TMI Blog2019 (12) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... P for exporters. HELD THAT:- The Commission observes that STEs deal with export/import of products in pursuance of government policies in relation to products/industries considered to have strategic importance. The Commission also notes that BSMs, inter alia, have space, defence and atomic applications and have also been specified as Atomic Minerals under the provisions of the MMDR Act and Prescribed Substances under the provisions of the Atomic Energy Act, 1962 - The Commission observes that the impugned allegations arise from the policy formulation by OP-1 regarding export of BSMs under the provisions of FTDR Act and FTP and implementation thereof by OP-3. Having looked into the nature of allegations raised by Informants the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Tamil Nadu. Informant-2 is the proprietor of M/s Phoenix Agency and a dealer/trader in BSMs having an Importer Exporter Code (IEC) allotted by Madurai regional office of DGFT in May 2016. 3. As per the website of OP-1, it is an attached office of the Ministry of Commerce and Industry and is responsible for formulating and implementing the Foreign Trade Policy (FTP) of the country. It also provides facilitation to exporters about developments in international trade, such as WTO agreements, anti-dumping issues, etc. OP-1 is headed by OP-2. As per the Information, OP-3 is a wholly owned public sector undertaking (PSU) under the administrative control of Department of Atomic Energy (DAE), GOI. Presently, it has mineral process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently, as per GOI Resolution dated 06.10.1998 issued by DAE, most of the restrictions on private participation were removed and foreign direct investment (FDI) up to 74 per cent (subject to prior approval by GOI) for extracting and trading of BSMs was allowed. Further, vide Press Note 6/2008 dated 12.03.2008, Government permitted FDI up to 100 per cent in mining and mineral separation of titanium bearing minerals and ores, value addition and integrated activities subject to sectoral regulations and Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act). Specifically, Part B of the First schedule of MMDR Act deals with Atomic Minerals, which corresponds to Prescribed Substances under the Atomic Energy Act, 1962. 7. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -3; contact details and passport details of exporters; details of cases against directors or partners or proprietors of exporters; information regarding ban, if any, on exporter's business by GOI or any Government Authority or PSU etc; ii. OP-3, being a PSU and a competitor, can ban an exporter on any pretext, making the latter ineligible for export; iii. the purpose of SOP and the appointment of OP-3 as an STE, is to kill competition; and, iv. Notification and SOP not only amount to abuse of dominant position in the form of unfair and discriminatory practices by OP-3 but also create barriers to exporters. 10. Informants have alleged that aforesaid behaviour of OPs amount to violation of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Energy Act, 1962. 15. The Commission observes that the impugned allegations arise from the policy formulation by OP-1 regarding export of BSMs under the provisions of FTDR Act and FTP and implementation thereof by OP-3. Having looked into the nature of allegations raised by Informants the Commission is of the considered view that change in export policy by OP-1 in pursuance of its statutory duties and implementation thereof by OP-3 are not amenable for examination within the framework of Section 4 of the Act. 16. In view of the foregoing, the Commission is of the view that no case of contravention of the provisions of the Act is made out against OPs. Thus, the matter is ordered to be closed forthwith under the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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