Vinayaga Marine Petro Limited v. Union of India & Ors.

9. Whenever a legislation is published or made, ithas to be publicised as was emphasized by the Supreme Court in B.K Snnivasan and Others •P I n versus State ofKarnataka and Others, (1987) 1 SCC 658 in the following words

know that delegated or subordinate legislation is allpervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by parliamentary legislation. But unlike parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute ornot. It ^ will then take effect from the date of such publication or ^ promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Wliere the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such amode ofpublication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient [Namyana Reddy v. State ofA.P., 1969 (1) Andh WR 77 The aforesaid quotation stipulates the proposition that every legislation, be it parliamentary or subordinate legislation, must be notified and this act of notification must be by means ofpublication or promulgation in a suitable and reliable manner. It is only from the date of publication orpromulgation that the statute becomes effective and to be followed. Where the parent statute is silent, the subordinate legislation itself may prescribe the manner of publication, which it considers as reasonable. In the absence of stipulation, both in the parent statute and in the subordinate legislation, it { will be effective only when it is published through the customarily recognized official channel i.e. Official-Gazette or some other reasonable mode of publication. However,'in c^sbs.where subordinate legislation concerns with a few individuals and cqnfined to small local areas, other means ofpublication may be |uffieient; 'Reference was made to Narayana Reddy versusState ofA.P., 1969 (1)Andh WR77.

10. Reference in this regard can be also made to the judgment of a Full Bench of Kerala High Court in R.K.V. Motors & Timbers (P) Ltd. and Others versus Regional Transport Officer andAnother, AIR 1982 Ker 156 in which Sukumaran J. had highlighted the modes of publication after referring to the jurisprudence on the said subject and earlier decisions ofthe Supreme Court including decision in the case of Harla versus State of Rajasthan, AIR 1951 SC 467.

11. The Supreme Court in Union of India & Anr. versus Ganesh Das Bhojraj, (2000) 9 SCC 461, decided the reference to resolve conflict of T ratios in Pankaj Jain Agencies versus Union ofIndia andothers, 1994 (5) see 198 and CCE versus New Tobacco Company, (1998) 8 SCC 282 on the question whether publication in the Official Gazette also mandates notification, being made known and available to the public. We are not concerned with the said controversy in the present case for the issue raised in the present writ petitions is not whether publication in the Official Gazette was sufficient or the notification should have been made available to the public. The issue in the present cases is somewhat different. The contention of the petitioners is that the Notification No.38/2015-2020 though made public on 5^'' February,2016 was pubHshed in the Official Gazette only on ll"' Febmary, 2016, and therefore prior notice in the fonn of trade notice, was not material and relevant. Judgment in Ganesh Das Bhojraj (supra) does emphasis on thepublication in the Official Gazette.

12. The Supreme Court in Union of India versus Param Industries Limited, (2016) 16 SCC 692 had dealtrwith, and examined the issue of customs notification under Section; ^ Customs Act, 1962 (the 'Customs Act', for short) and'haLS:-hblia% condition of publication of notification in the Official Gazette is mandatory.

13. Recently, the Supreme. Court in Director General of Foreign Trade and Another versus Kanak Exports and Another, (2016) 2 SCC 226 had held that subordinate legislation could only be prospective and not retrospective unless the rule making authority was vested with the power to make retrospective subordinate legislation under the statute. Section 5 of the FT Act does not give such power to the Central Government to modify the policy retrospectively.

14. Therefore, in tenns of the decisions we have no difficulty in holding that the Notification No.38/2015-2020 though made public by way of trade notice on 5'^ February, 2016 fixing MIP against 173 HS Codes under Chapter-72 of the ITC (HS)-2012, Schedule-I (Import Policy) would be effective and applicable from ll"^ February, 2016. However, this does not imply that the writ petitions would succeed and have to be allowed for the 'imports' into India were made on or after 11"^ February, 2016, i.e., the date on which the Notification has been published in the Official Gazette. Notification is not being given retrospective effect to make it effective to 'imports' made from a date prior to publication in the Official Gazette. Notification was effective from,the date when it was published in the Official Gazette and accordingly,would iapply to 'imports' made on or after f il^''February, 2016. •.

