2017 Supreme(Guj) 1751

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
AKIL KURESHI, BIREN VAISHNAV, JJ.
All India Ceramic Glaze and Glass Frit (Mixture) Manufacture & Ors. - Petitioners
Versus
Union of India & Ors. - Respondents
SPECIAL CIVIL APPLICATION NO. 9230 of 2008
Decided On : 27-07-2017

Headnote:

Insecticides Act,1968 -Petitioners have challenged a notification under which by amending the Schedule I (Imports) of the ITC(HS) Classifications of Export and Import Items, , the import of boric acid for non insecticidal purposes was made subject to import permit issued by the Central Insecticide Board and Registration Committee (“the Committee” for short ) under the Ministry of Agriculture. Brief facts are as under. Petitioner no.1 is an association of Ceramic Glaze and Glass Frit (Mixture) manufacturers. Petitioners no. 2 to 9 are its members. The members of the Association are engaged in manufacturing Ceramics Glaze and Glass Frit (Mixture). For such manufacturing activity, they require boric acid in large quantities. The boric acid we are informed is used for giving glaze to the tiles. The boric acid is also used in preparation of variety of insecticidal uses in agriculture. The boric acid thus has insecticidal and non insecticidal uses. The petitioners use boric acid for non insecticidal purposes. To meet with the requirement of boric acid, the petitioners would depend heavily on the imports. According to the petitioners, there are few manufacturers of boric acid in India. The price of boric acid in the local market is much higher than in the international market. For long, import of boric acid was freely allowed and was subject to no conditions. The local manufactures however, represented the Government of India to restrict the imports so that the users of boric acid like the petitioners would be compelled to purchase boric acid from them. It is pointed out that, Borax Manufacturers Association of India made a detailed representation to the Ministry of Agriculture .Multinationals have set up Boric Acid manufacturing plants, at the mining areas of Natural Boron Ore itself. Their every effort is to sell value added finished product and discourage supplies of raw material to the Indian manufacturers, in order to discourage value addition in India and maximize revenues in their own country. As a result, the labour intensive Indian manufacturers of Boric Acid are slowly closing down with thousands of workers loosing their employment. insecticides Act does not permit clearing of import consignments by customs, on the basis of an undertaking provided by the importer regarding the end use of Boric Acid. It is an admitted fact that the Customs department is not in a position to verify/regulate the end use of a product after the consignments are cleared -Held We also do not find any grounds to accept factual mala fide. It may be that in this particular case, the Government of India was activated into action on the representations made by the local manufacturers of boric acid. That by itself however, would not necessary imply mala fide. In a democratic form of governance, the administration is always open to representations from the various quarters. If a certain relevant fact is brought to the notice of the administration through representation from a particular quarter, and if such representation is taken into account even for framing the policy, such policy cannot be tainted as mala fide without there being anything more on record. The Government of India has pointed out that such import conditions are applied. It is also pointed out that not only the boric acid but all other insecticides are subject to similar regulatory measures. There is nothing peculiar about import of boric acid. petitioners as well as the private respondents i.e. the local manufacturers of boric acid have presented different data of import permission sought and granted. These figures show a huge cleavage. The data produced by the petitioners would suggest permission was granted for a small proportion of the quantity demanded by the importer. Whereas the data produced by the respondents would suggest, much of the demand was met. Such data picked for a small period without anything further cannot establish mala fides nor lack of it. In any case, policy formation through subordinate legislation is entirely different from its implementation. The former may be perfectly valid whereas the later may be defective. In the result, the petition is dismissed -Petition is Dismissed.