M/S UNIK TRADERS V. UNION OF INDIA

WP/1329/2022

AI Insights

The case involves two writ petitions filed by M/s. Unik Traders, challenging a notification dated 25-07-2018 issued by the DGFT, which set a minimum import price for Black Pepper. The petitioner argued that the DGFT exceeded its authority and that the notification conflicted with the Food Safety and Standards Act, 2006. The High Court of Kerala had previously stayed the notification, but later dismissed the writ petitions, leading to the current challenge in the Karnataka High Court. The court found that the DGFT was acting within its legal powers and that the economic policy decisions regarding the import of Black Pepper were not subject to judicial review unless they contravened statutory provisions or the Constitution.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 687278 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 22-04-2024
• Assessment Year: misc
• Other Referred Cases: DIRECTOR GENERAL OF FOREIGN TRADE v. KANAK EXPORTS, M/s. MRJ TRADING v. UNION OF INDIA, UNION OF INDIA v. UNIK TRADERS, PREMIUM PULSES PRODUCTS v. UNION OF INDIA
• Laws Referred To: Foreign Trade (Development and Regulation) Act, 1992, Food Safety and Standards Act, 2006, Customs Act, Customs Tariff Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: M N KUMAR; AMIT DESHPANDE
• Assessee Lawyers: RAJESWARA N
• Keywords: Black pepper; DGFT; Economic Policy; Judicial review; Minimum import price
• Section: 6; 5; 3; 19

Judgement Text

" 1 Reserved on : 31.01.2024 Pronounced on :22.04.2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.1329 OF 2022 (GM - RES) C/W. WRIT PETITION No.2898 OF 2022 (GM - RES) IN WRIT PETITION No.1329 OF 2022: BETWEEN: M/S. UNIK TRADERS NO.140, OLD THARAGUPET BENGALURU - 560 053 A PROPRIETORSHIP CONCERN REPRESENTED BY ITS AUTHORIZED SIGNATORY ASIF H.THARA ... PETITIONER (BY SRI. RAJESWARA P. N., ADVOCATE) AND: 1 . UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF FINANCE 2 DEPARTMENT OF REVENUE (CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS) NORTH BLOCK, NEW DELHI - 110 001. 2 . DIRECTOR GENERAL OF FOREIGN TRADE UDYOG BHAVAN, H-WING GATE NO.2, MOULANA AZAD ROAD NEW DELHI - 110 011. 3. THE COMMISSIONER OF CUSTOMS NEW CUSTOMS HOUSE PANAMBUR, MANGALORE – 575 010. 4. THE DEPUTY COMMISSIONER OF CUSTOMS (DOCKS) NEW CUSTOM HOUSE PANAMBUR, MANGALORE – 575 010. 5. THE SUPERINTENDENT OF CUSTOMS (DOCKS) NEW CUSTOM HOUSE PANAMBUR, MANGALORE – 575 010. 6. THE DEPUTY TRAFFIC MANAGER (COMMERCIAL) NEW MANGALORE PORT AUTHORITY, PANAMBUR MANGALORE – 575 010. ... RESPONDENTS (BY SRI. M.N.KUMAR, CGC FOR R1 AND R2; SRI. AMIT ANAND DESHPANDE, ADVOCATE FOR R3 TO R6) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD. 25.07.2018 ISSUED BY THE R-2 AT ANNX-A. 3 IN WRIT PETITION No.2898 OF 2022: BETWEEN: M/S. UNIK TRADERS NO.140, OLD THARAGUPET BENGALURU – 560 053 A PROPRIETORSHIP CONCERN REPRESENTED BY ITS AUTHORIZED SIGNATORY SHRI ASIF H.THARA ... PETITIONER (BY SRI. RAJESWARA P. N., ADVOCATE) AND: 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 – 110 001. 2 . DIRECTOR GENERAL OF FOREIGN TRADE UDYOG BHAVAN, H-WING GATE NO.2, MOULANA AZAD ROAD NEW DELHI – 110 011. ... RESPONDENTS (BY SRI. M.N.KUMAR, CGC) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD 25.07.2018 ISSUED BY THE R-2 VIDE ANNX-A. 4 THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 31.01.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER Both these petitions are preferred by the same petitioner calling in question a solitary Notification dated 25-07-2018 issued by the 2nd respondent with regard to minimum import price of Black Pepper in India. 2. Heard Sri P.N. Rajeswara, learned counsel appearing for the petitioner, Sri M.N.Kumar, learned Central Government Counsel appearing for respondents 1 and 2 and Sri Amit Anand Deshpande, learned counsel appearing for respondents 3 to 6. 3. For the sake of convenience, the facts obtaining in Writ Petition No.1329 of 2022, which are common in the companion petition are narrated. 4. The petitioner/Unik Traders claims to be in the trade of import and local sale of spices, condiments including Black Pepper inter alia. It is the averment in the petitions that the petitioner is in the said business for more than two decades and has an Import and 5 Export Code granted by the Ministry of Commerce, Government of India and assessed to Income Tax and it is also registered with the Food Safety and Standards Authority of India. The Government of India issues a notification in the year 2018 i.e., 25-07-2018, the impugned notification. The Notification brings in amended policy condition of import of Areca nut, Betel nut and Black Pepper. This notification comes to be challenged before the High Court of Kerala. The High Court of Kerala in Writ Petition No.28028 of 2018 stayed the Notification as several earlier notifications had been stayed by the High Court. During the pendency of the proceedings before the High Court of Kerala, another notification comes to be issued in furtherance of the aforesaid notification concerning the