TMI Blog2008 (9) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Senior Counsel for B. Satish Sundar, A. K. Jayaraj, and P. Dhanapal, for the Petitioner Shri C. Arul Vadivel@Sekar, Assistant Solicitor General, for the Respondent. [Order (Common)]. - The prayer in all these writ petitions is for declaring the policy condition imposed by the Director General of Foreign Trade vide 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gical value. vi. Conservation of exhaustible natural resources. vii. Protection of trade of fissionable material or material from which they are derived; and viii. Prevention of traffic in arms, ammunition and implements of war." 9. Since the policy introduced by the impugned notification does not advance any of the causes listed above, the said 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on any anti-dumping policy, the policy is arbitrary. (iv) After introducing a free policy the second respondent cannot create an artificial price fixing insofar as the local production satisfies only 10% of the requirement of the manufacturers. There is no necessity to introduce such artificial price fixing and label it as support price 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 dutie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d below:- "39. There can be a situation in law where the same statute is treated as a special statute vis-a-vis one legislation and again as a general statute vis-a-vis another legislation. Such situations do arise as held in Life Insurance Corporation of India v. D. J. Bahadur, AIR 1980 Supreme Court 2181: (1980 Lab IC 1218. It was there observed. "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 anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. He further placed reliance upon the judgment of the Supreme Court in P. T. R. Export (Madras) Pvt. Ltd v. Union of India and others [1996 (86) E.L.T. 3 (SC)] and relied upon the following passages found in paras 4 and 5:- "4. an applicant has no vested right to have export or import licences in terms of the policies in force at the date of his making application. For 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to by the Assistant Solicitor General will help the case of the respondents. The notifications impugned in these writ petitions are without jurisdiction and made without any application of mind and they are liable to be set aside by this Court. 26. This Court has already found that the second respondent has no power to issue the notification under Section 5 read with section 6(3) of the FTDR Act. Further, that the price fixing on an artificial basis cannot be done and that too under the FTDR Act. It has to be done in the light of the enactments such as the Customs Act and the Customs Tariff Act. No material data have been furnished for arriving at the figure of Rs.35/- per kilo (CIF) for the betel nuts imported. When the market for betel nuts requires 90% import and the free import policy has been evolved for such an import, the present notification goes contrary to such policy. It also makes the importers to commit further illegalities of retention of amounts in foreign Countries. 27. The other argument that sub-standard material are imported is not supported by any records. Further any sub-standard materials will be rejected by the Customs Department and even by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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