Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 9TH DAY OF JULY 2024 / 18TH ASHADHA, 1946 WA NO. 1779 OF 2023 AGAINST THE JUDGMENT DATED IN WP(C) NO.26804 OF 2021 OF HIGH COURT OF KERALA APPELLANT(S)/PETITIONER:
TRAVANCORE SOLVENTS AND OILS, AGED 49 YEARS, 6/260(20), 2ND FLOOR, PALMLANDS BUILDING, BANK JUNCTION, ALUVA - 683101, REPRESENTED BY ITS PROPRIETOR, SHAFIEQUE AHAMED K.K., PIN – 683101 BY ADVS.
JOHN VARGHESE SONU AUGUSTINE RESPONDENT(S)/RESPONDENT:
1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, (CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS), NORTH BLOCK, NEW DELHI, PIN – 110001 2 DIRECTOR GENERAL OF FOREIGN TRADE, UDYOG BHAVAN, H-WING, GATE NO.2, MOULANA AZAD ROAD, NEW DELHI - 110011., PIN – 110011 3 CONSORTIUM OF BLACK PEPPER ORGANIZATION CONSORTIUM OF BLACK PEPPER ORGANISATION, C/O CODAGU PLANTERS ASSOCIATION (R), P.B.NO. 15, G.T. TOAD, MADIKERI, KODAGU KARNATAKA 571201, REPRESENTED BY ITS CO-ORDINATOR VISWANATH K.K., PIN – 571201 4 THE UNITED PLANTERS ASSOCIATION OF SOUTHERN INDIA 'GLENVIEW', COONOOR, NILIGIRIS DISTRICT, TAMIL NADU, REPRESENTED BY ITS SECRETARY, MR. R. SANJITH, PIN - 643101
BY ADVS.
GIRISH KUMAR V., CGC GOPIKRISHNAN NAMBIAR M E.K.NANDAKUMAR (SR.)(N-23) K.JOHN MATHAI(K/413/1984) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) PRANOY HARILAL(K/931/2018) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.07.2024, ALONG WITH WA.1922/2023, 1924/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 9TH DAY OF JULY 2024 / 18TH ASHADHA, 1946 WA NO. 1922 OF 2023 AGAINST THE JUDGMENT DATED 25.08.2023 IN WP(C) NO.1119 OF 2022 OF HIGH COURT OF KERALA APPELLANT(S)/PETITIONER:
AABIS INTERNATIONAL REGISTERED OFFICE AT DOOR NO.10/1286, BHIMA TOWER, IIND FLOOR, WADAKKANCHERY, THRISSUR, KERALA, REPRESENTED BY ITS MANAGING PARTNER, SHRI. SHABU C.M., PIN – 680582 BY ADVS.
M.S.SAJEEV KUMAR A.N.JYOTHILEKSHMI LAKSHMI S KUMAR RESPONDENT(S)/RESPONDENTS:
1 UNION OF INDIA REPRESENTED BY IT'S SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE (CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS), NORTH BLOCK, NEW DELHI, PIN - 110001 2 DIRECTOR GENERAL OF FOREIGN TRADE UDYOG BHAVAN, H-WING, GATE NO.2, MOULANA AZAD ROAD, NEW DELHI, PIN – 110011
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BY ADV JAGADEESH LAKSHMAN, CGC THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09.07.2024, ALONG WITH W.A.No.1779/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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-5- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 9TH DAY OF JULY 2024 / 18TH ASHADHA, 1946 WA NO. 1924 OF 2023 AGAINST THE JUDGMENT DATED 25.08.2023 IN WP(C) NO.1128 OF 2022 OF HIGH COURT OF KERALA APPELLANT(S)/PETITIONER:
AL QAHIR INTERNATIONAL HAVING IT'S REGISTERED OFFICE AT NO.1/1489A, KUMARANELLUR, WADAKKANCHERY, THRISSUR , REPRESENTED BY ITS MANAGING PARTNER, SHRI. SHIHAD., PIN – 680590 BY ADVS.
