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TMI Blog2018 (7) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... apex body. It entered into commercial contracts for import of 5000 metric ton (mt) of garlic pursuant to the special licences issued by the Director General of Foreign Trade (D.G.F.T.). The garlic was a restricted item under the Export & Import Policy 2002-07 till 16.01.2003 and could not be imported and such foreign commodity/goods could not be traded. This was to encourage the growth and trade of domestic products. During the concerned season there was a garlic shortage. On account of this even the D.G.F.T. enabled individuals and other entities to import garlic as a restricted item and issued special licences for this purpose. Outer limit for such importation and the corresponding licences were to the tune of 4000 mt. The petitioner obtained special licences to import 5000 mt. Prior to the Customs Notification No.11/2003 issued on 15.01.2003 the preexisting rate of customs duty was 30% however, by this Notification of 15.01.2003 the customs duty was increased to 100%. 4. The petitioner had imported and cleared 3000 mt of the consignments which it had contracted for; the special licences to that extent were exhausted. As on 15.01.2003, it appears that the balance goods, i.e. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, Section 25(2) of the Act cannot be invoked by him. But neither of the orders as pointed out already has given its reasons for rejecting his request under Section 25(2) of the Act. The only reason given in the two orders is that the Notification No. 160/84 dated 22-5-1984 has already lapsed on 31-7-1984 and the benefit of the notification was no longer available to the petitioner. Reliance is placed by learned counsel for the respondents on the last sentence in the first part of the order dated 22-8-1984. It is submitted by him that the respondent has given a reason that as a matter of policy exemption is not granted to handicapped persons not the relevant dates. The sentence does not in any way show that the circumstances set out in Section 25(2) of the Act are considered by the concerned authority. That sentence if read with the earlier sentence in the order will only show that as a corollary to the lapse of Notification on 31-7-1984, the authority is of the view that the petitioner will not be entitled to any exemption as the policy had changed after 31-7-1984. Even if the policy has changed in general it is applicable to all the general public but it is open to the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f customs duty, for that matter for any other tax is one of policy and that even as to whether a particular case falls within the exceptional category under Section 25(2) of the Act is a matter to be gone into exclusively by the appropriate authority, which is the Central Government, having regard to not merely one or two but several circumstances. The learned senior counsel relied upon Manglam Organics Ltd. vs. Union of India, (2017) 7 SCC 221 in this regard and submitted that the question as to the exemption in a class of cases or a particular case is a matter of policy and in fact exercise pursuant to the statutory delegation. It was also emphasized that the Supreme Court ruling in Union of India and Ors. vs. Apar Private Ltd. and Ors., (1999) 6 SCC and Garden Silk Mills vs. Union of India, (1999) 8 SCC 744 is forthright that the rate of duty prevailing at the time of clearance of goods has to be applied and paid. 8. In view of these facts it is submitted that no relief can be claimed by the petitioner. Section 25(1) & (2) of the Act reads as follows:- "25. Power to grant exemption from duty.-(1) If the Central Government is satisfied that it is necessary in the public intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporting the allotted quantities. The Central Government in its counter affidavit explains these events in the following terms:- "It is submitted that garlic was in the Restricted List before 17th January, 2003 and the DGFT was issuing import licenses on the basis of the annual ceiling for the import of the item indicated by the Ministry of Agriculture (MoA), based on the demand supply gap of the item in the market. The practice of allotting licenses led to Public Interest Litigation before this Hon'ble Court. The cooperative societies who had already been issued import licenses were not importing the allotted quantities. The prices in the retail market remain high which resulted in a high and unjustified premium on the import license for the item. The Ministry of Agriculture agreed to the suggestion of the Ministry of Commerce that the garlic should be removed from the restricted list. However, to protect the interest of the producers, the Ministry of Agriculture suggested that duty on import of garlic should be raised to 100% before quantitative restriction is removed on the import of the item. In view of above, the Respondent No. 1 issued notification NO.11/2003-Customs, da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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