TaxTMI 
TaxTMI 
2023 (10) TMI 183
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....tification imposes a prohibition on importation of a variety of cut flowers into India through all airports, save for the Chennai airport. The Petitioner contends that this regulatory measure discriminates against Delhi's flower traders by putting them in an unfavourable position relative to their Chennai-based counterparts. Moreover, they argue that the impugned notification infringes upon the Petitioner's rights under the Constitution of India, as it imposes an unreasonable constraint on the commercial activities undertaken by the members of the Petitioner-association. 2. The impugned notification is reproduced as under: "MINISTRY OF COMMERCE AND INDUSTRY (Department of Commerce) (DIRECTORATE GENERAL OF FOREIGN TRADE) NOTIFICATION New Delhi, the 9th July, 2020 No. 17/2015--2020 Subject: Amendment in import policy of cut flowers under HS Code 0603 of Chapter 6 of ITC (HS), 2017, Schedule -I (Import Policy). S.O. 2289(E).-In exercise of powers conferred by Section 3 of FT (D&R) Act, 1992, read with paragraph 1.02 and paragraph 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, the Central Government hereby inserts policy condition for import of cut....
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.... of Commerce Directorate General of Foreign Trade ........... Udyog Bhawan, New Delhi Dated 2nd March, 2021 ORDER Subject: Civil Writ Petition No. 8831/2020 entitled Fresh Fruit Flowers & Vegetables Trades Association v. DGFT filed in the Hon'ble High Court of Delhi. The Government of India amended the import policy of cut flowers under HS Code 0603 of chapter 6 of ITC (HS). 2017, Schedule - I (Import Policy) vide Notification No. 17/2015-2020 [S.O. 2289 (E)] dated 9th July, 2020 imposing port restrictions and allowing import of cut flowers through Chennai airport only. 2. The Fresh Fruits, Flowers and Vegetable Traders Association, Delhi filed a Writ Petition (C) 8831/2020 in the Hon'ble High Court of Delhi at New Delhi challenging the said Notification. The Hon'ble High Court of Delhi at New Delhi vide Order dated 18.12.2020 has directed as under: "In view of this limited submission, we hereby direct the concerned respondent authorities to decide the representations preferred by this petitioner, which are at Annexures P - 3 and P -4, or to treat this writ petition as a representation and decide the grievances ventilated by this petitioner in accordance wi....
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....n and clearance. Therefore, Cut flowers import requires 24x7 working of Plant Quarantine Station(s). Further, there is an increasing trend in export and import of agricultural commodities which require more technical manpower and time for inspection of the consignment to prevent the entry of exotic pests which is important to protect the bio-diversity of the country. There is about 20% increases in import / export inspections of consignments from 2015-16 to 2019-2020. Moreover, there is also increase of points of entry for imported commodities and export units to facilitate the trade and due to limitation of the availability technical manpower, for timely release of the consignments, the existing plant quarantine officials are over stretched. 5. After examining each issues raised in the representation dated 08.08.2020 and 09.09.2020 of the Petitioner and Writ Petition No.8831 /2020 and after affording Personal Hearing to the Petitioner, in consultation with the Department of Agriculture, Cooperation and Farmers Welfare, it is noted that the issues raised have been carefully gone through and in light of inputs provided by Department of Agriculture, Cooperation and Farmers Welfare,....
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....s fail to meet the legal tests set forth under Articles 14, 19, and 21 of the Constitution of India. Furthermore, the Petitioner-association's members have consistently paid the requisite fees and charges mandated by the MoCI, undermining any argument concerning manpower or facility shortages. 8. The impugned notification makes it impractical for Delhi NCR flower traders to source fresh cut flowers from Chennai. The inherent loss of freshness and quality due to the extended transit time, particularly after the first 24 hours from cutting, combined with transportation costs and potential damage in transit, significantly hampers their business operations. Beyond individual enterprises, this adverse impact extends to over 10,000 people whose livelihoods are compromised by the impugned notification and the order. Additionally, the Petitioner points out that the Government of India stands to lose substantial customs duty revenue. Between 01st April, 2017, and 31st March 2020, flower importers paid an estimated Rs.22 crores in customs duty, a figure that is now jeopardized due to reduced imports. Respondent's Counter-arguments, presented by Mr. Chetan Sharma, Additional Solicitor G....