M.S.SAJEEV KUMAR A.N.JYOTHILEKSHMI LAKSHMI S KUMAR RESPONDENT(S)/RESPONDENTS:
1 UNION OF INDIA REPRESENTED BY IT'S SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE (CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS), NORTH BLOCK, NEW DELHI, PIN – 110001 2 DIRECTOR GENERAL OF FOREIGN TRADE UDYOG BHAVAN, H-WING, GATE NO.2, MOULANA AZAD ROAD, NEW DELHI, PIN – 110011
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-6- BY ADV SRI.T.C.KRISHNA, SCGC THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09.07.2024, ALONG WITH WA.1779/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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-7- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 9TH DAY OF JULY 2024 / 18TH ASHADHA, 1946 WA NO. 1925 OF 2023 AGAINST THE JUDGMENT DATED 25.08.2023 IN WP(C) NO.1067 OF 2022 OF HIGH COURT OF KERALA APPELLANT(S)/PETITIONER:
M/S.SHABEER ENTERPRISES, HAVING ITS REGISTERED OFFICE AT NO.7/299, KUMARANELLUR P.O., WADAKKANCHERY, THRISSUR, REPRESENTED BY ITS PROPRIETOR SHRI.A.H.MOAHMMED., PIN – 680590 BY ADV M.S.SAJEEV KUMAR RESPONDENT(S)/RESPONDENTS:
1 UNION OF INDIA REPRESENTED BY IT'S SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE (CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS), NORTH BLOCK, NEW DELHI, PIN – 110001 2 DIRECTOR GENERAL OF FOREIGN TRADE UDYOG BHAVAN, H-WING, GATE NO.2, MOULANA AZAD ROAD, NEW DELHI, PIN – 110011 BY ADV.
SRI.K.SHRI HARI RAO, CGC
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-8- THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09.07.2024, ALONG WITH WA.1779/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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-9- JUDGMENT [WA Nos.1779/2023, 1922/2023, 1924/2023, 1925/2023] AMIT RAWAL, J.
1. Various traders/businessmen who were indulging into importing spices and other articles had laid challenge to the notification dated 15.07.2018 through writ petitions Nos. 19351/2021, 1067/2022, 1128/2022, 1119/2022, 15917/2018, 21910/2018, 22857/2018, 23023/2018 and 26804/2021. Learned Single Judge vide judgment dated 25.08.2023 dismissed the writ petitions.
Against the said judgment, for the time being, only four (4) have come up before us in writ appeals bearing Nos.1779/2023, 1922/2023, 1924/2023 and 1925/2023.
2.
The long and short argument of the appellants/writ petitioners was that the notification caused by the Director General was invalid in law much less could not have operation for want of being placed
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-10- before the parliament in terms of the provisions of Section 19(3) of Foreign Trade (Development and Regulation) Act, 1992. All the importers and exporters are issued an Importer-Exporter Code by the Director General of Foreign Trade (DGFT). The import of pepper under the Foreign Trade Policy of 2015-2020 was free of cost. However, for the first time in 2018, a condition was imposed that only if the Cost Insurance and Frieght (CIF) value is Rs.500/- (Rupees Five hundred only) or more per kilogram, the import duty would not be applicable. The Central Government, within two (2) months of issuance of notification Ext.P1 i.e., on 17.09.2018 came out with another notification Ext.P5 whereas the pepper assigned the Code No.0904 11 10, which is the matter of adjudication in all the writ petitions, the import was held to be free with no restriction. Noticing all the provisions of the Act, learned Single Judge found that since there was no deterrent conditions in the provisions of the Act,
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-11- and the effect of notification is only to restrict the import of pepper and not to prohibit its import, dismissed the writ petitions. Similar argument has been raised.
3.
During the course of hearing, we specifically put a query to the counsel representing the appellants - writ petitioners as to how they were affected, for, only four (4) writ petitions were filed in 2018 and rest of the writ petitions were either in 2021 and 2022 whereas the subsequent notification of 17.09.2018 had lifted the prohibition. No copy of the CIF or the bills have been placed on record showing the loss in causing the import of pepper. In fact the stand of the respondents was that the aforementioned condition was imposed as the importers have been importing the pepper of inferior quality from various countries which was causing great competition amongst the planters and the interest of the domestic planters was to be protected.
4.
Similar controversy had also arisen before the
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-12- Division Bench of this Court in Writ Appeal No.1687 of 2018 which was vide order dated 25.09.2018 disposed of giving the findings in paragraph No.4. Similar is the controversy in this case.
“4. Taking note of the said subsequent developments, and finding that the interim order of the learned single Judge, impugned in these writ appeals, may not have any significance to imports subsequently made by the writ petitioners, we deem it appropriate to relegate the appellants to the learned single Judge for consideration of all the issues at the time of disposal of the writ petitions on merits. We make it clear that it would be open to the respondent in the writ petitions to seek modification of the interim orders passed earlier by the learned single Judge, in the light of the subsequent notification and other materials to be produced by the respondents before the learned single Judge.”
The issue of placing the notification before the Parliament would now remain insignificant or
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-13- nonacademic, as the prohibition had been lifted after gap of less than two(2) months. All the writ appeals are thus dismissed.
Sd/- AMIT RAWAL JUDGE Sd/- EASWARAN S.
JUDGE vv
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-14- APPENDIX OF WA 1779/2023 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE LETTER DATED 09-02- 2024 ISSUED BY THE OFFICE OF THE COMMISSIONER OF GST AND CENTRAL EXCISE (APPEALS),COIMBATORE, CIRCUIT OFFICE AT TRICHY