TMI Blog2021 (1) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the proviso to Section 5 stipulates the issuance of a separate notification for the applicability of the Trade Notification or in any exemption, modifications and adaptations by a specific notification in the official Gazette. Notification No.8/2015-20, dated 12.06.2019, which was issued in exercise of power conferred by Section 3 of the FTDR Act read with paragraph 1.02 and 2.01 of the FTP 2015-2020, which, in the considered opinion of this Court, is an amendment in import policy conditions of cashew kernels both broken and whole. This Court is also of the view that any further amendment or clarification of this nature should also be made only as per Section 3 and not by a mere notice, which is not in accordance with the Statute. A reading of the Notification and subsequent Trade Notice makes it clear that Notification No.8/2015-20, dated 12.06.2019, enhancing the MIP of the broken and whole cashew kernels, wherein, the Trade Notice No.50/2019-20, dated 14.02.2020 states that the same is not made applicable to the EOUs and SEZs, which is certainly an amendment to the Trade Notification and it is cannot be stated that it is a mere elaboration, information or clarification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of customs duty alone. A Minimum Import Price (MIP) was introduced on cashew in 2013 by the respondents fixing the rate of ₹ 288/- per kg and ₹ 400/- per kg for broken and whole cashew kernels respectively. The said MIP was also applicable to Special Economic Zones (SEZs) and Export Oriented Units (EOUs) as well. 2.3. The African countries, where raw cashew is available in plenty, provide subsidy and incentives to the tune of 50% and above on export of their products and those countries started processing. As these products did not have an international market, they found their way into India through the channels and was exported to the international market branding them as Indian products, as Indian cashew has value and acceptability in the market. Thus, the dealers in import of cashew from Africa enjoyed the subsidies given by the African Government, imported the same into India and exported it using the Indian brand. India is the only market for broken cashew kernel and no other country consumes broken cashew kernels. This was an added advantage to import broken cashew kernels from Africa, which would be separated in India and whole cashew kernels are exported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creasing exports. (2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods or services or technology : Provided that the provisions of this sub-section shall be applicable, in case of import or export of services or technology, only when the service or technology provider is availing benefits under the foreign trade policy or is dealing with specified services or specified technologies. (3) All goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly. (4) Without prejudice to anything contained in any other law, rule, regulation, notification or order, no permit or licence shall be necessary for import or export of any goods, nor any goods shall be prohibited for import or export except, as may be required under this Act, or ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso resulted in lower returns of cashew farmers as low priced cashew was otherwise available in the market. 9. The learned counsel for the petitioner would submit that a Trade Notice is one by which the Government informs the public at large and the same cannot be issued to amend the Notification issued in terms of Section 3 of the FTDR Act and therefore, the impugned Trade Notice has to be quashed. 9.1. In support of his contention, learned counsel for the petitioner relied on the following judgments : 9.2. In State of Bihar and Another V. J.A.C.Saldanha and others, (1980) 1 SCC 554 , it has been held as follows : 17. ...... It was incidentally submitted that it is an undisputed dictum of law that when a statute requires a thing to be done in a certain manner it shall be done in that manner alone and the court would not expect its being done in some other manner (see State of Gujarat v. Shantilal Mangaldas, (1969) 1 SCC 509. Expounding the submission it was stated that sub-section (8) of Section 173 clearly indicates the power of further investigation after submission of a report and that power is conferred on the officer in charge of a police station only and, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at all. The origin of this rule is traceable to the decision in Taylor v. Taylor [(1875) 1 Ch D 426 : 45 LJCh 373] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [(1936) 63 IA 372 : AIR 1936 PC 253] who stated as under: [W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. 9.5. A reading of the above decisions only would go to show that if statutorily a particular thing has to be done in a particular way, it shall be deemed to have prohibited being done in any other way. Though the Government is at liberty take a policy decision, it has to be done, as mandated under the relevant Statute. 10. Similarly, in the case of hand also, Notification No.8/2015-20, dated 12.06.2019, which was issued in exercise of power conferred by Section 3 of the FTDR Act read with paragraph 1.02 and 2.01 of the FTP 2015-2020, which, in the considered opinion of this Court, is an amendment in import policy conditions of cashew kernels both broken and whole. This Court is also of the view that any further amendment or clarification of this nature should also be made only as per Section 3 and not by a mere notice, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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