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.... at both airports. 14. There exists a limited operational window at the Regional Plant Quarantine Station in Chennai (hereinafter "RPQS, Chennai"), which only functions from Monday to Saturday between 9:15 AM and 5:45 PM. In contrast, they cited information obtained through a Right to Information (RTI) request, which revealed that five to six Plant Quarantine officials (hereinafter "PQ Officials") were available around the clock at Delhi Airport, ensuring there were no backlogs or delays in clearance. 15. The Petitioner-association challenged the assertion of overstretched resources at Delhi Airport as being without basis. They noted that the contentious notification came into effect during a period when international flights were suspended due to COVID-19 lockdowns, thus halting the import of cut flowers. This fact undercuts the claim of resource constraints and delays, painting it as an unfounded rationale for the policy change. Proceedings thus far and Subsequent Developments 16. On 08th September, 2021, after an exhaustive hearing and careful scrutiny of DGFT's preliminary affidavit, this Court issued directions for further elaboration as under: "Having heard the lear....
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....16 to 2019-20, necessitating a redistribution of resources to prevent overburdening of ports. The affidavit clarified that various officials at the Delhi Airport were redeployed to handle other agricultural commodities and other duty points as required. This redistribution of resources, according to the DGFT, eased the pressure on an already overburdened port. Further, it was admitted that cut flowers require quick processing, however it was also emphasized that the country had already suffered economic losses due to invasive species. Accordingly, it was contended that channelling imports through Chennai Airport meets two objectives: rapid clearance of consignments and strict adherence to phytosanitary requirements. The DGFT argued that this was possible due to the technically efficient manpower available at Chennai Airport. Petitioner's Reply to DGFT's Subsequent Affidavit 18. The Petitioner-association, in its reply to DGFT's subsequent affidavit, disputed the notion that the staff was overburdened or that the import of cut flowers specifically required dedicated PQ officials at Delhi Airport. The Petitioner reiterated that they had been importing cut flowers through De....
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....ings 23. We have carefully examined the pleadings, the material on record and the contentions raised by the counsel. The crux of the matter is whether the Union Government, represented by its respective departments, is justified in allowing the importation of cut flowers exclusively through Chennai Airport. On one hand, the Petitioner argues that the directive is arbitrary, especially given the absence of any incidents involving exotic pests from imported cut flowers at Delhi Airport, and the purported sufficiency of staffing and facilities there. On the other hand, Government argues that the directive serves national interests related to bio-security and efficiently uses available resources. 24. The comprehensive affidavits submitted by the Respondent elucidate the reasoning behind the impugned notification and the order. While the Respondents agree upon the highly perishable nature of cut flowers and the necessity for time-sensitive clearance procedures, they assert that designating a singular port of entry would maximize operational efficiency. Specifically, this approach aims to expedite clearance processes and ensure rigorous adherence to phytosanitary inspection protocols, ....
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....into India's agricultural ecosystems, especially in regions with heightened floral production like the north. 29. The Respondents have compellingly spotlighted the escalated phytosanitary risks-specifically, the risk of introducing harmful exotic pests-associated with importing certain types of cut flowers. These risks, necessitate the allocation of specially-trained manpower and cutting-edge technological resources. The imperative of bio-security gains further emphasis in the context of the widespread ramifications witnessed by our country due to cross-border spread of COVID-19 virus. Bio-security is thus more than a health issue; it constitutes an integral facet of national security, given its direct impact on the ecological and environmental framework that is vital for growth of the country. The inadvertent introduction of invasive alien species or harmful exotic pests, whether through flowers, fruits, vegetables, or other pathways, poses a grave threat to the country's native agricultural produce and, by extension, its agrarian economy. 30. Tackling such complex and fluid risks requires specialized expertise and informed decision-making. For example, during severe locust ....
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....trained technical man power, besides modernization of laboratory facilities are being undertaken. Due to which, the interceptions of various pests from the import consignments of Cut flowers have been reported at Chennai. In a phased manner efforts will be made to strengthen technical manpower and laboratory facilities to other ports, including Delhi." [Emphasis Supplied] 32. In a subsequent affidavit dated 17th April, 2023, submitted by the Joint Director of Plant Quarantine at DPPQ&S, further details are provided regarding the upgrading of facilities at various ports. This affidavit explicitly states that improvements to the Plant Pathology and Entomology laboratory facilities are underway at several major Regional Plant Quarantine Stations (RPQSs) and airports, including those in Mumbai, Kolkata, Bangalore, and Delhi. The upgrades are described as a phased process, acknowledging that the department intends to progressively allocate trained technical manpower and state-of-the-art technical infrastructure. The relevant portion is extracted hereunder: "6. It is submitted that the upgradation of Plant Pathology and Entomology laboratory facilities at all the other major RPQSs/ A....