TMI Blog2012 (1) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... orts being way below the quota prescribed has no affect on domestic growers or the market and no harm to domestic growers or consumers is caused by notifying duty free import of maize (corn) and withdrawing the restriction of actual user. Petition disposed off - decided partly in favor of petitioner. - WRIT PETITION No.16349 of 2011 - - - Dated:- 23-1-2012 - SRI JUSTICE VILAS V. AFZULPURKAR FOR THE PETITIONER: MR. D.V. SEETHARAMA MURTHY, FOR MR. N. ASHWANI KUMAR FOR THE RESPONDENTS: MR. PONNAM ASHOK GOUD ASST. SOLICITOR GENERAL, MR. M.S. RAMACHANDRA RAO ORDER Petitioner, a propriety concern, is engaged in the activity of trade in agricultural products, particularly, buying and selling Popcorn - Maize. The proprietor also claims that he is an agriculturist engaged in cultivation of popcorn. 2. It is stated that petitioner enters into contracts with farmers, who are engaged to grow popcorn-maize and in turn petitioner provides support price to the farmers. Popcorn is said to be widely grown in Karnataka and parts of Andhra Pradesh and the cultivation is spread on an extent of 1,000 acres per season. Though Maize, as an agricultural produce, is widely g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y customs notification No.9/2007 dated 25.01.2007 and (2) With effect from the date of public notice the actual user condition will not be mandatory for import of items under TRQ scheme. Petitioner s challenge is to the aforesaid public notice, particularly, the deletion of condition of actual user for importing popcorn. 5. Mr. D.V. Seetharama Murthy, learned senior counsel for the petitioner, has made elaborate submissions, which are replied to by the learned Assistant Solicitor General. Mr. M.S. Ramachandra Rao, learned counsel, has appeared for proposed respondent, who seeks impleadment in opposition to the writ petition. The said implead petition is opposed by the learned senior counsel for the petitioner on locus and bonafides of the proposed party. 6. I have, however, allowed Mr. M.S. Ramachandra Rao to make his submissions on merits as well and as detailed hereunder, the application for impleadment deserves to be allowed, as the proposed respondent, if not a necessary party, certainly is a proper party, particularly, as the public law remedy is invoked by the petitioner. The reasons for permitting the impleadment as well as merits of the contentions are discussed hereu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case and contends that the actual user condition was in conformity with the aforesaid provisions of the Customs Act and the export and import policy. The impugned public notice issued by DGFT, being contrary to the intention of the aforesaid provisions, is, therefore, liable to be declared as arbitrary. 10. It is also contended by the learned senior counsel for the petitioner, by placing reliance upon a decision of the High Court of Madras in WP.No.5120 of 2011 dated 31.03.2011 to substantiate that the actual user condition was not only being insisted upon by DGFT for all imports even in 2010, but the importers were proposed to be prosecuted also for violation of the undertaking as to actual user. 11. The Assistant Director General of Foreign Trade filed a counter on behalf of respondents 2 and 4 whereas respondents 1 and 5 have filed a counter through the Commissioner of Customs and Central Excise, Hyderabad Commissionerate II. 12. Respondents 2 and 4 accepted that the Government of India relaxed the customs duty and made it concessional at 15% in discharge of the obligations of India under WTO, which is evident from the customs notification No.21/2002 dated 01.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... domestic market. The withdrawal of actual user condition is sought to be justified on the ground that the maize (corn) under TRQ scheme, being a food item, the compliance with actual user condition may not be entirely possible. Hence, in the Inter Ministerial Meeting held in the year 2003 instead of making imports subject to actual user condition, imports were directed to be prioritized in terms of need base of the applicants. 