Kerala High Court
Marine Fins vs Union Of India on 26 March, 2019
Equivalent citations: AIRONLINE 2019 KER 839
Author: Hrishikesh Roy
Bench: Hrishikesh Roy, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
TUESDAY, THE 26TH DAY OF MARCH 2019/5TH CHAITHRA, 1941
W.A.NO.924 OF 2016
AGAINST THE JUDGMENT DATED 9.3.2016 IN W.P(C).NO.13728/2015
OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
MARINE FINS
2/266, CALVATHY, KOCHI, PIN 682001,
REPRESENTED BY ITS PROPRIETRIX FATHIMA BEEVI T.A.
BY ADV. SRI.M.A.ABDUL HAKHIM
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY,
MINISTRY OF COMMERCE AND INDUSTRY,
UDYOG BHAVAN, NEW DELHI, PIN 110001.
2 DIRECTOR GENERAL OF FOREIGN TRADE
DEPARTMENT OF COMMERCE,
MINISTRY OF COMMERCE AND INDUSTRY,
UDYOG BHAVAN, NEW DELHI, PIN 110001.
3 SECRETARY
MINISTRY OF ENVIRONMENT,FOREST AND CLIMATE CHANGE,
UDYOG BHAVAN, NEW DELHI, PIN 110001.
4 THE COMMISSIONER OF CUSTOMS
CUSTOMS DEPARTMENT, KOCHI,PIN 682018.
BY ADV.SHRI.P.VIJAYAKUMAR, ASG OF INDIA
BY ADV.SRI.SREELAL N. WARRIER, SC,
CENTRAL BOARD OF EXCISE & CUSTOMS
BY ADV.SRI.JAISHANKAR V.NAIR, CGC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
W.A.No.924/2016 : 2 :
JUDGMENT
Hrishikesh Roy, C.J.
Heard Sri.M.A.Abdul Hakhim, the learned counsel appearing for the appellant. Also heard Sri.Jaishankar V. Nair, the learned Central Government Counsel, appearing for the respondents.
2. This case is posted before us on account of the order passed by the Supreme Court on 16.1.2019, in the Civil Appeal No.830 of 2019. The litigation in this Court was initiated by the aggrieved exporter of Shark Fins, to challenge the ban on export of Shark Fins of all the species of Sharks, imposed through notification dated 6.2.2015 (Ext.P3). While the learned Single Judge as well as the Division Bench, upheld the ban notification, in paragraph 65 of the judgment dated 29.5.2018, the Division Bench had observed that the exporter can clear the fin stock accumulated until 31.12.2017. This part of the judgment was challenged by the union of India, which led to the recent order dated 16.1.2019 by the Supreme Court.
3. The learned counsel Sri. M.A. Abdul Hakkim would point out that the direction in paragraph 65 was issued on the basis of the I.A. No.267 of 2018, where the appellant had indicated that the exporter had accumulated stock to the extent of 6442 Kgs of dried Shark Fins and those be permitted to be exported, in terms of the liberty granted by the Division Bench in the judgment W.A.No.924/2016 : 3 : dated 29.5.2018.
4. However, the learned Central Government Counsel Sri. Jaishankar V. Nair would submit that the I.A. No.267 of 2018 was filed when the judgment was reserved in the Writ Appeal No.924 of 2016, and therefore, the respondents had no opportunity to file any response to the I.A. No.267 of 2018 and that is why the Supreme Court has ordered for a re-visit by the High Court, of the paragraph 65 direction.
5. In the recent counter affidavit filed by the Joint Director of Foreign Trade, in response to the I.A.No.267 of 2018, it is averred that the power to formulate the Foreign Trade Policy [FTP] is vested on the Central Government, and in exercise of powers under Section 5 of the Foreign Trade (Development & Regulation) Act read with Para 1.03 of the Foreign Trade Policy 2009 - 2014, the prohibition on export of Shark Fins of all species of Shark has been imposed, under the Notification dated 6.2.2015 [Ext.P3], issued by the Ministry of Commerce and Industry. It is the specific averment in the counter affidavit that the appellant has acquired additional stock of Shark Fins during the pendency of the proceedings before the Court, even while the prohibition order on export of Shark Fins, was in place.
