TMI Blog2023 (8) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred by Section 3 of FT(D R) Act, 1992, read with paragraphs 1.02 and 2.01 of the Foreign Trade Policy. It is also pertinent to note that, vide S.O.211(E) dated 16.01.2002, the President of India, in exercise of the powers conferred by clause(2) of Article 77 of the Constitution, has issued the Authentication(Orders and Other Instruments) Rules, 2002. By virtue of the said rules, the orders and other related instruments relating to the Directorate General of Foreign Trade made executed by the President can be authenticated by the DGFT, Additional DGFT, Export Commissioner or the Joint DGFT. As evident from the file notes pertaining to the impugned notifications, the decision to issue the notification was taken after discussing the matter with the Minister. Hence, there is substance in the contention that the notifications were issued by the Central Government in exercise of the powers conferred under Section 3 of the FT(D R) Act and the DGFT had only undertaken the ministerial act of publishing the notification. In such circumstances, mere publication of the notifications by the DGFT cannot lead to the presumption that the notifications were issued without the concurrence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional if it is meant to achieve a proper purpose and the measures taken are rationally connected to the purpose. Applying the proportionality principle, the restriction against import of pepper is found to be justified and unassailable. Petition dismissed. - THE HONOURABLE MR.JUSTICE V.G.ARUN FOR THE PETITIONER : BY ADV HARI KUMAR G NAIR, AKHIL SURESH, AAMIR SOHRAB M. M., M.S.SAJEEV KUMAR, LAKSHMI S KUMAR, A.N.JYOTHILEKSHMI, SRI.ANIL D. NAIR, SRI.ACHYUT K PADMARAJ, SRI.M.BALAGOPAL, SMT.R.DEVIKA ALAPPUZHA KUM.MEKHALA M.BENNY, SRI.R.SREEJITH, K.SRIKUMAR (SR.), SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.ALEX GEORGE CHAMAPPARAYIL SRI.TONY GEORGE KANNANTHANAM, JOHN VARGHESE, SONU AUGUSTINE, MANU S., ASG OF INDIA Girish Kumar V , M.GOPIKRISHNAN NAMBIAR, K.JOHN MATHAI, JOSON MANAVALAN KURYAN THOMAS, PAULOSE C. ABRAHAM RAJA KANNAN, PRANOY HARILAL, E.K.NANDAKUMAR (SR.) FOR THE RESPONDENTS : BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA, S.KRISHNA, P.G.JAYASHANKAR, MANU S., ASG OF INDIA, SHRI.K.SHRI HARI RAO, CGC DSGI S.MANU, SHRI.S.BIJU, CGC, SHRI.JAGADEESH LAKSHMAN, ASSISTANT SOLICITOR GENERAL, SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE CUSTOMS, SMT.C.G.PREETHA, CGC, SRI. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Growers Organisation. 4. The learned Counsel for the petitioners referred to Sections 3,5,6 and 19(3) of the FT(D R) Act to contend that the DGFT is incompetent to issue the impugned notifications, as only the Central Government has the power to prohibit, restrict or otherwise regulate the import or export of goods. Though the DGFT is delegated with certain powers under the Act, Section 6(3) specifically excludes the exercise of powers under Sections 3,5,15,16 and 19. Moreover, by virtue of the notifications, the Foreign Trade Policy stands amended, the power for which is vested with the Central Government under Section 5 of the Act. To bolster the challenge based on lack of competence and excessive delegation, the decisions in State of U.P. and Others v. Hindustan Aluminium Corporation and Others [(1979) 3 SCC 229] and Avinder Singh and Others v. State of Punjab and Others [(1979)1 SCC 137] are pressed into service. 5. Referring to the Constitutional provisions, it is pointed out that Article 53 of the Constitution vests the President with the executive power of the Union. The President can exercise that power directly or through subordinate officers, in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so require the piperine content of the imported pepper to be 6%, while under the Food Safety and Standards Act,2006 ('the FSS Act' for short), the piperine content for light black pepper is fixed at 4%. Here the contention is that, since Section 25 of the FSS Act makes the standards laid down by the Food Authority applicable for imports and Section 89 gives overriding effect to the provisions of the FSS Act, the notifications, insofar as they prescribe 6% piperine content, are void. 10. Learned Assistant Solicitor General, ably supported by the learned Counsel appearing for other respondents, submitted that the import of low quality pepper from countries like Sri Lanka and Vietnam at cheap rates had led to decline in the value of domestic pepper and resulted in the issuance of the impugned notifications. Further, the re-export of low quality pepper from India started affecting the credibility of Indian Black Pepper in the international market also. The impugned notifications were issued to remedy the situation. 11. The challenge on the ground of competence of the DGFT is met by drawing attention to the File Notes produced as Ext.R1(a) in W.P.(C) No.26804 of 2021, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d related laws. 13. It is contended that the policy decision to fix CIF value and MIP for pepper was taken by the Government after due deliberation. Being so, the power of judicial review cannot be extended to determine the correctness of such policy decision or to indulge in the exercise of finding out whether there could be a more appropriate or better alternative. To buttress this argument,the decisions in Parisons Agrotech Private Ltd. and Another v. Union of India and Others [2015 (9) SCC 657] and Marine Fins, Kochi v. Union of India and Others [2018 (3) KLT 71] are pressed into service. 14. Responding to the contention that the notifications are non est for reason of failure to lay them before the Parliament, it is argued that, non-laying of notification before both Houses of Parliament will not result in nullification of the notification. Support for this proposition is sought to be drawn from Atlas Cycle Industries Ltd. and Others v. The State of Haryana [1979 (2) SCC 196]. 