This writ petition is filed by the importers and dealers of committees questioning the orders/notifications by which the Exim Code was modified. The prayer in the leading WP.No.552 of 2019 is as follows:
To issue order or direction, more particularly, one in the nature of Writ of Mandamus, declaring the action of the Respondent Nos.2 and 3 in
(a)issue Notification No. 19/2015-2020 dated 05-08-201897 by modifying the Exim Code 07136000 which deals with Pigeon (peas (Cajanus cajan) / Toor Dal from FREE to RESTICTED and other interns falling in 07139010 and 07139090 regarding Split and other were also modified to Restricted as per the first modification as illegal, arbitrary, nonest in the eye of Law, without jurisdiction, Violation of Articles 14, 19(1)(g), and 21 of the Constitution of India and also violation of Section 6(3) of Foreign Trade (Development and Regulations) Act, 1992 and violation of the Principles of Natural Justice,
(b)issuing consequential Notification vide Notification No.22/2015-2020, dated 21/08/2017 and Notification No.06/2015-2020, dated 04/05/2018, modifying various pulses falling in Exim Code 07133100, 07139010, 07139090 from FREE to RESTRICTED. Illegal, arbitrary, nonest in the eye of Law, without jurisdiction, Violation of Articles 14, 19(1) (g), and 21 of the Constitution of India and also violation of Section 6(3) of Foreign Trade (Development and Regulations) Act, 1992 and violation of the Principles of Natural Justice,
(c)in Issuing consequential Trade Notice no.19/2018, dated 11/05/2018 and not permitting the Petitioner from importing Black Matpe falling in H.S. Code No.07133100 @20000 Metric Tons of FAQ and 20000 Metric Tons of SQ vide Sale Contract No.MIG / 0001/19, dated 02-01-2019 from MYINT GROUP PTE LTE., Trellis Tower – BLK, 700, Toa Payoh, Lorong 1, Lobby B #$ 29-07, Singapore 319773, as illegal, arbitrary, nonest in the eye of Law, without jurisdiction, Violation of Articles 14, 19(1) (g), and 21 of the Constitution of India and also violation of Section 6(3) of Foreign Trade (Development and Regulations) Act, 1992 and violation of the Principles of Natural Justice,
(d)and consequently set aside the said Notifications and Trade Notice and permit the Petitioner to import Black Matpe falling in H.S. Code No.07133100 vide Sale Contract No.MIG/0001/19 dated 02-01-2019 from MYINT GROUP PTE LTED., Trellis Tower – BLK, 700, Toa Payoh, Lorong Lobby B # 29-07, Singapore 319773, and pass such other order or orders as the Hon’ble Court may deems fit and proper in the interest of Justice.
This Court has heard Sri P.S.P.Suresh Kumar, learned counsel for the petitioner and the Assistant Solicitor General for the Union of India. The facts in all the cases are virtually the same. Hence, WP.No.552 of 2019 was taken up for final disposal with the consent of the learned counsel.
The petitioner was importing pulses from foreign countries and also exporting the same. The export, import policy (Exim policy) freely permitted the import of the material involved in this case, namely pigeon peas. They were imported under free category i.e. there were no restrictions on the import of this material. Petitioner entered into various contracts with foreign suppliers and was importing the pulses. Apart from the customs formality, learned counsel for the petitioner submits that they have had no other statutory obligation to fulfil. Suddenly, on 05.08.2017 orders were issued modifying the Exim code by which pigeon peas were moved from free category to restricted category. Similarly, various other modification orders were also issued by virtue of which, the pulses of all varieties which were till then freely imported have now been ‘restricted’. The petitioner is questioning these notifications on the ground that (a) the respondent No.1 alone can make the changes and that neither respondent No.2 nor respondent No.3 are entitled to make the changes. (b) as per the provisions of the Foreign Trade (Development and Regulations) Act, 1992 (for short ‘the Act’), it is only the Central Government under Section 3 of the Act that is empowered to pass orders and not respondent Nos.2 and 3. Learned counsel draws the attention of this Court to Section 5 of the Act, which gives the power to the Central Government to formulate and announce foreign trade policy. Relying on Section 6 of the said Act, the learned counsel submits that the Director General of Foreign Trade (DGFT), who is shown as respondent Nos.2 and 3 in the writ petitions is only appointed to carry out the policy. Learned counsel relies upon Section 6(3) of the Act, which is as follows:
“6(3) The Central Government may, by Order published in the Official Gazette, direct that any power exercisable by it under this Act (other than the powers under sections 3, 5, 15, 16 and 19) may also be exercised, in such cases and subject to such conditions, by the Director General or such other officer subordinate to the Director General, as may be specified in the order.” (Emphasis supplied)
Therefore, learned counsel argues that the power under Section 3 of the Act, cannot be exercised by the petitioners. This is the sum and substance of his challenge. He relies upon the judgment reported in Gulf Goans Hotels Co. Ltd., v. Union of India (2014 (10) SCC 673) and State of Uttaranchal v. Sunil Kumar Vaish (2011 (8) SCC 670). Relying on these two judgments, learned counsel argues that the impugned notification is not validly issued and that only the Central Government can issue the same. It is also his contention that Executive and State actions have to be taken in the name of the President or Governor as the case may be and that any other decision cannot be said to be an “order” that is issued by the Government of India. Consequently, he argues that the notification should be set aside as it is not properly authenticated.
