Union of India Vs Agricas LLP and Others etc. (Supreme Court)
In the instant case, the Writ Petition is filed by challenging the imposition of restrictions on import of Peas and pulses.
As per petitioner, the notifications issued by the DGFT had the effect of modifying or amending the EXIM policy as the specified items were withdrawn from the free category and moved to restricted category. But, the DGFT, a statutory authority under the provisions of FTDR Act, was not authorised to authenticate/issue an order amending or modifying the EXIM policy as this power vests with the Central Government as per the FTDR Act, which states that powers exercisable under Section 3, 5,15,16 and 19 of the FTDR Act cannot be delegated to the DGFT or any other officer subordinate to the Director General.
Supreme Court states that the importers rely upon the interim orders passed by the High Court’s whereas on the date when they filed the Writ Petitions and had obtained interim orders, the Madras High Court had dismissed the Writ Petition upholding the notification. Similarly, the High Court of adjudicature at Bombay, High Court of Gujarat and the High Court of Madhya Pradesh had dismissed the Writ Petitions filed before them and upheld the notifications and the trade notices. Notwithstanding the dismissals, the importers took their chance, obviously for personal gains and profits. They would accordingly face the consequences in law. In these circumstances, the importers it cannot be said had bona fide belief in the right pleaded. Accordingly, SC uphold the impugned notifications and the trade notices and reject the challenge made by the importers. Further they state that the DGFT is an authority constituted under the FTDR Act and appointed by the Central Government to advise them on foreign trade policy and is responsible for carrying out that policy.
FULL TEXT OF THE SUPREME COURT JUDGEMENT
Applications seeking intervention/impleadment are allowed.
2. Considering the nature of controversy involved, this Court, with the consent of the counsels for the parties, vide order dated 29th June 2020 had deemed it appropriate to hear and decide challenge to the validity of the notifications dated 29th March 2019 bearing S.O. Numbers. 1478-E,1479-E, 1480-E and 1481-E pending in several Writ Petitions filed before different High Courts. We have also examined and decided the connected challenge to the Trade Notice dated 16th April 2019 issued by the Directorate General of Foreign Trade on the ground of excessive delegation as not being in accord with sub-section (2) to Section 3 read with the bar under sub-section (3) to Section 6 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as ‘FTDR Act’).
3. Accordingly, we had heard arguments and by this common judgment would be disposing of the respective Writ Petitions, subject matter of these Transfer Petitions. This decision would also apply to the Writ Petitions filed by the intervening applicants.
4. For the sake of convenience, we would be referring the Central Government and the authorities collectively as ‘the Union of India’ and the Writ Petitioners synchronously as ‘importers’. For clarity and wherever necessary we have referred to the Directorate General of Foreign Trade, as the ‘DGFT’. DGFT is an authority constituted under the FTDR Act and appointed by the Central Government to advise them on foreign trade policy and is responsible for carrying out that policy.
A. Factual background and legal issues.
5. The Union of India, vide Notification dated 29th March 2019, had exercised the powers conferred to it under Section 3 of the FTDR Act, read with paragraphs 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020 and amended the import policy conditions of items of Chapter 7 of the Indian Trade Classificatio`n (Harmonized System), 2017, Schedule-I (Import Policy) as under:
“S.O. 1478(E).- In exercise of powers conferred by section 3 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1922), read with paragraphs 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, the Central government hereby amends the Import Policy Conditions of items of Chapter 7 of the Indian Trade Classification (Harmonized System), 2017, Schedule-I (Import Policy), as under:
