TMI Blog2018 (10) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... r any import permit under the Insecticides Act for the purpose of import of insecticides included in the Schedule under the Act; when such import is for non-insecticidal purposes. The exemption under Section 38 takes any goods imported for non-insecticidal purposes even if included in the Schedule to the Act, out of the coverage of the Act and Rules prescribed thereunder. In Maliakkal Industrial Enterprises [2015 (11) TMI 1027 - KERALA HIGH COURT] the issue dealt with was import of Boric Acid, admittedly an insecticide, requiring a permit even if it is for non-insecticidal purposes. However there a notification was issued by the Central Government under the Foreign Trade Act insisting on an import permit from the RC constituted under the Insecticides Act - The requirement for an import permit in Maliakkal Industrial Enterprises was upheld only in the context of a statutory requirement having been made under the Foreign Trade Act, which is absent in the present case. The object of the Insecticides Act though salutary, there is not enough safeguards provided by the Act or power conferred on the executive government to deal with substances coming under the Schedule of the Insec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dal purposes being exempted under Section 38 of the Insecticides Act, there could not be any insistence for an import permit as decided by the RC. The powers of the RC as conferred by the Act and Rules, does not extend to insistence of a permit under the Insecticides Act for a purpose which is clearly exempted from the provisions of the said Act. Before the learned Single Judge, the appellants contended that EDC is included as an insecticide under the Schedule to the Act and, hence, the provisions of the Act would apply to the import. It was also contended that a notification was issued by the Central Government on 01.01.2015 under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 [for brevity Foreign Trade Act ]; in terms of which import permit is insisted from the RC for import of insecticides even for non-insecticidal purposes. Reliance was also placed on the decision in Union of India Others v. Maliakkal Industrial Enterprises [ILR 2014 (3) Ker. 387]. 4. The learned Single Judge found that there is no dispute that the importer imports EDC for a non-insecticidal purpose. Exhibit P7 trade notice issued by the competent authority under the Customs Act w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn Trade Act. 6. In the appeal, the learned Additional Solicitor General, as a preliminary objection, pointed out that the challenge is against Exhibit P11 notice, which was been issued on the basis of the decision of the RC, which decision is not challenged herein. To urge his contention, the learned Additional Solicitor General places reliance on Pune Municipal Corporation v. State of Maharashtra [(2007) 5 SCC 211]. We are of the opinion that the aforesaid decision or the law declared thereunder would not apply to the present case for more than one reason. Therein the proceedings were under an Urban Land (Ceiling and Regulation) Act, which prescribed an elaborate procedure for take over and vesting of excess lands. The land holders having filed a statement of the lands held by them, the Competent Authority prepared a draft statement, which was sought to be served but was returned 'undelivered'. Service was deemed since notice was sent properly and when none appeared for enquiry the notice stood finalised. Then final statement was drawn up and a notification issued calling for objections pursuant to which notification was issued vesting the land with the State. Later, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (d) of Section 111 is pointed out to contend that any goods imported contrary to any prohibition imposed under the Customs Act or any other law would be liable to confiscation under the Customs Act. Section 3 of the Foreign Trade Act is pointed out, wherein the Central Government has been conferred with the power to prohibit, restrict or otherwise regulate the import or export of goods or services or technology in all cases or in specified classes of cases. Section 3 confers power on the Central Government to make an Order, by publication in the Official Gazette, under sub-section (2), prohibiting, restricting or otherwise regulating import or export of goods, services or technology. On such order made, by virtue of sub-section (3), it is deemed to be a prohibition, under the Customs Act. It is admitted that under the ITC, whatever items have been declared under the FTP as free are those items which do not require any licence/authorisation/permission from the Director General of Foreign Trade [DGFT]. However, this does not fetter any provision or condition being prescribed in any other enactment. This would also not preclude the Central Government from making a condition or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h advances such intention avoiding any mischief that may be present due to shoddy drafting. The learned Additional Solicitor General relies on State of Tamil Nadu v. Hind Stone [(1981) 2 SCC 205], Girdhari Lal and Sons v. Balbir Nath Mathur [(1986) 2 SCC 237] and Balram Kumawat v. Union of India [(2003) 7 SCC 628] to buttress the above contention. 11. The Insecticides Act having been enacted with the avowed object of avoiding risk to human beings and animals by indiscriminate use of insecticides, there should be a proper monitoring of insecticides used for non-insecticidal purposes also. When huge quantities of insecticides are imported purportedly for the purpose of a manufacturing process and used as a raw material, there should be a monitoring of such activity and it should be ensured that the end use to which the imported goods are put to, is of a raw material in the manufacturing process. The learned Additional Solicitor General urge that the requirement be upheld. 12. At the outset we have to express our helplessness in not being able to place our hands on or put our eyes to, any requirement for import permit for import of EDC, either in the Insecticides Act, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnments on the risk to human beings or animals in the use of the insecticides and the safety measures necessary to prevent such risk [clause (a)]. Clause (b) includes the aspects of manufacture, sale, storage, transport and distribution of insecticides with a view to ensure safety to human beings or animals. The role of the CIB is only advisory. Section 5 of the Insecticides Act requires constitution of a RC with a Chairman and not more than five persons as Members, including the Drugs Controller of India and the Plant Protection Advisor to the Government of India. The functions, as per the Act, is to register insecticides and to perform such other functions as are assigned to it by or under the Act. The rule making power under Section 36 delineates the various aspects on which rules may be prescribed, under clauses (a) to (ze) of sub-section (2). Suffice it to notice that there is no specific power conferred on the Central Government to make rules as to the exemption provided under Section 38. It has also to be noticed that even if the generality of power conferred on the Central Government, to make rules, is taken account of, the Rules do not prescribe any measure by which the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 30.07.2018, which overruled the earlier declaration of law with respect to exemption notifications, also would not be applicable. The Constitution Bench reiterated the law declared as to exemption notifications requiring strict interpretation and the burden of proving eligibility being squarely on the assessee; to prove that his case come within the parameters of exemption clause or exemption notification. The decision took a different path insofar as the ambiguities in exemption notifications not enabling the authorities or Courts to lean in favour of the assessee. It was held that in the event of an ambiguity, the interpretation should be in favour of the Revenue. In the present case, there is absolutely no ambiguity pointed out insofar as the provision for exemption or the conditions under which such exemption has to be granted. There is, in fact, no condition prescribed and the minute the substance is used for an non-insecticidal purpose, the provisions of the Act are not applicable, under Section 38. 18. Maliakkal Industrial Enterprises was read to drive home, with emphasis the object of the enactment. The Division Bench had held that the primary concern of the enactme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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