minimum import price. This also comes to be stayed on 13.01.2022 by the High Court of Kerala in Writ Petition (C) No.1128 of 2022. During the pendency of those petitions, the present petitioner enters into a contract to import 1,08,000 Kgs. of Black Pepper from one Lagomex Joint Stock Company of Vietnam, from Ho Chi Minh Port to New Mangalore Port. In terms of the contract, the shipment reaches New Mangalore Port on 01-11-2023 and the Deputy Commissioner of Customs raises a query, which is said to have been answered by 6 the petitioner. On 02-11-2023, the competent authority assessed the Bill of Entry and import duty at `2,17,61,067/-. The petitioner paid a liner charge of `1,06,318/- and got extended till 12.11.2023. The petitioner then requests clearance of four containers. The request was not acceded to. The petitioner then requests to permit at least de-stuffing of cargo, which contained Black Pepper at the New Mangalore Port transit shed. By then, the petitioner had preferred the subject petitions before this Court calling in question the Notification dated 25-07-2018, as was challenged before the High Court of Kerala. 5. In the light of the said challenge, the petitioner was not allowed to de-stuff the cargo on the ground that it has to wait the outcome of Writ Petition No.2898 of 2022, wherein an interim order of stay was in operation on the notification. The petitioner then requests that the Black Pepper that was stuffed in the cargo be de- stuffed and when it was not acceded, the petitioner files an application before this Court seeking direction to the authorities to immediately assess, release and grant out of charge to the bill of entries without insisting compliance with the notification in 7 question, on 20.11.2023. On 11-01-2024, the 6th respondent issues a notice to vacate the land allotted for stacking of Black Pepper to the petitioner. It is then, the petitions are again moved and the matters are heard. 6. The learned counsel for the petitioner would vehemently contend that the Director General of Foreign Trade has no power to fix minimum import price. The notification fixing minimum import price is in excess of his authority. It is his submission that even under paragraph 2.07 of the Foreign Trade Policy, 2015-2020 where DGFT is given power to impose restriction on export and import through a notification also does not empower him to fix a minimum import price. The petitioner further contends that the condition of imposing 6% piperine content in the imported pepper is highly irregular and is in conflict with the Central Act i.e., Food, Safety and Standards Act, 2006 and would submit that the notification be quashed being de hors the power and the petitioner be granted all consequential benefits. 8 7. Per contra, the learned counsel for respondent Nos.3 to 6, taking this Court through the statement of objections would contend that the value of Black Pepper imported is declared something which is contrary to law. The minimum price condition is completely violated. The exporter of the present petitioner M/s.Lagomex Joint Stock Company is a first time exporter to India and the details of the company are unable to be verified. Therefore, the transaction is very suspicious. A query was raised by the competent officer for justification of the unit price of Black Pepper. The petitioner in reply to the query indicated that the present writ petition is pending and an interim order is operating in its favour and, therefore, it would not reply the said query. The learned counsel submits that the High Court of Kerala before whom the notification came to be challenged, had dismissed the writ petitions. Therefore, the interim order granted in these cases, on the strength of the interim order granted by the High Court of Kerala, would also become applicable to the final orders that would be passed by this and seeks dismissal of the petitions. 9 8. I have given my anxious considerations to the submissions made by the respective learned counsel and have perused the material on record. 9. The afore-narrated facts are not in dispute and therefore, they do not require any reiteration. It is germane to notice here the impugned notification and it reads as follows; “Government of India Ministry of Commerce & Industry Department of Commerce Directorate General of Foreign Trade Notification No.21/2015-2020 New Delhi, Dated: 25 July, 2018 Subject: Amendment in policy condition of pepper classified under Chapter 09 of ITC (HS), 2017-Schedule-1(Import Policy). S.O. (E): In exercise of powers conferred by Section 3 of FT (D&R) Act, 1992 read with paragraph 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, the Central Government hereby amends the policy condition of ‘Pepper’ classified under Chapter 09 of ITC (HS), 2017 – Schedule – 1 (Import Policy) as under: Exim code Item Description Policy Existing Policy Condition Revised Policy Condition 0904 11 Neither crushed nor ground: Prohibited However, import is free if CIF is above Rs.500/per kg. However, import is free if CIF value is above Rs.500/per kg. MIP, 10 however, will not be applicable for imports under Advance Authorisation Scheme, imports by 100% Export Oriented Units (EOUs) and units in the SEZ. 0904 11 10 Pepper, long Prohibited However, import is free if CIF is above Rs.500/per kg As under Exim code 0904 11. 