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SUPREME COURT OF INDIA
A.M. Khanwilkar, Dinesh Maheshwari, JJ.
Union Of India & Ors. - Appellants
Versus
T.R. Mehra Etc. Etc. - Respondent
Civil Appeal Nos. 2036-2038 of 2011
Decided On : 21-08-2019
Imports - Foreign Trade (Development and Regulation) Act, 1992 - The court held that the quasi judicial order passed in exercise of powers under the Imports (Control) Order, 1986, was not saved by the provisions of the 1992 Act. The import of goods, which was prohibited under the 1986 Order, became free and open under the 1992 Act. Therefore, any action taken against the respondents based on the 1986 Order after the enactment of the 1992 Act could not stand the test of judicial scrutiny.
Fact of the Case:
The action taken against the respondents was based on an order dated 14.11.1986 passed by the Competent Authority under the Imports (Control) Order, 1986, regarding the import of goods by Obron Impex (Pvt.) Ltd. The import of goods by the respondents was in August 1997, after the enactment of the Foreign Trade (Development and Regulation) Act, 1992.
Finding of the Court:
The court found that the quasi judicial order passed under the 1986 Order was not saved by the provisions of the 1992 Act. The import of goods, which was prohibited under the 1986 Order, became free and open under the 1992 Act. Therefore, any action taken against the respondents based on the 1986 Order after the enactment of the 1992 Act could not stand the test of judicial scrutiny. The court concluded that the appeals must fail and dismissed them accordingly.
Issues: The main issue was whether the quasi judicial order passed under the Imports (Control) Order, 1986, could be enforced against the respondents for the import of goods after the enactment of the Foreign Trade (Development and Regulation) Act, 1992.
Ratio Decidendi: The court held that the quasi judicial order passed under the 1986 Order was not saved by the provisions of the 1992 Act. The import of goods, which was prohibited under the 1986 Order, became free and open under the 1992 Act. Therefore, any action taken against the respondents based on the 1986 Order after the enactment of the 1992 Act could not stand the test of judicial scrutiny.
Final Decision: The court dismissed the appeals, stating that no interference was required as the quasi judicial order passed under the repealed 1986 Order was not saved by the provisions of the 1992 Act and would be per se repugnant to the 1992 Act, defeating the spirit of opening the import regime for the stated goods.
ORDER
Heard learned counsel for the parties.
2. The action taken against the respondents was founded on order dated 14.11.1986 passed by the Competent Authority in exercise of powers conferred by Clause 8 (1) of the Imports (Control) Order, 1986 qua M/s. L.D. Textile Industries Ltd.
3. It is not in dispute that the import of goods by Obron Impex (Pvt.) Ltd. was in August, 1997. After coming into force of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as the 'Act'), indisputably, import of stated goods is in no way prohibited under that Act.
4. If so, the appellants must demonstrate that the Act provides for a savings clause to save the quasi judicial order passed by the Competent Authority in exercise of powers bestowed in it in terms of Imports (Control) Order, 1986. The provisions of the Act as rightly noted by the High Court, in no manner save the quasi judicial order. Moreso, when it had the effect of continuing prohibition regarding the import of goods otherwise made free and could be imported under the 1992 Act. Any other interpretation would result in validating the quasi judicial order issued in exercise of powers derived from the Statutory Order which itself stands repealed along with the repealed Act. In other words, the quasi judicial order dated 14.11.1986 is repugnant to the legislative intent behind the 1992 Act, whereby, import in respect of the stated goods has been made free and an open regime.
5. A fortiori, no action against the respondents in relation to import of stated goods after coming into force of the 1992 Act with effect from 17.08.1992, in reference to the order dated 14.11.1986 could be resorted to in law. The High Court has dealt with this contention exhaustively and, in our opinion, justly concluded that the show cause notice issued against the respondents on the basis of order passed by the Competent Authority dated 14.11.1986 cannot stand the test of judicial scrutiny.
6. Learned counsel for the appellants invited our attention to Section 20 of the Foreign Trade (Development and Regulation) Act, 1992. The same read thus:-
"20. Repeal and savings.(1) The Imports and Exports (Control) Act, 1947 (18 of 1947) and the Foreign Trade (Development and Regulation) Ordinance, 1992 (Ord. 11 of 1992) are hereby repealed.
(2) The repeal of the Imports and Exports (Control) Act, 1947 (18 of 1947) shall, however, not affect,
(a) the previous operation of the Act so repealed or anything duly done or suffered there under; or
(b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed; or
(c) any penalty, confiscation or punishment incurred in respect of any contravention under the Act so repealed; or
(d) any proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, confiscation or punishment as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty, confiscation or punishment may be imposed or made as if that Act had not been repealed.
(3) Notwithstanding the repeal of the Foreign Trade (Development and Regulation) Ordinance, 1992 (Ord. 11 of 1992), anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act."
7. However, the appellants are not in a position to point out as to how the subject order dated 14.11.1986 would be covered by the savings clause under sub-sections (2) or (3) of the Section 20 of the Act. Even the saving provision under the General Clauses Act will be of no avail to the appellants for the reasons mentioned hitherto.
8. In view of the above, no interference is required. For, a quasi judicial order passed in exercise of powers under the Statutory Order which stands repealed along with the repealed Act, is not saved especially when it will be per se repugnant to 1992 Act and defeat the spirit of opening of the import regime for the stat
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