15. The question is somewhat different,-' it is; whether 'import' made after 11"" February, 2016 would be exempt ifthe import/shipment were under the LoCs which were opened prior, tp..11'^ 2016. Petitioners have challenged paragraph 2 of the'Notificiajtion^ on the ground that it restricts benefit to LoC opened prior to 5'^ February, 2016 on which date Notification No.38/2015-20 was published as a trade notice but had not been published in the Official Gazette." According to the petitioners the date ofpublication in the Official Gazette should also be the date in paragraph 2 which relates to LoCs.

16. Decision of the Supreme Court in Union ofIndia and Others versus Asian Food Industries, (2006) 13 SCC 542 is illustrative and makes an interesting reading for ithad decided two appeals, one preferred against the decision of the Delhi High Court in the case of M/s Agri Trade India Services (P) Ltd. and the other against the decision of the High Court of Gujarat in the case ofM/s Asian Food Industries with contradictory final results. Decision of the Delhi High Court was set aside but decision of the Gujarat High Court was upheld though subject matter of litigation was a legal effect ofthe decision taken by the Central Government to ban export of pulses on 22"'' June,2006, which decision was widely reported in print and electronic media, albeit the notification issued banning export of pulses for a period ofsix months in exercise ofpower under Section 5 ofthe FT Act was published in the Official Gazette on 27*'' June,2006. By another Notification on 4'^ July, 2006 published under Section 5 of the FT Act the Central Government had permitted export ofpulses against irrevocable LoCs opened prior to 22"'' June, 2006. In the SLP arising out of the Delhi High Court judgment in the case of M/s Agri Trade India Services (P) Limited, irrevocable LoC for export of pulses in favour of the Indian exporter was opened on 24"^ June, 2006, i.e., between 22"'' June, 2006 when the Central Government's decision to ban export of pulses, was reported in electronic and print media and 27"" Jun42004,tM;date,when the Notification banning export ofpulses was published in the Official Gazette under Section 5ofthe FT Act. In the case of, M/s Asian Food Industries arising from the judgment of the Gujarat High Court' coiitracts for export of pulses were executed between 22"'' April, 2006 and 2"'' May, 2006 and advance of approximately 20% of the contract value was received by the Indian party from the importers on 9^^ May, 2006. 20 containers out of 107 containers were shipped during the period 22"'' June, 2006 and 24"^ June, 2006. Remaining 87 containers were also cleared vide Let export orders dated 23"' June, 2006, 24"' June, 2006 and 26"' June, 2006. The judgment specifically records that the bill of lading were also issued. 6 0-