0904 11 20 Light black pepper Prohibited However, import is free if CIF is above Rs. 500/per kg. Further, imports under Advance Authorisation Scheme is ‘Free’ and are exempted from the MIP condition when import is for extraction of oleoresin, for re-export, by the However, Import Is Free CIF Is Above Rs.500/Per Kg. MIP Conditions, However, Will Not Be Applicable For Imports Under Advance Authorisation Scheme, Imports By 100% Export Oriented Units (EOUs) And Units In The SEZ. Further, 11 manufacturer exporters only subject to the following condition: a. Light black pepper berries shall have a minimum piperine content of 6% for import into India under AAS for oleoresin. b. The samples shall be drawn by Customs and tested at Spices Board’s Quality Evaluation Labs for piperine content as per the ISO 5564 method. c. The yield assessment for oleoresin for AAS shall be done as per the ISO 1108 method Imports Under Advance Authorisation Scheme Is ‘Free’ And Are Exempted From The MIP Condition When Import Is For Extraction Of Oleoresin, For Re-Export, By The Manufacturer Exporters Only, Subject To Policy Condition No.3 of the Chapter. 12 at the Quality Evaluation Lab of Spices Board. d. The manufacturer exporters, who import pepper under AAS, for oleoresin purpose shall submit the details of import of pepper viz., quantity of pepper imported quantity of oleoresin produced, quantity of oleoresin re- exported, balance stock available as well as the details of usage/dispos al of spent material on a monthly basis to the Spices Board. 0904 11 30 Black pepper garbled Prohibited However, import is free if CIF is above As under Exim code 0904 11. 13 Rs.500/per kg. 0904 11 40 Black pepper ungarbled Prohibited However, import is free if CIF is above Rs.500/per kg. As under Exim code 0904 11. 0904 11 50 Green pepper, dehydrated Prohibited However, import is free if CIF is above Rs.500/per kg. As under Exim code 0904 11. 0904 11 60 Pepper pinheads Prohibited However, import is free if CIF is above Rs.500/per kg. As under Exim code 0904 11. 0904 11 70 Green pepper frozen or dried Prohibited However, import is free if CIF is above Rs.500/per kg. As under Exim code 0904 11. 0904 11 80 Pepper other than green, frozen Prohibited However, import is free if CIF is above Rs.500/per kg As under Exim code 0904 11. 0904 11 90 Other Prohibited However, import is free if CIF is above Rs.500/per kg As under Exim code 0904 11. 0907 12 00 Crushed or ground Prohibited However, import is free if CIF is above However, import is free if CIF is above Rs.500/per kg. 14 Rs.500/per kg. MIP conditions, however, will not be applicable for imports under Advance Authorisation Scheme, imports by 100% Exports Oriented Units (EOUs) and units in the SEZ. Policy Condition No.3: Further, imports under Advance Authorisation Scheme is ‘Free’ and are exempted from the MIP condition when import is for extraction of oleoresin, for re-export, by the manufacturer exporters only, subject to the following condition: a. Light black pepper berries shall have a minimum piperine content of 6% for import into India under AAS for oleoresin. b. The samples shall be drawn by Customs and tested at Spices Board’s Quality Evaluation Labs for piperine content as per the ISO 5564 method. c. The yield assessment for oleoresin for AAS shall be done as per the ISO 1108 method at the Quality Evaluation Lab of Spices Board. d. The manufacturer exporters, who import pepper under AAS, for oleoresin purpose shall submit the details of import of pepper viz., quantity of pepper imported, quantity of oleoresin produced, quantity of oleoresin re-exported, balance stock available as well as the 15 details of usage/disposal of spent material on a monthly basis to the Spices Board. Effect of this Notification: Import of pepper under Advance Authorisation Scheme, imports by 100% Export Oriented Units (EOUs) and units in the SEZ are ‘Free’ and are exempted from the MIP condition. Sd/- (Alok Vardhan Chaturved) Director General of Foreign Trade.” It is issued by the Director General of Foreign Trade in exercise of powers conferred on him under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 (‘the Act’ for short). This notification mentions that it is in supersession of the earlier notification and amendment of import policy. This notification comes to be stayed by the High Court of Kerala in the aforesaid writ petitions. The writ petitions are as on today, dismissed. Therefore, what is held by the High Court of Kerala would straight away become applicable to the facts of the case at hand. Nonetheless the contentions of the petitioner are answers qua the power to issue such notification. The learned counsel for the petitioner has placed heavy reliance upon a judgment of the Apex Court in the 16 case of DIRECTOR GENERAL OF FOREIGN TRADE v. KANAK EXPORTS1, wherein it is held as follows: “…. …. …. 