2022 Supreme(Mad) 1055

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
J.Nisha Banu, N.Anand Venkatesh, JJ.
Union of India Represented by its Seceretary, Ministry of Commerce and Industry, Department of Commerce, Udyog Bhavan, New Delhi - Appellant
Vs.
M/s. Unik Traders - Respondent
W.A(MD)Nos.396 to 406 of 2009 and M.P(MD).Nos.2, 3, 3, 3, 3, 3, 3, 3, 3, 3 & 3 of 2009
Decided On : 28-10-2022

The Central Government had the power to prohibit, restrict or otherwise regulate import of goods under Section 3(2) of the Foreign Trade Act and the provisions of the Customs Act and the Customs Tariff Act mutatis mutandis would automatically apply. Hence, the principle of lex specialis derogat legi generali would not have any application to the case in hand.

Headnote:

The impugned Notification dated 04.06.2008 issued by the Director General of Foreign Trade (DGFT) was not ultra vires as it was issued by the Central Government by authenticating the DGFT to issue the same. The DGFT did not exercise any powers under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992. The Central Government had the power to prohibit, restrict or otherwise regulate import of goods under Section 3(2) of the Foreign Trade Act and the provisions of the Customs Act and the Customs Tariff Act mutatis mutandis would automatically apply. Hence, the principle of lex specialis derogat legi generali would not have any application to the case in hand.

Fact of the Case:

The Writ Petitioners were importers of betel nuts and spices. They were importing the betel nuts from various countries. Considering the local demand for the betel nuts, the import was made free and there were no restrictions except the customs duty to be paid on the imported betel nuts. The grievance of the Writ Petitioners was that through the impugned Notification issued by the Director General of Foreign Trade, the importers were directed to import the betel nuts provided that the c.i.f. value (minimum import price) of the betel nuts was fixed at Rs.35/- per kg. According to the petitioners, such fixation of price by issuing a Notification under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as "the Foreign Trade Act") by the Director General of Foreign Trade (DGFT) is arbitrary and unconstitutional and beyond the powers of the DGFT.

Finding of the Court:

The impugned Notification dated 04.06.2008 issued by the Director General of Foreign Trade (DGFT) was not ultra vires as it was issued by the Central Government by authenticating the DGFT to issue the same. The DGFT did not exercise any powers under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992. The Central Government had the power to prohibit, restrict or otherwise regulate import of goods under Section 3(2) of the Foreign Trade Act and the provisions of the Customs Act and the Customs Tariff Act mutatis mutandis would automatically apply. Hence, the principle of lex specialis derogat legi generali would not have any application to the case in hand.

Issues: (a) Whether the impugned Notification No.15(RE-2008)/2004-2009, dated 04.06.2008 was issued by the Director General of Foreign Trade (hereinafter referred to as "DGFT" for brevity), without jurisdiction, in view of the specific bar under Section 6 (3) of the Foreign Trade (Development and Regulation) Act, 1992 or whether the impugned notification was not issued by the DGFT by way of delegation and it was issued by the DGFT only on authentication by the Central Government, as per the Government of India (Allocation of Business) Rules, 1961? (b) Even if the notification is taken to have been issued by the DGFT by virtue of authentication by the Central Government, whether such authentication can be made, in view of the specific manner/procedure provided under Section 6(3) of the Foreign Trade (Development and Regulation) Act, 1992, and where the Foreign Trade (Development and Regulation) Act, 1992, prescribes a procedure to be done in a particular manner, it should be done only in that manner or not at all as held by the Hon-ble Apex Court in Babu Verghese and Others vs. Bar Council of Kerala and Others reported in AIR 1999 SC 1281, tracing this principle from the Judgment of Taylor vs. Taylor reported in (1875) 1 Ch D 426? (c) Even if the impugned notification is taken to have been issued by the DGFT by way of authentication by the Central Government, whether the Central Government is entitled to place restriction on the import of areca nuts and fix the value under the Foreign Trade (Development and Regulation) Act, 1992 or such restriction of imports and fixation of tariff can be carried out only in accordance with the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975 and as an ancillary issue, whether the Foreign Trade (Development and Regulation) Act, 1992 must be considered to be a General Act and the Customs Act, 1962 and the Customs Tariff Act, 1975 should be considered to be Special Acts and thereby, the principle of generalia specialibus non derogant (special things to derogate from the general things) will apply

Ratio Decidendi: The Central Government had the power to prohibit, restrict or otherwise regulate import of goods under Section 3(2) of the Foreign Trade Act and the provisions of the Customs Act and the Customs Tariff Act mutatis mutandis would automatically apply. Hence, the principle of lex specialis derogat legi generali would not have any application to the case in hand.

Final Decision: The impugned Notification dated 04.06.2008 issued by the Director General of Foreign Trade (DGFT) was not ultra vires as it was issued by the Central Government by authenticating the DGFT to issue the same. The DGFT did not exercise any powers under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992. The Central Government had the power to prohibit, restrict or otherwise regulate import of goods under Section 3(2) of the Foreign Trade Act and the provisions of the Customs Act and the Customs Tariff Act mutatis mutandis would automatically apply. Hence, the principle of lex specialis derogat legi generali would not have any application to the case in hand. Consequently, we interfere with the findings of the learned Single Judge and the common order passed in the batch of Writ Petitions, dated 08.09.2008,is hereby set aside and all the Writ Petitions stand dismissed.