Allowed

Tamil Nadu Cashew Processors and v. Union of India

Madras HC6 Jan 2021WP/12136/2020

Case brief

AI extract

What is this about?

The High Court of Madras allowed a writ petition seeking quashing of Trade Notice No.50/2019-20 regarding cashew import policies. The court held that amending statutory Minimum Import Prices requires a notification under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992, and cannot be done through a mere Trade Notice.

What did the court decide?

The impugned Trade Notice No.50/2019-20 dated 14.02.2020 is set aside and this writ petition is allowed.

Tamil Nadu Cashew Processors and Vs Union of India — Service and Employment | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 06.01.2021

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CORAM

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THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA

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W.P.No.12136 of 2020 and W.M.P.No.14878 of 2020

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Tamil Nadu Cashew Processors & Exporters Associated represented by its Secretary, M.Ramakrishnan, No.11, Siva Sakthi Nagar, Near Taluk Office, Old Kumbakonam Road, Panruti-607 106. .. Petitioner Vs. 1. Union of India, Ministry of Commerce and Industry, New Delhi-110 107 represented by its Secretary 2. The Directorate General of Foreign Trade, Office of the Director General of Foreign Trade, Udyog Bhavan, New Delhi-110 011. 3. The Deputy Director General of Foreign Trade, Office of the Director General of Foreign Trade, Udyog Bhavan, New Delhi-110 011. .. Respondents * * * 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 respondent with the approval of the second respondent in File No.01/89/180/M-1898/AM03/PC-2[A]/P-16241) and quash the same. * * * For Petitioner : Mr.Hariradhakrishnan For Respondents : Mr.J.Madhanagopal Rao, Central Government Standing Counsel

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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 respondent with the approval of the second respondent in File No.01/89/180/M-1898/AM03/PC-2[A]/P-16241) and quash the same.

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O R D E R

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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").

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

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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.

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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.

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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.

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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 reexporters 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.

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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.

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The writ petition was resisted by the respondents placing reliance on Section 5 of the FTDR Act, which empowers the Government of India to issue a Foreign Trade Policy. According to the respondents, the Trade Notice dated 14.02.2020 only elaborated or clarified the notification dated 12.06.2019 without adding or modifying the policy. The relaxation given under the Trade Notice allowing the import of cashew kernels to SEZs and EOUs subsequent to the notification dated 12.06.2019 is not to modify the policy or procedure and therefore, a separate notification is not required. Hence, it is stated that the impugned Trade Notice is not any amendment to the earlier notification and accordingly, the petitioner cannot challenge the same.

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Heard both sides.

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Before delving into the powers of the respondents in issuing the Notification or a Trade Notice, it would be useful to reproduce Section 3 of the FTDR Act, which provides for the power for making the provisions to import and export, as hereunder :

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"3. Powers to make provisions relating to imports and export—

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(1) The Central Government may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports.

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(2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under

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the Order, the import or export of goods or services or technology :

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Provided that the provisions of this sub-section shall be applicable, in case of import or export of services or technology, only when the service or technology provider is availing benefits under the foreign trade policy or is dealing with specified services or specified technologies.

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(3) All goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly.

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(4) Without prejudice to anything contained in any other law, rule, regulation, notification or order, no permit or licence shall be necessary for import or export of any goods, nor any goods shall be prohibited for import or export except, as may be required under this Act, or rules or orders made thereunder."

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Section 5 of the FTDR Act is also relevant, which reads as follows:

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"5. Foreign Trade Policy — The Central Government may, from time to time, formulate and announce, by notification in the Official Gazette, the foreign trade policy and may also, in like manner, amend that policy: Provided that the Central Government may direct that, in respect of the Special Economic Zones, the foreign trade policy shall apply to the goods, services and technology with such exceptions, modifications and adaptations, as may be specified by it by notification in the Official Gazette."

