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TMI Blog2018 (8) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... man beings. It is stated that a purpose other than the purposes made mention of in Section 38 of the Act is generally called non-insecticidal purpose. Since the petitioner is using EDC for a non-insecticidal purpose, it is stated that they have been importing EDC without obtaining registration and import permit in terms of the Act. While so during 2007, the Commissioner of Customs, Mumbai, has issued Ext.P7 trade notice to the effect that importers of EDC for non-insecticidal purposes without registration and import permit in terms of the Act shall furnish a certificate within three months from the Central Excise Officer concerned to the effect that the imported substance has been consumed for their manufacturing activity. It is stated that in the light of Ext.P7 trade notice, the petitioner has been importing EDC thereafter in accordance with the same. It is also stated by the petitioner that later when some custom houses entertained doubt as to whether registration and import permit under the Act is required for importing insecticides for non-insecticidal purposes, the Central Board of Excise and Customs clarified, in terms of Ext.P9 circular that in the light of Section 38 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Solicitor General of India. 6. The learned Senior Counsel for the petitioner, placing reliance on Section 38 of the Act, arduously contended that none of the provisions of the Act would apply to an insecticide imported for a non-insecticidal purpose and Ext.P10 decision of the Registration Committee is ultra vires the Act. Placing reliance on the decision of the Apex Court in Steel Authority of India v. Collector of Customs, Bombay [2000 (115) ELT 42 (S.C.)], the learned Senior Counsel also contended that the authorities under the Customs Act cannot take a stand contrary to the trade notices issued by the competent authorities under the said Act. According to the learned Senior Counsel, in the light of Ext.P7 trade notice issued by the Commissioner of Customs (Import), Mumbai, the first respondent ought to have permitted the petitioner to clear their cargo in terms of the said notice. Placing reliance on the decision of the Apex Court in Paper Products Ltd. v. Commissioner of Central Excise [1999 (7) SCC 84], the learned Senior Counsel further contended that circulars issued by the Central Board of Excise and Customs are binding on the authorities under the Customs Act. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Trade Act on 01.01.2015 does not apply to EDC. It was pointed out that the restriction mentioned in the notification applies only to the goods mentioned in Chapter 38 of Schedule-1 of the import policy declared by the Central Government as Indian Trade Clarification ('the ITC' for short). According to the learned Senior Counsel, EDC is only an item covered by Chapter 29 of Schedule-1 of the ITC. It was also pointed out by the learned Senior Counsel that the Central Government has imposed a restriction on 07.04.2016 in terms of a notification issued under Section 5 of the Foreign Trade Act for import of Boric Acid, another insecticide included in the Schedule to the Act, to the effect that its import will be permitted only on the basis of import permit issued by the Central Insecticides Board and Registration Committee under the Act. It was pointed out that an issue arose before this Court as to whether such a restriction could be imposed in the light of Section 38 of the Act in relation to an insecticide imported into India for a non-insecticidal purpose. The said issue was answered in the affirmative by the Division Bench of this Court in Maliakkal Industrial Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1968 are unambiguous and leave no scope interpretation. Essentially, the exemption from the provisions of the said Act would apply to those insecticides that are used for household purposes etc. or for other than insecticidal purpose that are specified in the said Section 38 would be outside the ambit of the provisions contained in insecticides Act, 1968. The implication is that the clearance of such imported items would not be subject to the requirement of registration / import permit from CIB/RC." 4. Board desires that for the sake of uniformity the Custom Houses shall immediately align their local procedures in line with the above clarification. It is, however, clarified that the import of Boric Acid would continue to be governed by the specific instructions on the item that are currently in force. 5. Suitable public notice may be issued to guide the trade and industries." (underline supplied) As explicit from the extracted portion, Ext.P9 circular was intended for maintaining uniformity in the procedure to be followed by all the custom houses. In Steel Authority of India (supra), the Apex Court has held that custom authorities cannot take one stand in one State and an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per EXIM policy, the Tribunal set aside the confiscation in respect of Nickel Chloride and Copper Sulphide as well as penalty imposed thereon. The Tribunal also relied on the Section 38(1)(b) of Insecticides Act, 1968 and held that import of insecticides for non-insecticidal use is not subject to the restrictions contained in the Act. Therefore, we do not find any irregularity in the order passed by the Tribunal in order to interfere with the same." 12. Coming to Ext.P10 decision of the Registration Committee constituted under Section 5 of the Act, it is seen that in terms of the said decision, the Registration Committee has only prescribed a proforma for issuance of licence for import of insecticides for noninsecticidal purposes. The decision, if any, taken by the Registration Committee insisting import permit for import of insecticides for non-insecticidal purposes is not placed on record. Be that as it may, actions of statutory authorities must be confined to the four corners of the statute, otherwise the same would be nullity. In so far as insecticides intended for non-insecticidal purposes are brought out of the Act in terms of Section 38 therein, Ext.P10 decision of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2012 - Schedule - 1 (Import Policy) are being notified." In terms of the said notification, an additional condition was inserted in Chapter 38 of Schedule 1 of ITC. In the light of the said notification, there cannot be any doubt that after 01/01/2015, the date of the notification, import of goods covered by Chapter 38 of Schedule-1 of the ITC is governed by the said condition as well. It is seen that EDC is a substance included in Chapter 29 of Schedule-1 of ITC dealing with organic chemicals against EXIM Code 2903 15 00. There is no condition similar to the conditions covered by the notification dated 01/01/2015 in Chapter 29 of Schedule-1 of ITC. As such, the notification dated 01/01/2015 may not have any application as far as the import of EDC is concerned. 14. The learned Standing Counsel for the first respondent, placing reliance on the goods mentioned against EXIM code 3808 and its sub-headings 52 and 89 in Chapter 38 of Schedule-1 of ITC, submitted that EDC would fall under the said goods and therefore, the petitioner is bound by the condition incorporated in Chapter 38 in terms of the notification dated 01/01/2015. The goods falling under EXIM code 3808 and its sub-hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plantgrowth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles alone would fall under heading 3808. EDC imported by the petitioner being not a product put up in forms or packings for retail sale or as preparations or articles and since EDC is specifically included as an item in Chapter 29 of Schedule-1 of ITC, it cannot be contended that the same would fall under heading 3808 of Chapter 38 of Schedule-1 of ITC. 15. The contention raised by the learned Standing Counsel for the first respondent, relying on the Insecticides (Fourth Amendment) Rules, 2017 is also without substance as it is well settled that conferment of Rule making power by an Act does not enable the Rule making authority to make a Rule that travels beyond the scope of the enabling Act. (See Additional District Magistrate (Rev.) Delhi Administration V. Siri Ram [(2000) 5 Supreme Court Cases 451)] For the reasons stated above, the writ petition is allowed, Ext.P11 notice is quashed and the first respondent is directed to permit the petitioner to clear consignments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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