17. The reason for allowing the appeal of the Revenue in the case of M/s Agri Trade India Services (P) Limited and dismissing the appeal in Asian Food Industries were the statutory provisions of the Customs Act which it observed was enacted to consolidate and amend the law relating to Customs. Section 11 of the Customs Act it was held empowered Central Government to prohibit importation and exportation ofgoods and Section 16 provides for the date for determination of rate of duty and tariff valuation of export goods. After reproducing Section 16 and referring to Sections 39, 50 and 51 of the Customs Act and Sections 3 and 5 of the FT Act it was held that the charge or due date for determination ofrate of duty and tariff valuation for export of goods would be either the date of payment of duty or in case of goods entered for export under Section '50 of the Customs Act-the date on which the proper officer made an order permitting clearance and loading of goods for exportation under Section 51 of^the Customs Act. The provisions of the Customs Act and the FT Act were read hannoniously for the latter statute stands enacted to provide for development and regulation of foreign trade by facilitating imports irij|ndia.-and:alig^^ exports from India and for matters connected therewith or incidental thereto. Former statute was the substantive enactment dealing with levy, incidence of charge and payment of customs duty. For the FT Act, the Central Government was empowered to publish their order vide notification in the Official Gazette for development and regulation of foreign trade and make provisions for prohibiting, restricting or otherwise regulating in all cases or specified classes of cases and subject to such exceptions as may be made byorunder order ofexport and import ofgoods. Wliere an order has been made under sub-section (2) to Section 3 vide sub-section (3) to Section 3 ofthe FT Act, it would be deemed to be applicable to import and export ofwhich has been prohibited under Section 11 of the Customs Act. All provisions of the Customs Act would have effect accordingly. On analysis of Section 11 of the Customs Act and the Notification dated 27"" June, 2006 in exercise of power under Section 3 ofthe FT Act and published in the manner provided under Section 5 of the FT Act it was held that export of pulses was permissible till 27"' June, 2006 and not thereafter. For deciding the date of export, Section 11 read with Section 50 ofthe Customs Act enjoined a duty upon the exporter to make entry bypresenting the shipping bill tothe proper officer and thereupon the proper officer was to arrive at a satisfaction (i) that the export ofgood was not prohibited and (ii) that the exporters had paid the duty assessed thereon and the charges 'payable there under. Thereupon, the Customs Officers would make an order.for clearance and loading of the goods for export. Reference was made, to the foreign trade policy, that whenever policy provisions as amende,d were disadvantageous to the exporters or importers, the same would?not be apphcable to consignments already handed over to the Customs;for examination and subsequent export upto the date ofpublic notice.',:./Refere:n^^^ also made to paragraph 9.12 of the policy. On the factual matrix in the case of M/s Agri Trade India Services (P) Limited, it was observed that the requirements ofSection 51 of the Customs Act had been complied with in the said case, albeitin the case ofM/s Agri Trade India Services (P) Limited they were not complied with. Referring to the decision ofthe Delhi High Court inM/s Agri Trade India Services (P) Limited, it was observed:- "48.The Delhi High Court, however, in our view correctly opined that the Notification dated 4-7-2006 could not have been taken into consideration on the basis ofthe purported publicity made in the proposed change in the export policy in electronic or print media. Prohibition \ a promulgated by a statutory order in terms of Section 5 read with the relevant provisions of the. policy decision in the light of sub-section (2) of Section 3 of the 1992 Act can only have a prospective effect. By reason of a policy, a vested or accrued right cannot be taken away. Such a right, therefore, cannot a fortiorihQ taken away by an amendment thereof"

18. The aforesaid reasoning and ratio states thatthe notification published on 27"' June, 2006 banning 'export' of pulses did not have retrospective effect, and would apply to the 'exports' made on or after 27"^ June, 2006 in terms of Sections 16, 50 and 51 of the Customs Act. Date of 'export' would be determined by reference to the date of 'export' as per the Customs Act. Thus, notwithstanding that an irrevocable LoC was opened on 24"' June, 2006 the decision of Delhi High Court Was reversed the 'export' was post 26"' June, 2006 i.e. after the Notification dated 22"" June, 2006 had been published in the Official Gazette. However, in the case of Asian Food i Industries, the appeal preferred bythe Revenue was dismissed with costs as the 'export' had taken place in terihs-Qf;3ections 16, 50 and 51 of the Customs Act before publicatiqn ofl; tlife,Ga^ Notification on 27"' June,

2006. Exemption granted on the basis ofthe date of issue or opening ofthe LoCs couldbe different and such exemption could be restricted to the LoCs opened prior to 22"" June,2006. •.•'