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The contention of the learned counsel for the petitioner is that the Trade Notice is not issued under any particular provisions of the FTDR Act. There is no source of power for issuing a Trade Notice. As stated in the counter-affidavit, a Trade Notice is procedurally issued for clarifying certain doubts that may arise among the traders. The Notification No.8/2015-20, dated 12.06.2019 is silent about the applicability of restriction imposed on import of cashew kernels broken or whole to the units in SEZs and 100% EOUs. When such is the position, by placing reliance on the Section 3 and 5 of the FTDR Act, it is stated that the Trade Notice is issued stating that MIP on cashes is not applicable for imports by 100% EOU and units in SEZs. A reading of the proviso to Section 5 stipulates the issuance of a separate notification for the applicability of the Trade Notification or in any exemption, modifications and adaptations by a specific notification in the official Gazette.

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As stated earlier, the import of cashew kernels both broken and whole were allowed, without any condition, for import, excepting the payment of Customs Duty till 2013. After the introduction of MIP, it was made applicable to SEZs and EOUs as well. The African countries where, the raw cashew is available in plenty, started processing and providing subsidy and incentives for export of the said products. Hence, the cashews were imported to India and were re-exported, which does not involve much processing and also not involve job opportunity. The re-exporters were enjoying all the export benefits that are available in the trade and the genuine processors in India were unable to compete. In fact, several of the cashew processing units were forced to be closed. This, in turn, also resulted in lower returns of cashew farmers as low priced cashew was otherwise available in the market.

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The learned counsel for the petitioner would submit that a Trade Notice is one by which the Government informs the public at large and the same cannot be issued to amend the Notification issued in terms of Section 3 of the FTDR Act and therefore, the impugned Trade Notice has to be quashed.

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9.1. In support of his contention, learned counsel for the petitioner relied on the following judgments :

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9.2. In State of Bihar and Another V. J.A.C.Saldanha and others, (1980) 1 SCC 554, it has been held as follows :

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"17. ...... It was incidentally submitted that it is an undisputed dictum of law that when a statute requires a thing to be done in a certain manner it shall be done in that manner alone and the court would not expect its being done in some other manner (see State of Gujarat v. Shantilal Mangaldas, (1969) 1 SCC 509. Expounding the submission it was stated that subsection (8) of Section 173 clearly indicates the power of further investigation after submission of a report and that power is conferred on the officer in charge of a police station only and, therefore, the State Government was incompetent to direct further investigation. It was further contended that in view of the provision contained in Section 173(8) it would not be open to the court to so interpret the word “superintendence” in Section 3 of the Police Act as to empower the State Government to direct investigation being done by some one other than the statutory authority envisaged by Section 173(8) because such an interpretation would derogate from the principle that where a thing is required by a statute to be done in a particular way it shall be deemed to have prohibited that thing being done in any other way. In Ex parte Stephen [(1876) 3 Ch D 659] the principle is stated that if a statute directs a thing to be done in a

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certain way that thing shall not, even if there be no negative words, be done in any other way. Subba Rao, J. in Patna Improvement Trust v. Smt Lakshmi Devi, AIR 1963 SC 1077 spelt out the combined effect of the aforementioned principles thus:

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“A general Act must yield to a special Act dealing with a specific subject-matter and that if an Act directs a thing to be done in a particular way, it shall be deemed to have prohibited the doing of that thing in any other way.”

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9.3. This Court in M.S.D.Thenraja V. Executive Officer, 1997 (2) CTC 507, has held as follows :

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"24. The Cantonments Electoral Rules, 1945 Chapter VII, Rule 42 contemplates election petition and Rule 47 contemplates grounds for declaring election void and sub-clause (a)(ii) of Rule 47 talks of improper acceptance or refusal of nomination paper. Therefore, when a statute contemplates a remedy to a person aggrieved of rejection of nomination paper, it is settled law when the scheme of the Act and the Rules prescribed thereunder contemplates that a specific act should be done in a particular manner, it has to be done only in that manner and in no other way. It is also settled in law, when the disputed questions of facts require evidence and a remedy has been provided, this court under Art. 226 should not venture to decide such disputed questions of facts.

