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2023 (8) TMI 1394 - HC - CustomsDoctrine of proportionality - Exemption under the Advance Authorisation Scheme - import of pepper was free under the Foreign Trade Policy 2015–2020 or not - competence of the DGFT to issue the notifications - Applicability of N/N. 42/2015-20 dated 06/12/2017 and N/N. 50/2015-2020 dated 05/02/2018, N/N. 53/2015- 2020 dated 21/03/2018 and N/N. 21/2015-20 dated 25/07/2018. HELD THAT:- The notifications explicitly declare that they are issued by the Central Government in exercise of powers conferred by Section 3 of FT(D&R) Act, 1992, read with paragraphs 1.02 and 2.01 of the Foreign Trade Policy. It is also pertinent to note that, vide S.O.211(E) dated 16.01.2002, the President of India, in exercise of the powers conferred by clause(2) of Article 77 of the Constitution, has issued the Authentication(Orders and Other Instruments) Rules, 2002. By virtue of the said rules, the orders and other related instruments relating to the Directorate General of Foreign Trade made executed by the President can be authenticated by the DGFT, Additional DGFT, Export Commissioner or the Joint DGFT. As evident from the file notes pertaining to the impugned notifications, the decision to issue the notification was taken after discussing the matter with the Minister. Hence, there is substance in the contention that the notifications were issued by the Central Government in exercise of the powers conferred under Section 3 of the FT(D&R) Act and the DGFT had only undertaken the ministerial act of publishing the notification. In such circumstances, mere publication of the notifications by the DGFT cannot lead to the presumption that the notifications were issued without the concurrence of the Central Government. Therefore, the challenge on the premise that the notifications were issued by the DGFT and not the Central Government is unsustainable. Section 19(3) of the FT(D&R) Act also does not envisage the placing of the Orders and Rules before the Parliament to be a condition precedent. The provision also does not provide any consequence for non-compliance with the requirement. As such, the requirement can be perceived only as directory. Being so, its non-compliance cannot result in nullification of the notifications. Fixing of minimum piperine content of black pepper at 6%, contrary to the prescription of 4% in the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 - HELD THAT:- Irrefutably, the FT(D&R) Act is not a food related law for the FSS Act to have an overriding effect. Yet another relevant aspect is that, under the impugned notifications, the piperine content of light black pepper berries imported into India under Advance Authorisation Scheme for oleoresin alone is fixed as 6%. As the pepper imported under the Advance Authorisation Scheme is used for manufacturing oleoresin for the purpose of export, the article of food is not for consumption in India. Hence, Section 25 of the FSS Act is not attracted. It is to be noted that the entire quantity of pepper imported by the above three category of traders are exported whereas pepper imported by importers falling outside the categories is consumed in India itself. within the country. As such, there is clear distinction between the exempted category and the other importers. It is trite that only similarly circumstanced persons are entitled to equal treatment. Moreover, Article 14 will not come into play when the distinguishing rationale is based on justifiable reasons and the choice of differentiating one set of persons from the another has a reasonable nexus to the objective sought to be achieved. The objective behind the impugned notifications is to prevent the import of cheap quality pepper into India. As such, the differentiation between two classes of importers has nexus with the objective. There are no merit in the challenge based on Article 19(1) (g) also, since the effect of the notifications is only to restrict the import of black pepper and not to prohibit its import. The law imposing restrictions has to be treated as proportional if it is meant to achieve a proper purpose and the measures taken are rationally connected to the purpose. Applying the proportionality principle, the restriction against import of pepper is found to be justified and unassailable. Petition dismissed.
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