Home Case Index All Cases Customs Customs + HC Customs - 2019 (5) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (5) TMI 673 - HC - CustomsValidity of restriction imposed on import of pigeon peas, Beans of the species Vigna Mungo (L.) Hepper (Moong Dal) - Vires of N/N. 19/2015-2020, dated 05.08.2017 and 22/2015-2020 dated 21.08.2017 - the import policy of the goods were amended vide above notifications from "free" to "restricted" - Validity of Trade Notice No.19/2017 dated 25.10.2017 issued for the purpose of implementation of notifications - petitioners uniformly submitted that the above said notifications have caused grave prejudice to the petitioners in as much they are unable to import the contracted quantity of Pigeon Peas/Toor Dal due to the said notifications and trade notices. HELD THAT:- From the provisions of the FTP, it is clear that the condition, which is stipulating certain measures subsequently and even such restriction placed on the imports are otherwise stated to be free. The expression “unless otherwise stipulated” appearing in clause (b) of para 1.05 makes it abundantly clear that it is not because there is a blanket provision made in para 1.05 that the restriction or regulation notwithstanding the export or import will ordinarily be permitted. If otherwise there is a stipulation, then these above words will not be of any assistance. Therefore, so far as the impugned Notifications are concerned, it is evident that they are issued in exercise of the powers conferred by section 3. The FTP, as amended from time to time, always contains stipulations with regard to the import. Section 19 (3) of the FTDR Act provides for laying every rule and every order made by Central Government under the Act before each house of parliament, which has not been complied with by the respondents. However, Section 3 confers the power of Central Government to make orders and announce the Foreign Trade Policy. In Notification No.4/2015-2020 the policy condition No.4 specifically states that the import is restricted for a period from 1st April to 30th June 2018, to the total quantity of one lakh MT of yellow peas minus the quantity already imported from 01.04.2018. Thus, the stipulation of policy condition No.4 restricted the import for the period from 1st April to 30th June, 2018 to the total quantity of one lakh MT is as per Section 3 notified by the DGFT. So, there cannot be any import exceeding this quantity within the period stipulated. This will also include the shipment already arrived and this understanding was not in dispute or confusion. If the contracted quantity in terms of the contract between the local importer and the person abroad, is specified and if the entire amount has been secured in terms of this Irrevocable Commercial Letter of Credit or full advance payment irrespective of whether the delivery of the goods will be made in part or not will be covered by the words ‘already imported’. Therefore, it can be understood that if there is an Irrevocable Commercial Letter of Credit, the shipment backed by such Irrevocable Commercial Letter of Credit and if they are already imported between the said notified date, they will be registered as per para 1.05 of FTP 2015-2020. With respect to advance payments made to the extent of hundred percent, they will also be qualified to register with the regional authorities of the DGFT. Thus, the transitional arrangement is already clarified by the trade notices, which are not in contravention to the substantive provisions of the notifications or Section 3 of the FTDR Act. The restrictions imposed by the Government of India are justified, which are brought out by the Government of India through the DGFT for the benefit of the farmers, who are cultivators of indigenous peas, as the import of Peas flooding the market reduce the demand for locally grown peas - the peas growers in India are unable get the right price resulting in loss to small farmers. Petition dismissed - decided against petitioner.
|