94. From the aforesaid, it is clear that Section 5 provides that the Central Government may, from time to time, formulate and announce, the EXIM Policy. This has to be done by issuing/announcing this Policy by way of notification in the Official Gazette. The Central Government also has the power to amend the Policy so announced by adopting the same procedure i.e. by issuing notification in the Official Gazette. It is not in dispute that the EXIM Policy in question was issued by notification in exercise of powers conferred under Section 5 of the Act. This Policy, thus, is infested with statutory flavour. 95. For the purpose of carrying out the objectives of the Act which includes implementation of the Policy, the Central Government is authorised to appoint DGFT as per Section 6 of the Act. The main functions of DGFT are advising the Central Government in formulation of the Policy and he is also responsible for carrying out the said Policy. Sub-section (3) of Section 6 provides that the Central Government may delegate its power exercisable under the Act. However, powers under Sections 3, 5, 15, 16 and 19 are specifically excluded which means these powers cannot be delegated. Thus, power to announce the Policy and to amend the same remains with the Central Government. Likewise, power to make rules under Section 19 which vests with the Central Government, cannot be delegated.” (Emphasis supplied) 1 (2016) 2 SCC 226 17 The Apex Court holds that the power under the Act cannot be delegated for notification of export and import policy by the DGFT. It is the power that vests with the Central Government. 10. It is after the judgment of the Apex Court supra, the subsequent judgments have come about. The notification becomes a subject matter of challenge before the High Court of Kerala in the afore-quoted writ petitions. The High Court of Kerala though initially granted an interim order, had dismissed those writ petitions by its order dated 25-08-2023. The High Court of Kerala while dismissing the writ petitions in M/s. MRJ TRADING v. UNION OF INDIA2, has held as follows: “11. The challenge on the ground of competence of the DGFT is met by drawing attention to the File Notes produced as Ext.R1(a) in W.P.(C) No.26804 of 2021, wherein reference is made to the representations received from domestic pepper growers and organisations representing the farmers, ventilating their grievance with respect to the import of cheap quality pepper to India. It is also noted that the matter can be taken up by the DGFT for notifying the MIP of pepper after obtaining approval from the Hon'ble Minister for Commerce and Industries and on receipt of recommendation from the Ministry of Agriculture and Farmers Welfare. It is submitted that the File Notes on the subject produced as Ext.R1(b) would reveals that the decision to issue the notifications was taken after discussion with the Hon'ble Minister. It is submitted that the DGFT is a 2 W.P.(C) 19351 of0 2021 decided on 25-08-2023 18 regulator of the Foreign Trade Policy and decisions with respect to the regulations are taken by the concerned Administrative Ministry/Department of the Central Government. The role of the DGFT is restricted to the issuance of the notifications as per the decision of the Government of India. The notifications are in fact are issued by the Central Government and signed by the DGFT in accordance with the Government of India Authentication (Orders and other Instruments) Rules, 2002. By virtue of the said Rules, the orders and other instruments relating to the Directorate General of Foreign Trade, made and executed in the name of the President of India, can be authenticated by the DGFT, Additional DGFT, Export Commissioner or Joint DGFT. Attention is also drawn to the Order dated 24/03/1993 issued by the Ministry of Commerce, whereby sanction is accorded by the President enabling the DGFT to authenticate orders/notifications/other instruments in the name of the Central Government. It is contended that, the competence of the DGFT to issue notifications on behalf of the Central Government is no longer res integra in view of the Apex Court decision in Union of India & Others v. Agricas LLP and Others [2021(14) SCC 341] and similar view was taken by a Division Bench of this Court in DGFT & Another v. Mustafa Traders & Another [2016 SCC OnLine Ker.11786] and the High Court of Madras in M/s.Hira Traders represented by its partner Shri.Haji Sumar Kudus v. DGFT & Others [W.P.(C) No.17387 of 2018 and connected cases]. …. …. …. 