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2018 Supreme(Bom) 948
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, BHARATI H. DANGRE, JJ.
Taj Agro Commodities Pvt. Ltd. – Petitioner
Versus
Union of India – Respondent
Writ Petition (L) No. 1810, 2079, 1904, 1809, 1808, 1827 of 2018, With Chamber Summons (L) No. 239 of 2018
Decided On : 25-06-2018
Important Points
Subject
Administrative Law - Trade Regulations
Act Referred
CONSTITUTION OF INDIA : Art.14, Art.226
FOREIGN TRADE DEVELOPMENT AND REGULATION ACT : S.20, S.3, S.3(2), S.5
Headnote
Notification - Import Policy of Peas - Chapter 7 of the ITC (HS) 2017 - Summary of the Notification and Trade Notices
Fact of the Case:
The case involved a challenge to the Government of India's Notification No.4/2015-2020 dated 25th April, 2018, which amended the import policy of peas under Chapter 7 of the ITC (HS) 2017, Schedule-I. The petitioners, engaged in the import and export of agricultural products, challenged the subsequent trade notices issued by the Directorate General of Foreign Trade (DGFT) which restricted the import of peas and imposed conditions on advance payments for registration.
Finding of the Court:
The court found that the impugned trade notice did not amend the statutory notification but clarified the conditions specified in the notification. The court held that the trade notice was issued to remove confusion and did not contravene the substantive provisions of the notification or the Foreign Trade (Development) Regulation Act, 1992.
Issues: The main issue was whether the impugned trade notice amended the statutory notification and contravened the provisions of the Foreign Trade (Development) Regulation Act, 1992.
Ratio Decidendi: The court held that the trade notice did not amend the statutory notification but provided clarification to remove confusion. It found that the trade notice was consistent with the conditions specified in the notification and did not contravene the substantive provisions of the Act.
Final Decision: The court dismissed the writ petitions challenging the trade notices and held that there would be no order as to costs.
For the Petitioner: Mr. Vikram Nankani, senior counsel with Mr. Prithwiraj Chaudhary i/b Ms. Sharon Patole WPL, Mr. V.A. Thorat, senior counsel with Ms. Prachi Tatke i/b Kamlesh Tiwari, Mr. Shyam Dewani with Mr. Chirag Chanani i/b Dewani and Associates
For the Intervenor : Mr. V. Sridharan, senior counsel with Mr. Prakash Shah, Ms. Laxmi Menon, Mr. Prasad Paranjape CHSWL
For the Respondent: Mr. Pradeep S. Jetly with Mr. Y.R. Mishra and Mr. D.P. Singh, Mr. Karan Adhik with Mr. Ram Ochani
S.C. Dharmadhikari, J.
1. In Writ Petition (L) No. 1810 of 2018, an affidavit is filed and a stand, which is stated to be a common one in all the petitions, is taken. Since we have heard the parties at length and extensive arguments have been canvassed, we dispose of these writ petitions finally.
2. We grant Rule in all these writ petitions. Respondents waive service.
3. The only question in these petitions under Article 226 of the Constitution of India is whether the Government of India, Ministry of Commerce and Industry, Department of Commerce, Directorate General of Foreign Trade's Notification No.4/215-220 dated 25th April, 2018, and particularly the Policy condition No.4 therein has been creating, according to some Regional authorities of the Directorate General of Foreign Trade, a situation where clarification was required to be obtained from the Government of India and particularly the Ministry as aforesaid.
4. We will take the facts from two petitions, one of which was argued by Mr. V.A. Thorat, learned senior counsel and another by Mr. Vikram Nankani, learned senior counsel.
5. In the writ petition argued by Mr. Thorat, being Writ Petition (L) No.2079 of 2018, Shadiram and Sons Private Limited, a company incorporated under section 56 has filed this petition against the Union of India through the Joint Secretary of Commerce, Director General of Foreign Trade (for short “DGFT”), the Joint Director General of Foreign Trade, the Zonal Additional Director General of Foreign Trade and the Commissioner of Customs.
6. The writ petition itself clarifies that the Union of India represented by this Ministry is entrusted with the responsibility of formulation and enforcement of foreign trade policy and export-import guidelines. The Directorate is a Directorate set up under the Foreign Trade (Development and Regulation) Act, 1992 (for short “FTDR Act”).
7. The petitioner is engaged in the business of import and export of agricultural products, including peas.
8. The petitioner entered into a contract with J.K. International Pty. Ltd. (the seller) for supply of yellow peas. A copy of this contract is annexed to the petition and marked as Exhibit-A. In terms of the contract, the petitioner says that he made the agreed advance payment of USD 100000 on 16th April, 2018, which is evidenced by a copy of the receipt and annexed as Exhibit-B. Then the petitioner made an application to the fourth respondent to register this contract against which advance payment was made prior to 25th April, 2018, by a letter, copy of which is at Exhibit-C dated 17th April, 2018.
9. In terms of the powers conferred under the FTDR Act, the second respondent amended the import policy pertaining to import of peas (yellow peas) by Notification dated 25th April, 2016. The emphasis in the writ petition is that this policy changed the categorization from free to restricted with regard to the subject product and further on the conditions mentioned in this Notification.
10. Then, it is claimed that in terms of this Notification, the petitioner was informed according to it by the DGFT officers that as a contract is entered into prior to 25th April 2018, for which the advance payment was made prior to this date, that is eligible to be registered with the officers of the DGFT as per the procedure prescribed. Then, there is reliance placed on a trade notice, copy of which is at Exhibit-E dated 9th May, 2018. It is stated that after the petitioner's application was processed, the Registration Certificate was granted on 14th May, 2018.
11. The complaint is that in total contrast to the earlier trade notice dated 9th May, 2018, as also contrary to the condition stipulated in the Notification dated 25th April, 2018, the impugned trade notice dated 18th May, 2018, has been issued and that curtailed what was the stipulation earlier and as understood by the trade so also
