Home Case Index All Cases Customs Customs + HC Customs - 2021 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (3) TMI 910 - HC - CustomsConstitutional validity of notification issued / authenticated by the DGFT - Prescribing Minimum Import Price (for short the "MIP") for Cashew Kernels Broken and Cashew Kernel whole - whether the notification no. 53 dated 2.12.2013 can be held ultra vires to the provisions of the Customs Act and the Foreign Trade Act as well as to the Article 14 of the Constitution of India or not? HELD THAT:- On perusal of the above notification, it is clear that the same is issued under section 5 of the Foreign Trade Act read with paragraph no. 2.1 of the Foreign Trade Policy, 2009-2014, as amended from time to time by prescribing the minimum CIF value of cashew kernels under Chapter 8 of ITC (HS) 2012, Schedule 1 (Import Policy) per kilogram being ₹ 288/- for cashew kernel (broken) for HS Code 0801 32 10 and ₹ 400/- for cashew kernel (whole) for HS Code 0801 32 20. Since 2013, the MIP for two different categories of cashew kernels broken and whole are in existence. Madras High Court in case of S. MIRA COMMODITIES PVT. LTD. VERSUS UNION OF INDIA [2008 (9) TMI 213 - MADRAS HIGH COURT], considering the similar notification dated 4.6.2008 issued by the DGFT with regard to restricting the import of betel nuts valued at ₹ 35/- or more per kg., held that the DGFT has no power to issue the notification under section 5 read with section 6(3) of the Foreign Trade Act on artificial basis. Thus, it is clear that DGFT has not exercised powers under section 3 of the Foreign Trade Act but has merely authenticated an order which relates to the DGFT in accordance with the authentication rules. Therefore, the contention raised by the petitioners that DGFT has no authority to issue such notification is not sustainable in view of above dictum of law. In view of the provisions of the Customs Act and Foreign Trade Act, notification issued by the DGFT is to be considered as notification issued by the Central Government which is binding upon the petitioners as the same is issued in exercise of powers vested in the Central Government under section 3(2) of the Foreign Trade Act - the contentions raised by the petitioners with regard to the validity of the notification fails. The impugned notification cannot be held to be ultra vires to the provisions of the Customs Act or the provisions of the Foreign Trade Act, or Article 14 of the Constitution of India as the same is issued by the Central Government under the powers conferred by the provisions of section 3(2) and section 5 of the Foreign Trade Act. Petition dismissed.
|