16. Indisputably, the decision to regulate the import of black pepper is the outcome of the Government's policy to prevent the influx of cheap quality pepper into the domestic market, thereby affecting the domestic growers. It is settled law that the wisdom and advisability of economic policies are not amenable to judicial review, unless the policy is demonstrably contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and decide whether a wiser or better one can be evolved. In this context it is worthwhile to read the following observation of 19 the Apex court in Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. & Another [(2011) 1 SCC 640]. \"41. The power to lay policy by executive decisions or by legislation includes power to withdraw the same unless it is by mala fide exercise of power, or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is settled law that the court gives a large leeway to the executive and the legislature. Granting licences for import or export is an executive or legislative policy. The Government would take diverse factors for formulating the policy in the overall larger interest of the economy of the country. When the Government is satisfied that change in the policy was necessary in the public interest it would be entitled to revise the policy and lay down a new policy.\" A Division Bench of this Court has also held that, so long as the Government discharges its burden of proving that the notification is issued in public interest, courts cannot judicially review and determine the correctness of the policy decision, even by bringing Article 14 of the Constitution into play [see Marine Fins, Kochi (supra)]. Therefore, I proceed to consider the challenge against the notifications, conscious of the limited scope of judicial review in matters of economic policy. …. …. …. 19. The notifications explicitly declare that they are issued by the Central Government in exercise of powers conferred by Section 3 of FT(D&R) Act, 1992, read with paragraphs 1.02 and 2.01 of the Foreign Trade Policy. It is also pertinent to note that, vide S.O.211(E) dated 16.01.2002, the President of India, in exercise of the powers conferred by clause(2) of Article 77 of the Constitution, has issued the Authentication (Orders and Other Instruments) Rules, 2002. By virtue of the said rules, the orders and other related instruments relating to the Directorate General of Foreign Trade made executed by the President can be authenticated by the DGFT, Additional DGFT, Export Commissioner or the Joint DGFT. In Agricas LLP (supra) the 20 Apex Court, answered the challenge against the competence of the DGFT to issue an order amending the EXIM policy in the following manner; \"15. At the outset, we must record that the importers, and in our opinion rightly, have not raised the contention that DGFT could not have notified the impugned notifications. The notifications themselves record that they were published by the Ministry of Commerce and Industry, Department of Commerce, Directorate General of Foreign Trade. The first paragraph of the notification states that they had been issued by the Central Government in exercise of powers conferred under Article 77 of the Constitution. Clearly, the notifications were issued by the Central Government, and not DGFT that had performed the ministerial act of publication. The decision to amend and issue the notification was of the Central Government. Neither Section 3(2) nor Section 6(3) of the FTDR Act was violated. This Court in Delhi International Airport Ltd. v. International Lease Finance Corpiratuib & Others [(2015) 8 SCC 446], had referred to Articles 77 and 166 of the Constitution and held that the Constitution stipulates that whenever executive action is taken by way of an order or instrument it shall be expressed to be taken in the name of the President and Governor in whose name the executive power of the Union and the States, respectively, are vested. Article 77 does not provide for delegation of any power, albeit under sub-section (3) of Article 77, the President is to make Rules for more convenient transaction of business and allocation of same amongst Ministers. Under the Government of India (Transaction of Business) Rules, 1961, the Government business is divided amongst Ministers and specific functions are allocated to different Ministries. The Director General of Foreign Trade is an ex officio Additional Secretary in the Government of India and is appointed by the Central Government under sub-section (1) to Section 6 of the FTDR Act to advise the Central Government in formulation and carrying out the Foreign Trade Policy. Wherefore, even the website of the Ministry of Commerce and Industry, Department of Commerce, states that DGFT is an agent of the Central Government and attached office to it. Further, clause (2) of Article 77 provides that validity of an order or instrument made or executed in the name of the President, authenticated in the manner specified in the Rules made by the President, shall not be called in question on the ground that it is not an order or an instrument made or executed by 21 the President. Therefore, the contention of issuance of the impugned notification sans authority, cannot be sustained.