In reply to this, learned Assistant Solicitor General draws the attention of this Court to the impugned notifications and argues that these orders are issued by the Central Government only. He points out that the DGFT/respondent No.2 merely authenticated or signed the same. The notifications as per the Assistant Solicitor General squarely refer to the order being passed by the Central Government itself. In addition, learned Assistant Solicitor General refers to the notification dated 18.02.2002 issued by the Government of India, Ministry of Home Affairs notifying the Authentication (Orders and other Instruments) Rules, 2002. Learned Assistant Solicitor General points out that these rules have been formulated to permit the authentication of the orders issued by the Government by certain nominated officials. As per Rule 12 of the order, all instruments and orders relating to the DGFT shall be signed and authenticated by the Director General of Foreign Trade or the Additional Director General/Export Commissioner/Joint DGFT. Learned Assistant Solicitor General, therefore, submits that DGFT did not commit any mistake in authenticating the impugned G.O. He relies upon a Division Bench judgment of High Court of Gujarath in Civil Application No.16765 of 2018, wherein this rule itself felt for consideration and was accepted by the said High Court. Apart from that the learned Assistant Solicitor General relies upon the judgment of the high Court of Kerala in WA.No.480 of 2011, wherein a similar issue was considered. Relying on both these decisions, learned Assistant Solicitor General argues that the order is issued by the Central Government and that it is validly signed and authenticated by the 3rd respondent. Lastly, relying upon a single Judges decision from the Calcutta high Court in WP.No.26409 of 2013, the learned counsel argues that the DGFT is empowered to sign and authenticate such orders.
This Court after hearing both the learned counsel notices that although the arguments were lengthy, the short and simple question involved in this case is about the interpretation of sections 3 and 6 of the Act and the authentication. Section 3 of the Act confers the power on the Central Government to make orders and polices. Section 6 of the Act prohibits the exercise of this power, particularly under Section 3 of the Act by any other Officer. The powers under Section 3, 5, 15, 16 and 19 of the Act, cannot be exercised by any one else or be delegated. But if the impugned notifications are seen, they very clearly state as follows: “the Central Government hereby amends”. Thus, it is clear that it is the Central Government alone that has amended these rules. Apart from that, the points raised by the learned Assistant Solicitor General also deserve consideration. The Central Government has to function through a human agency, who has to sign and authenticate these orders. The Government, therefore, passed the orders in the name of President of India called the Authentication of orders and Instruments Rules, 2002. As far as the DGFT is concerned, the power has been given to the Director General of Foreign Trade, the Additional Director General and others to sign to authenticate all instruments made and executed in the name of the President of India (Rule 12). The rule about authentication is very clear and admits of only one interpretation; as above.
These rules have also been considered by the Division Bench of the Gujarat high Court in CA.No.16765 of 2018 and batch. A similar notification was also considered by a Division Bench of the Kerala high Court in WA.No.480 of 2011, wherein the Division Bench noticed that the notification was issued on behalf of the Central Government and is signed by the Director General of Foreign Trade. Therefore, the Bench held that the notification is valid. Lastly, the judgment of the learned single Judge in WP.No.26409 of 2013 is also in the opinion of this Court; appropri
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ate. In that case also, notifications were issued. After considering the issue about the Allocation of Business Rules, the learned single Judge came to the conclusion that the signature on the notification by the DGFT is a valid signature. In that case, learned single Judge agreed that under the Allocation of Business Rules, the source of power of the DGFT to sign the notification could be traced. This Court is therefore of the opinion that there is no merit in the contention urged by the learned counsel for the petitioner. The notification clearly states that it is issued by the Central Government. 2002 Rules that are produced permit the authentication thereof by the DGFT. Thus, the two challenges to the order; in this Court’s opinion do not actually merit consideration. This Court finds that there are no errors in the said notification. Hence, this Court holds that the challenge to the notification has to fail. Accordingly, the writ petitions are dismissed. No order as to costs. As a sequel, the miscellaneous applications, if any pending, shall stand closed.