19. We would now refer to decision of the Supreme Court in Mangalore Refinery and Petrochemicals Limited versus Commissioner of Customs, Mangalore, (2016) 14 SCC 709, which had examined the expression 'import' in the Customs Act after making a reference to sub-sections 22, 23 and 25 of Section 2 of the Customs Act which defines 'goods', 'import', 'imported goods'. Section 12 dealing with dutiable goods, Section 13 dealing with duty on pilfered goods, Section 23 dealing with remission of duty on lost, destroyed and abandoned goods. Section 47 dealing with clearance of goods for home consumption and Rules 2(1)(f) and 4(1) ofthe Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, to observe as under:- "9. On a reading of the aforesaidprovisions, it is clear that the levy of customs duty under Section 12 is only on goods imported into India. Goods are said to be imported into India when they are brought into India from a place outside India. Unless such goods are brought into India, f-" the act of importation which triggers the levy does not take place. If the goods are pilfered after they are unloaded or lost or destroyed at any time before clearance for home consumption or deposit in a warehouse, the importer is not liable to pay the duty leviable on such goods. This is for thereason thatthe import of goods does not take place until they become part of the land mass of India and until the act of importation is complete which under Sections 13 and 23 happens only after an order for clearance for home consumption is made and/or an order permitting the deposit of goods in a warehouse is made. Under Section 23(2) the owner of the imported goods ^ may also at any time before such orders have been made ^ relinquish his title to the goods and shall not be liable to pay any duty thereon. In short, he may abandon the said goods even after they have physically landed at any port in India but before any of the aforesaid orders have been made. This again is for the good reason that the act of importation is only complete when goods are in the hands of the importer after they have been cleared either for home consumption or for deposit in a warehouse. Further, as per Section 47 of the Customs Act, the importer has to pay import duty only on goods that are entered for home consumption. Obviously, the quantity of goods imported will be the quantity of goods at the time they are entered for home consumption. r

10. Even under Section 14 of the Customs Act, when goods are to be valued for the purpose of assessment, such valuation is only when the goods are ordinarily sold or offered for sale for delivery at the time and place of importation in the course of international trade. It is thus seen that under the Customs Act, the levy of import duty cannot take place until goods are imported, that is, brought into India. Obviously, therefore, it is the quantity of goods brought into India alone that attracts the levy of import duty. xxxxx

14. We are afraid that each one of the reasons given by the Tribunal is incorrect in law. The Tribunal has lost sight of the following first principles when it arrived at the aforesaid conclusion. First, it has lost sight of the fact that a levy in the context of import duty can only be on imported goods, that is, on goods brought into India from a place outside of India. Till that is done, there is no charge to tax. This Court in Garden Silk Mills Ltd. V. Union ofIndia [Garden SilkMills Ltd. v. Union of India, (1999) 8 SCC 744], stated that this takes place, as follows: (SCC p. 752, paras 17-18) "7 7. It was further submitted that in Apar (P) Ltd. [Union ofIndia w. Apar (P) Ltd., (1999) 6 SCC 117] this Court was concerned with Sections 14 and 15 but here we have to construe the word "imported" occurring in Section 12 and this can only mean that the moment goods have enteredthe territorial waters the import is complete. We do not agree with the submission. This Court in its opinion in Sea Customs Act, 1878, S 20(2), In re [Sea Customs Act, 1878, S 20(2), In re, AIR 1963 SC 1760: (1964) 3 SCR 787] SCR at p. 823 observed as follows: (AIR p. 1776, para 26) '2(5.... Truly speaking, the imposition of an import duty, by and large, results in a condition which must be fulfilled before the goods can be brought inside the customs barriers i.e. before they form partofthe mass of goods within the country.'

18. It would appearto us that the importof goods into India would commence when the same cross into the territorial waters but continues and is completed when the goods become part of the mass of goods within the country; the taxable eventbeing reached at the time when the goods reach the customs barriers and the bill of entry for home consumption is filed."

15. Secondly, the taxable event in the caseof imported goods, as has been stated earlier, is "import". The taxable event in the case of a purchase tax is the purchase of goods. The quantity of goods stated in a bill of lading would perhaps reflect the quantity of goods in the purchase transaction between the parties, but would not reflect the quantity of goods at the time and place of importation. A bill of lading quantity therefore could only be validly looked at in the case of a purchase tax but not in the case of an import duty. Thirdly, Sections 13 and 23 of the Customs Act have been wholly lost sight of Where goods which are imported are lost, pilfered or destroyed, no import duty is leviable thereon until they are out of customs and come into the hands of the importer. It is clear therefore that it is only at this stage that the quantity of the goods imported is to be looked at for the purposes ^ of valuation. Fourthly, the basis of the judgment of the T Tribunal is on acomplete misreading of Section 14 ofthe Customs Act. First and foremost, the said section is a section which affords the measure for the levy of customs duty which is to be found in Section 12 of the said Act. Even when the measure talks of value of imported goods, it does so at the time and place of importation, which again is lost sight of by the Tribunal. And lastbut notthe least, "transaction value" which occurs in the Customs Valuation Rules has to be read under Rules 4 and 9 as reflecting the aforesaid statutory position, namely, that valuation of imported goods is only at the time and place of importation."

