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2021 (1) TMI 524 - HC - CustomsInterpretation of Statute - whether a Trade Notification can be amended by a Trade Notice in terms of Section 3 of the Foreign Trade (Development and Regulation) Act, 1992? - contention of the learned counsel for the petitioner is that the Trade Notice is not issued under any particular provisions of the FTDR Act - HELD THAT:- There is no source of power for issuing a Trade Notice. As stated in the counter-affidavit, a Trade Notice is procedurally issued for clarifying certain doubts that may arise among the traders. The Notification No.8/2015-20, dated 12.06.2019 is silent about the applicability of restriction imposed on import of cashew kernels broken or whole to the units in SEZs and 100% EOUs. When such is the position, by placing reliance on the Section 3 and 5 of the FTDR Act, it is stated that the Trade Notice is issued stating that MIP on cashes is not applicable for imports by 100% EOU and units in SEZs. A reading of the proviso to Section 5 stipulates the issuance of a separate notification for the applicability of the Trade Notification or in any exemption, modifications and adaptations by a specific notification in the official Gazette. Notification No.8/2015-20, dated 12.06.2019, which was issued in exercise of power conferred by Section 3 of the FTDR Act read with paragraph 1.02 and 2.01 of the FTP 2015-2020, which, in the considered opinion of this Court, is an amendment in import policy conditions of cashew kernels both broken and whole. This Court is also of the view that any further amendment or clarification of this nature should also be made only as per Section 3 and not by a mere notice, which is not in accordance with the Statute. A reading of the Notification and subsequent Trade Notice makes it clear that Notification No.8/2015-20, dated 12.06.2019, enhancing the MIP of the broken and whole cashew kernels, wherein, the Trade Notice No.50/2019-20, dated 14.02.2020 states that the same is not made applicable to the EOUs and SEZs, which is certainly an amendment to the Trade Notification and it is cannot be stated that it is a mere elaboration, information or clarification to the Regional Authorities of the Directorate, as claimed by the respondents. Hence, the said clarification or modification to the original Notification cannot be made in terms of a mere notice without following the statutory procedure, in the given case. The allegation of the petitioner that the cashews imported from African countries are exported to foreign countries branding them as Indian cashews, which fact is not denied by the respondents in the counter-affidavit, cannot be brushed aside lightly. It is duty of the respondents to ensure maintenance of standards for the classification, grading or marketing of Indian goods in international grade, even from EOUs and SEZs and there should not be any space for compromise for the Indian brand name for any short gain by the Traders - the impugned Trade Notice is liable to be set aside. Petition allowed.
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