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TMI Blog2008 (9) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... de its notification No.15 (RE-2008)/2004-2009, dated 04.06.2008, insofar as it restricts the free trade of Betal nuts for a value of Rs.35/ per kilo gram including C.I.F. value (Cost, Insurance and Freight) by notification dated 04.06.2008 as unconstitutional, arbitrary and violative of rights guaranteed under the Constitution. 2. Since the questions raised in all these writ petitions are one and the same, they were all heard together and a common order is passed. 3. Heard Mr. B. Kumar, learned Senior Counsel appearing for all the petitioners and Mr. C. Arul Vadivel@Sekar learned Assistant Solicitor General and perused the records. 4. At the time of admission in all these cases, interim orders were granted. It is only when the second respondent filed a vacate stay application supported by a counter affidavit, the matter was taken up for final hearing by the consent of parties. 5. It is stated by the petitioners that the petitioners are all importers of betal nuts and spices. The petitioners were importing betal nuts from the countries such as Indonesia and Sri Lanka, since there is a great deal of demand in India. The local production in this country of betal nuts do not even m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy is arbitrary. It is further submitted that the Foreign Trade (Development and Regulation) Act 1992, (for short 'FTDR') does not authorise the second respondent to restrict the import of betel nuts on the basis of fixing a minimum import price. It is also stated that the petitioners have long term contracts with their foreign suppliers and pursuant to the contracts, goods have arrived in various ports and therefore, they should be allowed to import without insisting the price of the goods fixed at Rs.35/- (C.I.F) per kg. 10. In support of their submissions, the petitioners have also filed various agreements between them and the foreign suppliers. The trade commitments that they have with the foreign suppliers were also mentioned in those correspondences. It is in the light of these submissions, they wanted their writ petitions to be allowed and consequently, the impugned notifications should be set aside. 11. In the counter affidavit filed by the second respondent the said policy is sought to be supported on the basis that the low price of import of betel nuts was causing declining the domestic prices and consequential loss for the domestic betel nut growers.&n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice or floor pricing or saving the local producers. (v)When admittedly the price available in the countries of import does not exceed Rs,15/- to Rs.20/- per kg, there is no question of fixing the price at Rs.35/- per kg (CIF). (vi)The importers of betel nuts such as the petitioners have not been informed as to what should be done with the money which will be found in the excess of the cost of import. This will only lead to fictitious billing, which is not the intention of a free import policy and it is not the power of Government to fix any price under FTDR, Act. (vii) Fixing the value of goods can be done only under the Customs Act and Customs Tariff Act. Those Acts also provide for an appointment of Directorate General of Safeguards. The Customs Tariff Act, 1975, provides for differential tariff including imposition of increased import duties under Section 8A imposition of Safeguards Duty under Section 8B and anti-dumping duties under Section 9A the Customs Tariff Act. It also provides for an appeal under Section 9C. (viii)The customs Act also provides for appointment of Customs Officers to decide the value of the import. Therefore, where there are ample provisions unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "for certain cases, an Act may be general and for certain other purposes, it may be special and the Court cannot blur a distinction when dealing with finer points of law." 17. In the light of the above, it was further submitted that the FTDR Act cannot be a special law with reference to a price fixation of an imported commodity and the power is available only under the provisions of other two enactments, i.e. the Customs Act and the Customs Tariff Act. 18. He further submitted that even assuming that any policy guideline is issued, such a guideline can be scrutinzed by this Court and it is not beyond the pale of judicial review conferred under Article 226 of the Constitution. The learned Senior Counsel referred to the decision of Supreme Court reported in Union of India and Others v. Dinesh Engineering Corporation and another, (2001) 8 SCC 491. The learned counsel placed reliance upon the following passage found in para 12 of the said order:- "12...There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r obvious reasons, granting of licences depends upon the policy prevailing on the date of the grant of the licence or permit. The authority concerned may be in a better position to have the overall picture of diverse factors to grant permit or refuse to grant permission to import or export goods. The decision, therefore, would be taken from diverse economic perspectives which the executive is in a better informed position unless, as we have stated earlier, the refusal is mala fide or is an abuse of the power in which event it is for the applicant to plead and prove to the satisfaction of the court that the refusal was vitiated by the above factors. 5..... When the Government is satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay down new policy. The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotment or utilisation of its finances in the public interest. It is equally, entitled, therefore, to issue or w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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