20. Paragraph 14 of Mangalore Refinery and Petrochemicals //w/re<supra) quoted above refers to an earlier judgment of the Supreme Court in Garden Silk Mills Limited versus Union ofIndia, (1999) 8 SCC 744, which holds that the import of goods into India would commence from the date the goods cross into the territorial waters but continued till the duty was paid when the goods become part of the mass of goods within the country. The taxable event was reached when the goods reach the customs barriers and bill of entry of home consumption was filed. In the facts of Mangalore Refinery andPetrochemicals Limited (Supra), it was observed that no import duty was leviable when the goods shipped were lost, pilfered or destroyed before the 'import' i.e. before the goods were out of customs and came into the hands of the importer.,The.quantity of goods stated in the bill of lading would reflect the quantity.ofgoods in the purchase transaction between the parties and not the,'quantity pf goods at the time and place of f 'import'. ' if'.,,,

21. The aforesaid ratio iri.^both/'i/i^ Industries and M/s Mangalore Refinery and Petrochemicdls Limited (supra) is apt and would apply to the present writ petitions. Notification No.38/2015-2020 dated 5"^ February, 2016 published in the Official Gazette on ll"'February, 2016 was in force onthe date of 'import' of goods' by the petitioners asthe 'import' was post publication in the Official Gazette on ll"^ Febmaiy, 2016. We would not begiving retrospective effect to Notification No.38/2015-2020, when we hold that it would apply to all 'import' on or after ll"^ February, 2016. In fact, we would be following the ratio and mandate inAsian FoodIndustries (supra) and Mangalore Refinery and Petrochemicals Limited (supra). Consequently, the argument that the respondents have given retrospective •f" \ effect to the Notification No.38/2015-2020, which can be only prospective, falters and is rejected.

22. On the said aspect, we would like to refer to paragraphs 2.17 and 9.11 of the Handbook of Procedure and Appendices & Aayat Niryat Forms of FTP 2015-2020, which read as under:- "2.17 Date of reckoning of import is decided with reference to date of shipment/dispatch of goods from supplying country as given in Paragraph 9.11 of Handbook of Procedures and not the date of arrival of goods at an Indian port." "9.11 Date of shipment/dispatch for imports will be reckoned as under:- S.No Mode oif Transportation < Date of Shipment/Dispatch

(i) By Sea The date affixed on the Bill of Lading

(ii) By Air ' Datei' of relevant Airway Bill provided this, represents date on which goods left •last ai^ort in the country from which •the import is';effected.

(ii) From land-Locked.•-

Countries •Date'ibf dispatch of goods by rail, road or other recognized mode of transport to consignee in India tlirough consignment basis.

(iv) By Post Parcel. Date stamp of office of dispatch on the packet or dispatch note

(v) By Registered

(vi) Multimodal

23. We would now examine the argument of the petitioners relating to the paragraph 2ofthe Notification No.38/2015-2020 granting exemption of imports/shipments made under the irrevocable LoCs opened prior to 5 February, 2016 relying upon paragraph 1.05(b) ofthe Foreign Trade Policy, 2015-2020, which reads as under:- "In case an export or import thatis permitted freely under FTP is subsequently subjected to any restriction or regulation, such export or import will ordinarily be permitted, notwithstanding such restriction or regulation, unless otherwise stipulated. This is subject to the condition that the shipment of export or import is made within the original validity period of any irrevocable commercial letter of credit, established before the date of imposition of such restriction and it shall be restricted to the balance value and quantity available and time period of such irrevocable letter of credit. For operationalising such irrevocable letter of credit, the applicant shall have • to register the Letter of Credit with jurisdictional Regional Authority (RA) against computerized receipt, within 15 days of the imposition of any such restriction or regulation."

