The main legal point established in the judgment is that a Trade Notice cannot be issued to amend a Notification under the FTDR Act, and any amendment must be made in accordance with the statutory procedure.

JUDGMENT :

(Prayer: Writ Petitions filed under Article 226 of the Constitution of India praying for a Writ of Certiorari and call for the records pertaining to the impugned Trade Notice No.50/2019-20 dated 14.02.2020 issued by the third with the approval of the second respondent in File No.01/89/80/M-1898/AM03/PC-2[A]/P-16241) and quash the same.)

1. The question that has to be decided in the instant writ petition is whether a Trade Notification can be amended by a Trade Notice in terms of Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 (in short, “the FTDR Act”).

2. The short facts relevant for the decision of this writ petition are as follows :

2.1. The second respondent - the Director General of Foreign Trade, had issued Notification No.8/2015-20, dated 12.06.2019 prohibiting the impart of broken cashew kernels and whole cashew kernels, subject to a minimum import price of Rs.680/- per kg for broken cashew kernels and Rs.720/- per kg for whole cashew kernels. Subsequently, upon instructions of the second respondent, the third respondent had issued Trade Notice No.50/2019-20, dated 14.02.2020, wherein, the rigors introduced in Notification No.8/2015-20, dated 12.06.2019 are taken away.

2.2. It is the case of the petitioner that once a notification is issued under Section 3 of the FTDR Act read with Foreign Trade Policy, a Trade Notice cannot be issued to amend the rigor of the same. It is stated that originally there were no conditions prescribed for import of cashew kernels either broken or whole and the import was free subject to payment of customs duty alone. A Minimum Import Price (MIP) was introduced on cashew in 2013 by the respondents fixing the rate of Rs.288/- per kg and Rs.400/- per kg for broken and whole cashew kernels respectively. The said MIP was also applicable to Special Economic Zones (SEZs) and Export Oriented Units (EOUs) as well.

2.3. The African countries, where raw cashew is available in plenty, provide subsidy and incentives to the tune of 50% and above on export of their products and those countries started processing. As these products did not have an international market, they found their way into India through the channels and was exported to the international market branding them as Indian products, as Indian cashew has value and acceptability in the market. Thus, the dealers in import of cashew from Africa enjoyed the subsidies given by the African Government, imported the same into India and exported it using the Indian brand. India is the only market for broken cashew kernel and no other country consumes broken cashew kernels. This was an added advantage to import broken cashew kernels from Africa, which would be separated in India and whole cashew kernels are exported from India. This resulted in poor quality cashew kernels being pumped into India. Hence, to protect the Indian market Notification No.8/2015-20, dated 12.06.2019 came to be issued.

2.4. It is further stated that under the pretext of job work, the imported cashew kernel was diverted into local market in majority of the cases and sold her in cheap prices. The re-exporters also enjoyed all the export benefits that are available to the trade. This kind of imports of broken cashew kernels led many of cashew units here to closure and only to remove such anomalies, the notification dated 12.06.2019 was issued in terms of Section 3 of FTDR Act and in terms of paragraph 1.02 and 2.01 of Foreign Trade Policy.

2.5. While so, the impugned Trade Notice No.50/2019-20, dated 14.02.2020 was issued clarifying that the MIP on cashew kernel is not applicable for imports by 100% units EOUs and the SEZs. The said Trade Notice is questioned in this writ petition on the ground that a Trade Notice cannot amend a notification issued under Section 3 of the FTDR Act and the same can be done only by issuance of another notification.

3. The writ petition was resisted by the respondents placing reliance on Section 5 of the FTDR Act, which empowe