\" As evident from the file notes pertaining to the impugned notifications, the decision to issue the notification was taken after discussing the matter with the Minister. Hence, there is substance in the contention that the notifications were issued by the Central Government in exercise of the powers conferred under Section 3 of the FT(D&R) Act and the DGFT had only undertaken the ministerial act of publishing the notification. In such circumstances, mere publication of the notifications by the DGFT cannot lead to the presumption that the notifications were issued without the concurrence of the Central Government. Therefore, the challenge on the premise that the notifications were issued by the DGFT and not the Central Government is unsustainable. …. …. … 23. The next challenge is against the fixing of minimum piperine content of black pepper at 6%, contrary to the prescription of 4% in the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. According to the petitioners, Section 25 of the FSS Act having made all imports of articles of food subject to that Act and Section 89 having given an overriding effect to the Act, the notification, to the extent it prescribes the piperine content as 6%, is void. The contention based on Section 25 cannot be entertained since Section 25(1)(ii) stipulates that, no article of food, for the import of which a licence is required under any Act or Rules or Regulations, shall be imported except in accordance with the conditions of that licence. The petitioners are importing articles on the strength of the Importer-exporter Code Number issued under Section 7 of the FT(D&R) Act. As such they are governed by the orders and notifications issued in accordance with the provisions of the Act governing the issuance of their licences. 24. With respect to the contention based on Section 89, it is to be noted that the overriding effect of the FSS Act is confined to other food related laws. Irrefutably, the FT(D&R) Act is not a food related law for the FSS Act to have an overriding effect. Yet another relevant aspect is that, 22 under the impugned notifications, the piperine content of light black pepper berries imported into India under Advance Authorisation Scheme for oleoresin alone is fixed as 6%. As the pepper imported under the Advance Authorisation Scheme is used for manufacturing oleoresin for the purpose of export, the article of food is not for consumption in India. Hence, Section 25 of the FSS Act is not attracted.” The High Court of Madras in a case concerning the very petitioner, in UNION OF INDIA v. UNIK TRADERS3, has held as follows: “27. The other contention relates to whether price fixation under the notification was on an “artificial basis” as alleged by the learned single judge. The fixation of prices and/or the limits of import/export are matters of economic policy. The scope of judicial review in such matters is extremely minimal keeping in mind that courts are not possessed of the skill and expertise of dealing with matters of economic policy which are best left to the wisdom of the executive. The wisdom of pursuing a particular economic policy is a matter for the executive and not the courts. The parameters of review have been set out in a recent decision of the Supreme Court in Small Scale Industrial Manufactures Association v. Union of India [(2021) 8 SCC 511.] , wherein it was held as under: “60. In catena of decisions and time and again this court has considered the limited scope of judicial review in economic policy matters. From various decisions of this court, this court has consistently observed and held as under: 60.1. The court will not debate academic matters or concern itself with intricacies of trade and commerce. 60.2. It is neither within the domain of the courts nor the scope of judicial review to embark upon 3 2022 SCC OnLine Mad 5021 23 an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review. 60.3. Economic and fiscal regulatory measures are a field where judges should encroach upon very warily as judges are not experts in these matters.” The court concluded by observing as under: “71. The correctness of the reasons which prompted the Government in decision taking one course of action instead of another is not a matter of concern in judicial review and the court is not the appropriate forum for such investigation. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering of the points from different angles. In assessing the propriety of the decision of the Government the court cannot interfere even if a second view is possible from that of the Government.” 28. The second issue that has been framed by this court also stands answered by virtue of the above discussion, since the notification has been issued in line with section 5 of the Foreign Trade Act and we do not find any illegality or diversion in the procedure since the notification was technically issued by the Central Government by authenticating the DGFT to issue the same. Thus, we hold that there was no delegation of power by the Central Government to DGFT and the notification was issued in accordance with section 5 of the Foreign Trade Act and the findings of the learned single judge to the contrary are hereby set aside and the first two issues are answered accordingly. 