14. The impleaded seventh respondent, through his affidavit submits that the earlier condition of actual user continued in the prescribed form in spite of the decision in the Inter Ministerial Meeting in the year 2003 itself, particularly, as the prescribed form for making application for imports was not appropriately amended and continued to show that applicant is required to satisfy the condition of actual user . It is on account of the lack of appropriate modification that the confusion prevailed and the licenses issued continued to show the condition of actual user . In order to clarify the confusion, therefore, the impugned public notice is issued by DGFT. The seventh respondent states that he had imported the corn under TRQ scheme and though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst public interest? POINT Nos.1and 2: 17. The affidavit filed by the petitioner in support of the writ petition proceeds on a specific contention that the decision of withdrawal of actual user condition is that of the Government of India, which is also reflected in the prayer. Learned senior counsel for the petitioner, however, made submissions on the ground that under the Foreign Trade (Development and Regulation) Act, 1992, Section 5 provides that the Central Government may from time to time formulate and announce, by notification in the official Gazette, the export and import policy. So far as DGFT is concerned, under Section 6 of the Act sub-Section (2) provides that DGFT may advise the Central Government in formulation of export and import policy and shall be responsible for carrying out that policy. Sub-section (3) provides that the Central Government may delegate powers exercisable by it to DGFT or his subordinates except the powers of Central Government under Sections 3, 5, 15, 16 and 19 of the Act. It is, therefore, contended that the power under Section 5 with respect to policy formulation cannot be discharged by DGFT. Section 11 of the Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may include: (a) The quantity description and valued of the goods: (b) Actual User condition; (c) Export obligation; (d) The value addition to be achieved; and (e) The minimum export price. State Trading 2.11 Any goods, the import or export of which is governed through exclusive or special privileges granted to State Trading Enterprise(s), may be imported or exported by the State Trading Enterprise(s) as specified in the ITC (HS) Book subject to the conditions specified therein. The Director General of Foreign Trade may, however, grant a license/certificate/permission to any other person to import or export any of these goods. In respect of goods the import or export of which is governed through exclusive or special privileges granted to State Trading Enterprise(s), the State Trading Enterpris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-clause (2) of the said public notice as under: In exercise of powers conferred in Paragraph 2.4 of the Export and Import policy 2002-2007, as notified in the Gazette of India extraordinary Part II Section 3, sub-section (ii) vide S.O.No.349(E) dated 31.03.2002 as amended from time to time and as per provisions at condition No.1 of the Annexure to Notification No.21/2002 customs dated 1.3.2002, the Director General of Foreign Trade hereby notifies the procedure for allocation of this Tariff Rate Quota (TRQ) as under 20. In contrast to the DGFT s public notice of 2002, the actual user condition is not found in the subsequent public notices. Similar public notice No.63(RE-03) dated 12.05.2004 also did not contain the condition of actual user and so also the subsequent public notices dated 27.05.2005, 09.01.2006 and 18.03.2010. However, annexure to the public notice dated 09.05.2003 containing prescribed application format for import of items covered under TRQ continue to show the requirement of the applicant having to declare that goods imported will be utilized for the purpose for which they are imported and shall not be sold. 21. The decision of the Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of India, the relevant portion of para 67 as follows: it is also the consistent policy of the Government of India to encourage export of meat and meat produce Therefore, the position of law remains that the directive principles and fundamental duties cannot in themselves serve to invalidate a legislation or of a policy. Moreover, the export policy itself permits only export of meat from buffaloes that are certified as not useful for milching, breeding or draught purposes. Therefore, if properly implemented, it cannot be said that the policy will necessarily have adverse consequences, especially in view of the foreign exchange obtained through it. Accordingly, we are unable to accede to the argument of the learned counsel for the appellant that the meat export policy, as made by the Central Government must be struck down. 23. Another decision of the Supreme Court in DARSHAN OILS PVT.LTD v. UNION OF INDIA [(1995) 1 SCC 345] would also be relevant to be noticed as the said decision deals with the amendment of import policy of the Government of India wherein it was held that withdrawal of a notification issued under the Customs Act in public interest does not amount to vio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