24. Foreign Trade Policy, 2015-2020 U in the form of delegated or subordinate legislation. Object\ahd;purpo,se, of'the Foreign Trade Policy was examined inAsian Food//i</M5^n^5'-,,(swpra).* A'carefiil reading ofparagraph 1.05(b) shows that the clause states tliafwhere import or export was freely permitted is subjected to any restriction or regulation, such restriction would not be given retrospective effect unless otherwise stipulated. This general principle is subject to the condition that the shipment of export or import should be made within the original validity period of any irrevocable commercial LoC, that was estabhshed before the date of imposition ofsuch restriction. Exemption shall be restricted to the balance value and quantity available and time period for operationalization of such irrevocable LoCs and the applicant shall have to register the LoC with the jurisdictional revisional authority. Respondents in the present case by trade notice NO. 3/2016 dated 21'' April, 2016 had extended the date of registration till 30"' April, 2016. The petitioners state that they had applied for registration of the LoCs within the stipulated period, but the registration was notgranted on the ground that the LoCs had not been issued prior to the date of public notice, i.e., 5"' February, 2016, notwithstanding the fact that Notification No.38/2015-2020 was pubhshed in the Official Gazette on ll"' February,

2016.

25. The aforesaid submission, according to us, does not have any merit for the Notification No. 38/2015-2020 published in the Official Gazette on ll"' February, 2016 in paragraph,[2] specifically states that import/shipment under the LoCs entered into before the date of notification shall be exempt from the MIP, subject to the satisfaction of the conditions stated in paragraph 1.05 of the Foreign Trade' Policy 2015-2020. Notification No.38/2015-2020 even if it was published in the Official Gazette on ll"" February, 2016 had specific,, e:^empdon,in restricting the same to import/shipments under LoCs,opened;iirio^;,^^^^ date of Notification, i.e., 5"" February, 2016. Paragraph 2offc No.38/2015-2020 refers to the 'date of the Notification' and not the date on which it was published in the Official Gazette. In the present case, the LoCs'were opened between 5"" February, 2016 till 11'*^ February, 2016, when the Notification No. 38/2015- 2020 was uploaded on the web-site ofthe Respondents on 5"" Februray,2016 and was published in the Official Gazette on 11'*^ February, 2016. No doubt, paragraph 2refers to paragraph 1.05 ofthe Foreign Trade Policy 2015-2020, but inthe context that the importers would comply with the conditions stated therein, i.e., the condition for registration. Conditions regarding opening of LOCs before 5th February, 2016 would over-ride and prevail over paragraph 1.05(b) ofthe Foreign Trade Policy 2015-2020, as provided and stated in the clause itself. Expression " unless othei-wise stipulated" in paragraph 1.05(b) would apply as paragraph 2 of the Notification No.38/2015-2020 stipulates to the contrary. The factual position in the present writ petitions is identical in facts in the case ofM/sAgri Trade India Services (P) Ltd. decided bythe Supreme Court in M/s Asian Food Industries (supra), in faVour of the Revenue.

26. In light of the aforesaid discussion, ourconclusions are as under:-

(i) That Notification No.38/2015-2020 dated 5"' February,

2016 would be effective and applicable to 'imports' made on or after 11'^ February, 2016,. i.e.', the date on which it was published in the Official Gazette. It wbuld not apply to any 'imports' as made on 10 "'February orbefore.;

(ii) Interms ofparagi"aph'2 ofthe Notification No.38/2015-

2020 dated 5"' February,'20-16Effective from date ofpublication in the Official Gazette-^^^^JF^bmaiy, 2016, an exemption has been granted for impb,^shipjn the irrevocable LoCs entered into before the date of the Notification, i.e., 5"^ February,