29. That leaves us with the third issue formulated by us. It was contended by the learned counsel for the writ petitioners that section 11 of the Customs Act gives sufficient power to the Central Government to prohibit or regulate 24 import or export of goods and it can even extend to cases where the Central Government apprehends serious injury to domestic market and even to the interests of the general public at large. Similarly, section 14 of the Customs Tariff Act specifically provides for fixation of tariff and no such tariff was fixed under section 14(2) of the Act. It was hence contended that if at all any restriction on imports or rate of tariff is fixed, a notification can be issued only under the Customs Act and the Customs Tariff Act which are special enactments and the same cannot be done under the Foreign Trade Act which is a general enactment. In order to impress upon the doctrine of generalia specialibus non derogant, various judgments were cited before us. 30. The apex court in Union of India v. Asian Food Industries [(2006) 13 SCC 542.] was dealing with a case where the Central Government banned the export of pulses by issuing a notification under section 5 of the Foreign Trade Act. The apex court considered the effect of section 3(3) of the Foreign Trade Act qua section 11 of the Customs Act and held as follows: “25. Would the terms ‘restriction’ and ‘regulation’ used in Clause 1.5 of the Foreign Trade Policy include prohibition also, is one of the principal questions involved herein. 26. A citizen of India has a fundamental right to carry out the business of export, subject, of course to the reasonable restrictions which may be imposed by law. Such a reasonable restriction was imposed in terms of the 1992 Act. 27. The purport and object for which the 1992 Act was enacted was to make provision for the development and regulation of foreign trade, inter alia, by augmenting exports from India. While laying down a policy therefor, the Central Government, however, had been empowered to make provision for prohibiting, restricting or otherwise regulating export of goods. 28. Section 11 of the 1962 Act also provides for prohibition. When an order is issued under sub-section (3) of section 3 of the 1992 Act, the export of goods would be deemed to be prohibited also under section 11 of the 1962 25 Act and in relation thereto the provisions thereof shall also apply. 29. Indisputably, the power under section 3 of the 1992 Act is required to be exercised in the manner provided for under section 5 of the 1992 Act. The Central Government in exercise of the said power announced its Foreign Trade Policy for the years 2004-2009. It also exercised its power of amendment by issuing the Notification dated June 27, 2006. Export of all commodities which were not earlier prohibited, therefore, was permissible till the said date. 30. The implementation of the said policy was to be made in terms of the procedures laid down in the Handbook. The provisions of the 1992 Act, the Foreign Trade Policy and the procedures laid down thereunder, thus, provide for a composite scheme. In implementing the said provisions of the scheme, in the event an order of prohibition, restriction or regulation is passed, the provisions of the 1962 Act mutatis mutandis would apply.” 31. It is clear from the above that the Foreign Trade Act provides for a composite scheme to the Central Government for regulation of foreign trade and hence, wherever any prohibition, restriction or regulation is imposed by the Central Government under the Foreign Trade Act, the provisions of the Customs Act mutatis mutandis will apply. … … … 36. On a careful reading of the above findings of the apex court, it can be seen that the Central Government has been given very wide powers under section 3(2) of the Foreign Trade Act which includes the power to prohibit, restrict or otherwise regulate in all cases or in specified classes of cases, import or export of goods. When any order is passed by the Central Government under section 3(2) of the Foreign Trade Act, it shall be deemed to have been prohibited or restricted or regulated under section 11 of the Customs Act. The Customs Tariff Act is nothing but an Act which provides for rates at which duties of customs shall be levied under the Customs Act as specified in the First and Second Schedules. This Act is not a stand-alone enactment and it goes along with the Customs Act. Hence, any order passed by the Central Government under section 3(2) of the 26 Foreign Trade Act must be considered to be an exercise of a wide power conferred on the Central Government and the provisions of the Customs Act and the Customs Tariff Act mutatis mutandis will automatically apply. In other words, the Central Government need not issue a separate Notification under the Customs Act and the Customs Tariff Act in this regard. In view of the same, the principle of lex specialis derogat legi generali will not have any application to the case in hand. The third issue formulated by this court is answered accordingly.” (Emphasis supplied) The challenge before the High Court of Madras was to a Notification issued under Section 5 of the Act by the DGFT on the ground that it was arbitrary, unconstitutional and beyond