the rate of Rs. 351/- per kg. However, no proper survey was conducted before fixing the said MIP. According to the respondent, they have brought these restrictions in order to protect the interest of the Indian farmers and local market. 2.2 Further, he would contend that as per the Notification No. 46/2011, the petitioner is eligible for importation of roasted areca nut at the rate of zero custom duty. However, now, though the custom duty is continuing at the rate of zero custom duty, the DGFT had fixed MIP at the rate of Rs. 351/- by virtue of impugned Notification. 2.3 In this regard, he referred to the Framework Agreement on the Comprehensive Economic Co-operation between the Republic of India and Association of Southeast Asian Nations (ASEAN) signed on 13th August 2009, and would submit that the petitioner is eligible for import of areca nut without any basic custom duty as per Notification No. 46/2011. 2.4 In terms of Article 8 of ASEAN Agreement, India, being contractor party, shall not institute or maintain any non-tariff measures on the importation of g....
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....Further, the protection available under ASEAN Agreement and WTO Agreement on agriculture would automatically come to the rescue of the petitioner. Hence, he requests this Court to pass appropriate orders and quash the impugned notification. 3.Respondents' submission: 3.1 Per contra, the learned Additional Solicitor General of India appearing for the respondent had strongly opposed the submissions made by the petitioners and would submit that in this case, the Notification was issued in terms of Section 3(2) of the Foreign Trade Development and Regulation Act, 1992 (hereinafter called as "1992 Act"), which enables the Central Government to make provision for prohibiting, restricting, or otherwise regulating in all cases or in specified classes of cases and subject to any exceptions, if any, as may be made by or under the order, the import or export of goods or services or technology. 3.2 By referring the said provision, he would submit that the respondent will have power to pass orders by publishing official gazette for restricting or prohibiting the import of any goods. 3.3 Further, he would submit that in this case, the prohibition, on the import of roasted areca n....
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....d in Commissioner of Customs, New Delhi vs. Brooks International reported in 2007 (213) E.L.T. 161 (S.C.) and would submit that the word "strict prohibition" includes both absolute as well as partial. Even if the partial restriction is provided, the same can be termed as a prohibition to that extent. Accordingly, in this case, it is not completely prohibited but there is only a partial restriction for import of the roasted areca nut below the rate of Rs. 351/- per kg. 3.8 Further, in order to substantiate his submissions, he referred to the judgement of the Hon'ble Apex Court in Union of India and others vs. Agricas as LLP and others reported in (2021) 14 SCC 341 (hereinafter called as "Agricas case") and prays for dismissal of this petition. 4. I have given due consideration to the submissions made by the learned Senior counsel appearing for the petitioner and the learned Additional Solicitor General appearing for the respondents and also perused the entire materials available on record. 5. In the case on hand, according to the respondents, the DGFT will have power to issue notification under Section 3(2) of 1992 Act. Now, it would be apposite to extract the said prov....
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....ulate and announce foreign trade policy from time to time. Further, it was held that certainly, the Central Government can put any restrictions for import and export by invoking the power available for them under Section 3(2) of the 1992 Act. Therefore, it is clear that the issuance of impugned Notification No. 43/2025-26 dated 15.10.2025 by the Central Government is well within the powers available to them in terms of the provisions of 1992 Act. 10. Yet another submission was made with regard to the exclusion available to the petitioner in terms of Notification No.46/2011 dated 01.06.2011. According to the petitioner, they are importing the roasted areca nuts by invoking the aforesaid Notification No.46/2011 and in terms of the said Notification, the petitioner is not liable to pay any duty for such import. 11. In this case, MIP was imposed by the respondents for the importation of roasted areca nut, by virtue of the impugned notification No.43/2025-26 dated 15.10.2025, with an intention to protect the interest of the Indian farmers. On the other hand, by citing the ASEAN and WTO Agreements on agriculture, the petitioner is taking a stand that no such restrictions can be imp....
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.... Article 4 Market Access 1.Market Access concessions contained in Schedules relate to bindings and reductions of tariffs, and to other market access commitments as specified therein. 2.Members shall not maintain, resort to, or revert to any measures of the kind which have been required to be converted into ordinary customs duties, except as otherwise provided for in Article 5 and Annex 5. 16. By reading the Article 4(1), it is clear that market access concession are required to be made to the extent containing in Schedule relating to bindings and reductions of tariffs and to other market access commitments as specified therein. Further, Article 4(2) states that members shall not maintain, resort to or revert to any measures of the kind which have been required to be converted into ordinary customs duties, except as otherwise provided for in Article 5 and Annex 5. 17. As per the Article 5, non-tariff can be imposed and the relevant provisions of Article 5 reads as follows: Article 5 Special Safeguard Provisions (1) Any member may take recourse to the provisions of paragraphs 4 & 5 below in connection with the importation of an agricultura....