TMI Blog2019 (2) TMI 1628X X X X Extracts X X X X X X X X Extracts X X X X ..... al airports. Even as per the FTP of India, sales undertaken from the said duty free shops are export and the duty free shop operator is the exporter. It is also worth to mention that COTPA itself provides for reasonable restriction wherever the legislature intended to impose such restriction. The exemption provided under section 32 of the COPTA for export of tobacco product is rightly conferred on the duty free shops and challenges to the provisions of the COPTA cannot be entertained - petition dismissed - decided against petitioner. - Crim. Public Interest Litigation St. NO. 3 Of 2019 - - - Dated:- 6-2-2019 - Ranjit More And Smt. Bharati H. Dangre, JJ. Mr. Anup Patil for the Petitioner. Mr. Vikram Nankani, Senior Advocate with Abhay Jadeja, Mr. Varun Satiya I/b Crawford Bayley Co., Mrs. P. P. Shinde, for the Respondent P. C. : 1. Rule. Rule made returnable forthwith. By consent, petition is forthwith taken up for final hearing. 2. This petition is filed in public interest seeking to strike down / read down sections 1(2), 7(3) and 32 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner relied upon the decision of Madhya Pradesh High Court in Vasu Clothing Private Limited v. Union of India (Judgment dated 17.12.2018 in Writ Petition No. 17999 of 2018). The Petitioner submitted that decision of this Court in A-1 Cuisines Pvt Limited v. Union of India (Judgment dated 28th November 2018 in Writ Petition [Nagpur bench] No. 8034 of 2018) and decision of the Apex Court in M/s. Ashoka Hotel (Indian Tourism Development Corporation Limited v. Assistant Commissioner of Commercial Taxes (2012) 3 SCC 204) are per incuriam and erroneous for not considering the territorial extent of India as per the Constitution of India. The Petitioner alleged that section 1(2) of COTPA is ambiguous. He submitted that sales by duty free shops, whether at arrival or departure terminals, are erroneously construed as exports , thereby erroneously extending the benefit of impugned section 32 of the COTPA. 4. Mr. Nankani, the learned senior counsel for Respondent No.2 opposed the petition by filing reply. He heavily relied upon the decision of the Apex Court in Ashoka (supra) and decision of this Court in A-1 Cuisines (supra) and submitted that it is settled position of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s / Export Promotion Tours / Showrooms Abroad / Duty Free Shops EOU/ EHTP / STP/ BTP are permitted to (i) export goods for holding / participating in exhibitions abroad with permission of DC. (ii) personal carriage of gold / silver / platinum jewellery, precious, semi precious stones, beads and articles. (iii) Export goods for display / sale in permitted shps set up abroad. (iv) Display / sell in permitted shops set up abroad, or in showrooms of their distributors/agents. (v) Set up showrooms/ retail outlets at International airports. 8. The above policy shows that the export oriented units which undertake to export their entire quantity of goods and services, are permitted to do so by setting up retail outlets, i.e., duty free shops, at international airports. Even as per the FTP of India, sales undertaken from the said duty free shops are export and the duty free shop operator is the exporter. It is also worth to mention that COTPA itself provides for reasonable restriction wherever the legislature intended to impose such restriction. 9. The Supreme Court in M/s. Ashoka (supra) has held thus : 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ru are beyond the customs frontiers of India i.e. they are not within the customs frontiers of India. 26. When any transaction takes place outside the customs frontiers of India, the transaction would be said to have taken place outside India. Though the transaction might take place within India but technically, looking to the provisions of Section 2(11) of the Customs Act and Article 286 of the Constitution, the said transaction would be said to have taken place outside India. In other words, it cannot be said that the goods are imported into the territory of India till the goods or the documents of title to the goods are brought into India. Admittedly, in the instant case, the goods had not been brought into the customs frontiers of India before the transaction of sales had taken place and, therefore, in our opinion, the transactions had taken place beyond or outside the custom frontiers of India. . The above observations of the Apex Court make it abundantly clear that duty free shops at International airports are deemed to be outside India or beyond the geographical area-territory of India and therefore for all purposes they are treated to be outside India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2578 of 2009) also granted final relief in favour of Respondent No. 2. If the legislative intent which is also supported by various precedents noted above, is not to extent the restriction under the COTPA to shops situated beyond India and not to apply the restrictions on passengers importing tobacco products, that is not trade or commerce. Even in GST regime, duty free shops at international airports are considered non taxable area and their sales whether at arrival or departure lounge are considered as export. 12. So far as the Petitioner's reliance on the decision of Vasu Clothing Private Limited (supra) and further contention that the judgment of the Apex Court in M/s. Ashoka (supra) and decision of this Court in A-1 Cuisines (supra) are per incuriam is concerned, we find no merit. It is settled position of law that it is not open for the High Court to declare a judgment passed by the Hon'ble Supreme Court of India as per incuriam. The Apex Court in South Central Railway Employees Co-op. Credit Society Employees Union v. B. Yashodabai (2015) 2 SCC 727) has observed thus : 16. We are of the view that it was not open to the High Court to hold tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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