2016. For the, purpose of paragraph 2 of the Notification No.38/2015-2020 dafed ^'-Februaiy, 2016, the date of pubhcation in the Official Gazette is not prescribed and is not relevant. The date 5'*^ February, 2016 is a valid date in respect of shipments/imports made under the irrevocable LoCs for this was the date on which the decision of the Central Government to impose MIP was put on the web-site and made known to public, though it was not gazetted. T

27. The contention that the Gazette Notification quoted above is invahd as it was not an order of the Central Government under Section 3 read with Section 5 of the FT Act is erroneous and should be rejected. Notification in the heading states; published by the Ministry of Commerce and Industry, Department of Commerce, Director General of Foreign Trade. The first paragraph ofthe Notificationrecords "the Central Government hereby amends the import policy conditions against 173 HS Codes underChapter 72 andhad imposedthe conditions as per annexure". Clearly, this is a Notification by the Central Government and not an act of delegated legislation exercised by the director General of Foreign Trade under sub-section (3) to Section 6 bf the FT Act. Section 6 (3) of the Act states that the Central Government may by an order published in the Official Gazette authorise the" Director General or such other officers,1- ' subordinate to him to exercise any powbr bnder the Act, except powers under Sections 3, 5, 15, 16 exercise of powers under Sections 3, 5, 15, 16 and 19 o||heFTi|pt'cam^^ delegated. Notification No.38/2015-2020 has not been issue'drbyGeneral of Foreign Trade under apower delegated tohim bythe Central Government.

28. The Notification in question is issued by the Central Government and would be in terms of Article 77 of the Constitution of India. We would elaborate this aspect a little further, but first notice that the Director General ofForeign Trade is appointed by the Central Government under sub-section (1) to Section 6 ofthe FT Act. Director General is to advise the Central Government in formulation of Foreign Trade Policy and is responsible for carrying out the policy. As noted above, on plain reading ofNotification No.38/2015-2020, it is apparent that the Notification was issued by the Central Government, for the Notification states that Central Government hereby amends the import policy. The decision taken to amend and issue the Notification was of the Central Government.

29. Referring to the constitutional provisions, the Supreme Court in Delhi International Airport Limited versus International Lease Finance Corporation and Others, (2015) 8 SCC 446 had referred to Articles 77 and 163 of the Constitution and held that in respect of former Article, the Constitution stipulates that whenever executive action is taken byway ofan order or instrument it shall be expressed to be taken in the name of the President in whom the executive power of the Union is vested. Under sub section (3) to Article 77, the President is to.make Rules for more convenient transaction of business and allocation ofi same amongst Ministers. The Article does not provide for delegation; of any power. Under the Government of India (Transaction of,.Business) Rules, 1961, the Government business is divided amongst Mm and specific functions are allocated to different Ministries:; dilate further on Article 77 except notice that clause ^-to^^rSclf'#^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 oh the'ground that it is not an order or an instrument made or executed by the President.

30. The website of the Ministry of Commerce and Industry, Department of Commerce, states that Director General ofForeign Trade is an agent of the Central Government and attached office to it.

31. The Notification No.38/2015-2020 is a Notification of the Central Government under Section 3 read with Section 5 of the FT Act as stated in JO the Notification itself. It is not aNotification published by Director General ofForeign Trade as adelegatee ofthe Central Government performing any act traceable to delegation under sub-section (3) to Section 6ofthe FT Act. Merely because Director General ofForeign Trade had puWished the order on behalfofthe Central Government/Government ofIndia would not affect its legality and make the Notification invalid. Such notifications have been issued since long and we have come across, in fact, an order issued as early as on 31" December, 1993. The respondents have also pointed out that the Director General of Foreign Trade is ex offlcio Additional Secretary in the Government ofIndia. This being the position, the second contention ofthe petitioners isrejected. ' V - ' r": ' •v;, •. '

32. For the aforesaid reasons'^ writpetitions are dismissed. However, in the facts ofthe case, there wouldbe no order as to costs. f I '(SANJIVKHANNA) ", i '?') JUDGE V- „ r • i

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