the power conferred upon the DGFT under the Act. The High Court of Madras declined to accept the contention of the petitioner and held that it was within the power of the DGFT to issue such notification in furtherance of the provisions of the Act. Identical submissions were made before the High Court of Gujarat as well in PREMIUM PULSES PRODUCTS v. UNION OF INDIA4, wherein the High Court of Gujarat has held as follows: “19. A perusal of the impugned notification reveals that by virtue of such notification the Central Government, in exercise of powers conferred by section 3 of the Act read with paragraphs 1.02 and 2.01 of the Act as amended from 4 2018 SCC OnLine Guj 4777 27 time to time, has amended the import policy of items of Chapter 7 of ITC(HS)2017, Schedule-1 (Import Policy) as provided thereunder. On a plain reading of the notification, it is clear that powers under section 3 of the Act have been exercised by the Central Government, and it is the Central Government which has amended the import policy. At the same time it can also be seen that such amendment bears the signature of the Director General of Foreign Trade, which is the root cause of the dispute raised in these petitions. On behalf of the respondents it has been contended that the import policy has been amended by the Central Government in exercise of powers under section 3 of the Act and that the DGFT has only authenticated the same in accordance with the Authentication Rules. In support of such submission, a notification dated 16th February, 2002 of the Ministry of Home Affairs whereby an order made by the President on 16.01.2002 has been published for general information has been placed on record, whereby in exercise of powers conferred under clause (2) of Article 77 of the Constitution, rules called the Authentication (Orders and other Instruments) Rules, 2002 have been framed. Rule 2 thereof provides that all orders and other instruments made and authenticated in the name of the President shall be authenticated, and specifies the persons who may authenticate the same. Item No. 12 therein provides that in case of orders and other instruments relating to the Directorate General of Foreign Trade, by the Director General of Foreign Trade, or the Additional Director General of Foreign Trade, or the Export Commissioner or Joint Director General of Foreign Trade. Thus, the Authentication Rules specifically empower the Director General of Foreign Trade to authenticate instruments relating to the Directorate General of Foreign Trade. A perusal of the impugned notification reveals that the same has been issued by the Government of India, Ministry of Commerce and Industries, Department of Commerce, Directorate General of Foreign Trade. Thus, by the impugned notification the amendment made by the Central Government in the import policy in exercise of powers under section 3 of the Act has been notified which relates to the Directorate General of Foreign Trade, accordingly, the same is authenticated by the Director General of Foreign Trade. Therefore, it is 28 crystal clear that the DGFT has not exercised powers under section 3 of the Act but has merely authenticated an order which relates to the Directorate General of Foreign Trade in accordance with the Authentication Rules. The contention that the impugned notification has been issued by the DGFT in exercise of powers under section 3 of the Act, and is, therefore, ultra vires sub-section (3) of section 6 of the Act, does not merit acceptance.” (Emphasis supplied) In the light of the judgments noticed hereinabove, the law is heavily goaded against the petitioner. The entire reliance made by the petitioner is on the interim order granted by the High Court of Kerala staying the impugned notification. The High Court of Kerala has dismissed the writ petition by the afore-quoted order. Therefore, the very fact that the sheet anchor of the petitioner has tumbled down, the present petitions do not deserve any further indulgence in the matter. The challenge to the notification is the same as was done before the High Court of Kerala. The High Court of Kerala having rejected the challenge by the aforesaid order to which I am in complete agreement, there is no warrant of interference in the case at hand. 29 11. An application is filed before the Court to de-stuff the black pepper which is stuffed in the cargo, the score that black pepper is a perishable commodity and would incur huge losses. While incurring of huge loss cannot be considered in the light of the order going against the petitioner, it would be open to the petitioner to get the black pepper de-stuffed from the cargo, in accordance with law. If the petitioner would submit a representation for de- stuffing of black pepper lying in the cargo, the respondents shall consider the same and pass necessary orders in accordance with law, in the light of the fact that if black pepper is permitted to be perished, it neither benefits the petitioner nor the Authorities. 12. Finding no merit in these petitions, the petitions stand rejected. Sd/- JUDGE nvj CT:SS "