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2016 (7) TMI 778 - KERALA HIGH COURT

2016 (7) TMI 778 - KERALA HIGH COURT - 2016 (337) E.L.T. 378 (Ker.) - Validity of policy decision - Imposing prohibition on export of Shark fins of all species of Shark. - Petition challenge the notification on the ground that the notification issued is without any application of mind or without any basis. They also challenge it on the ground that the notification is issued by the Director General of Foreign Trade, who is not the competent authority to issue such notification. - Held that:- .....

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s on the factors relating to the decision making process. It is to be noted that the Central Government deliberated the issue and the relevant factors have been taken into account for the decision. The rationality of the decision cannot be adjudged on a proof of validity as a pre-requisite. The decision makers need not establish or demonstrate that the decision would secure its objectives. The ultimate decision by passage of time may prove the decision was right or wrong. The freedom of the deci .....

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s.13728/2015, 31960/2015 & 5034/2016 - Dated:- 9-3-2016 - A.MUHAMED MUSTAQUE, J. PETITIONER BY ADV. SRI.M.A.ABDUL HAKHIM R1 TO R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R4 BY ADV. SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCIS JUDGMENT These batch of writ petitions are filed challenging a notification issued by the Ministry of Commerce and Industry, Central Government under Section 5 of the Foreign Trade (Development and Regulation) Act, 1982 (for short, the "Act") prohibiting ex .....

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cessary power to formulate Foreign Trade Policy. It appears that complaints were raised from certain quarters against Shark finning. A meeting was held on 13/1/2015 under the Chairmanship of the Commerce Secretary. The meeting discussed about restriction on capture/export of all species of Sharks/Shark products. Various stake holders have taken part in the meeting. Though different concerns were expressed, it appears that after the discussion, the Commerce Secretary took the view that trade in S .....

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ioners argued that there is no ban on use of Shark fins at domestic level. It is further argued that there is no ban on fishing of Sharks. The learned counsel points out that Sharks are not captured on targeted fishing, as Sharks do not travel in a group. It is further submitted that it is impossible to avoid capture of Sharks by fishermen. Therefore, since there is no ban on capture of Sharks, and there is no ban on consumption of Sharks at domestic level, prohibition of Shark finning alone is .....

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d others v. Dinesh Engineering Corporation and Another [(2001) 8 SCC 491], Federation of Railway Officers Association and others v. Union of India [(2003) 4 SCC 289] and Union of India and another v. International Trading CO. And Another [(2003) 5 SCC 437]. 6. On the other hand the learned Assistant Solicitor General of India submits that Shark fins, both in terms of quantity and value are very small and there is no much domestic consumption of Sharks. It is pointed out that fishermen are involv .....

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following judgments: Liberty Oil Mills and Others v. Union of India and others [(1984) 3 SCC 465], M/s.D.Navinchandra and Co.Bombay and others v. Union of India and others [(1987) 3 SCC 66], Subhash Photographics and others v. Union of India and others [(1993) Supp.3 SCC 323], S.B.International Ltd. and others v. Asstt.Director General of Foreign Trade and others [(1996)2 SCC 439], Indian Handicrafts Emporium and others v. Union of India and others [(2003)7 SCC 589], [2009 KHC 4571], Maine v. R .....

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tral Government under Section 5 of the Act. Section 5 enables the Central Government to formulate its Foreign Trade policies from time to time. The notification produced and challenged before this Court would clearly show that the notification is issued by the Central Government and not by the Director General of Foreign Trade. Therefore, what remains to be decided is whether the policy framed by the Central Government suffers from any infirmity with the decision making process. 10. It is well s .....

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struments embodying the policy. The import policy of any country, particularly a developing country, has necessarily to be tuned to its general economic policy founded upon its constitutional goals, the requirements of its internal. and international trade, its agricultural and industrial development plans, its monetary and financial strategies and last but not the least the international political and diplomatic overtones depending on friendship, neutrality or hostility with other countries' .....

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y." 12. In Census Commissioner's case [(2015)2 SCC 796], the Hon'ble Supreme Court held that the domain of the Courts to embark upon enquiry as to whether particular public policy is wise and acceptable or whether better policy could be evolved is beyond the interference by the Courts. 13. In a recent judgment of the Honble Supreme Court in Parisons Agrotech (P) Ltd.'s case [(2015) 9 SCC 657], It was held as follows: "Held, once it is found that there is sufficient material .....

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courts ought not to tinker with the same." 14. In the case in hand, the Central Government appears to have been moved by the concern, to stop depletion of the Sharks in the marine environment, especially, in Indian waters to protect the marine eco-system. The Shark appears to be considered as an apex of the marine food chain. Certainly, this is a relevant factor for formulating any policy by the Central Government. The petitioners' challenge is mainly on the ground that there is no ban .....

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.P10 is dated 26/11/2014 and Ext.R2(e) is dated 13/01/2015. 16. In the meeting held on 26/11/2014 (Ext.P10), the following decision was minuted: "Summing up the discussion, CS told that as per the discussions, there are 50 to 60 varieties of Sharks out of which only 9 are prohibited as per the provisions of Wildlife (Protection) Act. Hence, legally, action cannot be taken against those exporters who have exported the Shark fins, parts etc not covered under the prohibited category. However, .....

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n for stopping finning of Shark in the high seas." 17. Thereafter, in the meeting held on 13.1.2015 [Ext.R2(e)], the Commerce Secretary summed up the discussion as follows: "7. After further discussions, the CS directed that in so far as Department of Commerce is concerned, the trade in shark fins (both export and imports) should be banned, keeping in view the ecological aspects resulting out of the fishing and finning of sharks in the Indian EEZ. He further stated that in so far as ca .....

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