15. Learned Senior Counsel appearing for the United Planters Association of Southern India (UPASI) and the learned Counsel for the other respondents adopted the arguments of the learned Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound of challenge regarding the competence of the DGFT to issue the notifications is put forth with reference to Sections 3,5 and 6 of the FT (D R) Act, extracted hereunder; 3. Powers to make provisions relating to imports and exports. (1) The Central Government may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing 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 subsection (2) applies shall be deemed to be goods the import or export of which has been pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to exercise any power under the Act by Order published in the official Gazette, except the powers under Sections 3, 5,15,16 and 19. The power to take decisions with respect to import, export and foreign trade policy being thus vested with the Central Government, the short question is whether the impugned notifications were issued by the DGFT on his own, or pursuant to the decision of the Central Government. 19. The notifications explicitly declare that they are issued by the Central Government in exercise of powers conferred by Section 3 of FT(D R) Act, 1992, read with paragraphs 1.02 and 2.01 of the Foreign Trade Policy. It is also pertinent to note that, vide S.O.211(E) dated 16.01.2002, the President of India, in exercise of the powers conferred by clause(2) of Article 77 of the Constitution, has issued the Authentication(Orders and Other Instruments) Rules, 2002. By virtue of the said rules, the orders and other related instruments relating to the Directorate General of Foreign Trade made executed by the President can be authenticated by the DGFT, Additional DGFT, Export Commissioner or the Joint DGFT. In Agricas LLP (supra) the Apex Court, answered the challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made by the President, shall not be called in question on the ground that it is not an order or an instrument made or executed by the President. Therefore, the contention of issuance of the impugned notification sans authority, cannot be sustained. As evident from the file notes pertaining to the impugned notifications, the decision to issue the notification was taken after discussing the matter with the Minister. Hence, there is substance in the contention that the notifications were issued by the Central Government in exercise of the powers conferred under Section 3 of the FT(D R) Act and the DGFT had only undertaken the ministerial act of publishing the notification. In such circumstances, mere publication of the notifications by the DGFT cannot lead to the presumption that the notifications were issued without the concurrence of the Central Government. Therefore, the challenge on the premise that the notifications were issued by the DGFT and not the Central Government is unsustainable. 20. The next contention is that the impugned notifications are non est for reason of failure to lay them before both Houses of Parliament, despite the specific requirement in Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase at hand is concerned, Section 19(3), the consequence for non-compliance with the requirement of placing the order or rule before both Houses of Parliament is not provided. The impact of non-laying, when no consequence for non-compliance is provided in the statute, was considered by the Apex Court in Atlas Cycle Industries (supra). Therein the appellants had challenged their prosecution for offences under the Essential Commodities Act, 1955 on the ground that the Control Order and the Notification, which formed the basis of their prosecution, did not have the force of law as they had not been laid before the Houses of Parliament as required under Section 3(6) of the Essential Commodities Act. The respondents conceded that the notification had not been placed before both Houses of Parliament, but contended that the provisions of sub-section (6) of Section 3 of the Act, requiring the placing of the order were directory and not mandatory and the omission to comply with that requirement will not have the effect of invalidating the notification. Along with other factors pertaining to Section 3(6) of the Essential Commodities Act, the Apex Court took note of the absence of consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such they are governed by the orders and notifications issued in accordance with the provisions of the Act governing the issuance of their licences. 24. With respect to the contention based on Section 89, it is to be noted that the overriding effect of the FSS Act is confined to other food related laws. Irrefutably, the FT(D R) Act is not a food related law for the FSS Act to have an overriding effect. Yet another relevant aspect is that, under the impugned notifications, the piperine content of light black pepper berries imported into India under Advance Authorisation Scheme for oleoresin alone is fixed as 6%. As the pepper imported under the Advance Authorisation Scheme is used for manufacturing oleoresin for the purpose of export, the article of food is not for consumption in India. Hence, Section 25 of the FSS Act is not attracted. 25. The contention regarding hostile discrimination based on the exemption from minimum CIF value of Rs.500/- granted to imports under Advance Authorisation Scheme, imports by 100% Export Oriented Units and Units in the Special Economic Zone, cannot also be sustained. It is to be noted that the entire quantity of pepper imported by the above th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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