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9.5. The Hon'ble Supreme Court in Babu Verghese and Others V. Bar Council of Kerala, AIR 1999 SC 1281, has held thus :

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"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor [(1875) 1 Ch D 426 : 45 LJCh 373] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [(1936) 63 IA 372 : AIR 1936 PC 253] who stated as under:

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“[W]here a power is given to do a certain thing in

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a certain way, the thing must be done in that way or not at all.”

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9.5. A reading of the above decisions only would go to show that if statutorily a particular thing has to be done in a particular way, it shall be deemed to have prohibited being done in any other way. Though the Government is at liberty take a policy decision, it has to be done, as mandated under the relevant Statute.

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Similarly, in the case of hand also, Notification No.8/2015-20, dated 12.06.2019, which was issued in exercise of power conferred by Section 3 of the FTDR Act read with paragraph 1.02 and 2.01 of the FTP 2015-2020, which, in the considered opinion of this Court, is an amendment in import policy conditions of cashew kernels both broken and whole. This Court is also of the view that any further amendment or clarification of this nature should also be made only as per Section 3 and not by a mere notice, which is not in accordance with the Statute. A reading of the Notification and subsequent Trade Notice makes it clear that Notification No.8/2015-20, dated 12.06.2019, enhancing the MIP of the broken and whole cashew kernels, wherein, the Trade Notice No.50/2019-20, dated 14.02.2020 states that the same is not made applicable to the EOUs and SEZs, which is certainly an amendment to the Trade Notification and it is cannot be stated that it is a mere elaboration, information or clarification to the Regional Authorities of the Directorate, as claimed by the respondents. Hence, the said clarification or modification to the original Notification cannot be made in terms of a mere notice without following the statutory procedure, in the given case.

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At this juncture, it is to be stated that the Notification No.8/2015-2020, dated 12.06.2019 is silent about the object, for which, it was issued. So also, the Trade Notice. The Statute empowers the Central Government to prohibit importation and exportation of goods for various purposes, which includes (i) the maintenance of standards for the classification, grading or marketing of goods in international trade ; and also (ii) the prevention of serious injury to domestic production of goods of any description. The allegation of the petitioner that the cashews imported from African countries are exported to foreign countries branding them as Indian cashews, which fact is not denied by the respondents in the counter-affidavit, cannot be brushed aside lightly. It is duty of the respondents to ensure maintenance of standards for the classification, grading or marketing of Indian goods in international grade, even from EOUs and SEZs and there should not be any space for compromise for the Indian brand name for any short gain by the Traders.

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In view of the above factual matrix and also the decisions relied on by the learned counsel for the petitioner, the impugned Trade Notice is liable to be set aside. Accordingly, this writ petition is allowed and the impugned Trade Notice No.50/2019-20, dated 14.02.2020 is set aside. This will not preclude the respondents from issuing any further amendment to Notification No.8/2015-2020 in the manner known to

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law. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

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-s/d-
Assistant Registrar
True Copy
Sub-Assistant Registrar
gg
To
1. The Secretary,
Ministry of Commerce and Industry,
Union of India,
New Delhi-110 107.
2. The Directorate General of Foreign Trade,
Office of the Director General of Foreign Trade,
Udyog Bhavan, New Delhi-110 011.
3. The Deputy Director General of Foreign Trade,
Office of the Director General of Foreign Trade,
Udyog Bhavan, New Delhi-110 011.
+1 ccs to M/s.Hari Radhakrishnan Advocate sr436
W.P.No.12136 of 2020
bs(co)
aa27/01/2021

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Tamil Nadu Cashew Processors and v. Union of India

Case brief

What is this about?

What did the court decide?

Tamil Nadu Cashew Processors and v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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