6. On the other hand the Appellant would contend that the Shark Fins were accumulated bona fide during the pendency of the Writ Appeal and therefore the stock in the hand of the exporter was allowed to be exported by the Division Bench on 29.5.2018. Such permission was granted, according to W.A.No.924/2016 : 4 : Mr.Hakim, to balance the equities. The learned counsel would also submit that since there is no domestic demand for Shark Fins, the only way the Appellant can dispose of his stock is through export, and therefore, they be permitted to export the stock in hand, as was permitted by the Division Bench in paragraph 65 of the judgment dated 29.5.2018.
7. In the challenge of the Central Government to the above permission granted in paragraph 65 of this Court's judgment in the W.A.No.924 of 2016, the Supreme Court, while disposing of the SLP (C) D.No.42932/2018 on 16.1.2019, had noted that only after judgment was reserved on 23.2.2018, the appellant had filed an affidavit setting out the relevant details towards the stock of Shark Fins, accumulated by them. The permission to export the accumulated stock was without providing any opportunity to the Central Government to respond to the exporter's affidavit. Therefore the Supreme Court considered it appropriate to set aside paragraph 65 of the judgment in the W.A.No.924 of 2016 and remanded the matter back to this Court for fresh consideration, on whether the appellant should be allowed to export the stock accumulated during the pendency of the Appeal.
8. As is relevant to note in the above context that the appellant is an exporter, and had not procured the Shark Fins for domestic business. They were well aware of the prohibition on export of Shark Fins, imposed through the Notification dated 6.2.2015 [Ext.P3]. The challenge of the exporter to the Ext.P3 Notification was negated by the learned Single Judge through his judgment dated 9.3.2016 and this judgment in the W.P.(C).No.13728 of 2015 W.A.No.924/2016 : 5 : was upheld by the Division Bench, through the judgment dated 29.5.2018. In such circumstances, a prudent party wouldn't gather more of the prohibited item, except by way of a risky gamble. Therefore a claim based on equity to allow the export of the accumulated stock of Shark Fins can hardly be entertained, since, it would tantamount to permitting something, which is prohibited by the Ext.P3 Notification, which was not interdicted by this Court. In the absence of any interference by the Supreme Court, with this Court's refusal to interfere with the Ext.P3 notification, there can be no justification to permit the appellant to export the prohibited item, collected at their own peril.
9. When there is no domestic demand for the prohibited item, in the absence of anything to suggest that the Shark Fins were procured only from dead Sharks caught for food, it would be reasonable to believe that the Shark Fins were procured through the gruesome Finning practice of extracting fins from live Sharks and discarding the carcass at sea. Bearing in mind the ban on export of the item and the lack of local demand for Shark meat, it would not be reasonable to allow the Appellant to profit from the fruit of such cruel practice. Therefore, equitable consideration will not be available for the Exporter.
10. In light of the above discussion, we are of the considered opinion that the issue referred to us for adjudication by the Supreme Court has to be answered against the Appellant and in favour of the respondents. Accordingly, we decline to allow to export of the accumulated stock of Shark Fins [6422 Kgs.] as prayed for, through the I.A.No.267 of 2018. W.A.No.924/2016 : 6 :
11. Next question is what is to be done with the accumulated stock of Shark Fins, in the hands of the appellant. Since it cannot be exported, the Appellant has the option of using it domestically for permitted purpose. But, if this is not feasible, they would be expected to destroy the accumulated stock, under the supervision of the Customs Authorities. The appellant should therefore intimate the Customs Authorities on permissible domestic use of the stocked items with appropriate End Users certificate and in that event, the Authorities would allow the appellant to use the Shark Fins for the permitted purpose. But, if such domestic use is not identified, steps will have to be taken by the appellant to destroy the accumulated stock of Shark Fins in an environmentally friendly manner, under the supervision of the Customs Authorities. Such process is ordered to be undertaken within eight weeks from today.
12. With the above order, the Appeal and the I.A.No.267 of 2018 stand disposed of.
Sd/-
HRISHIKESH ROY CHIEF JUSTICE Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE prp/26/3/19 W.A.No.924/2016 : 7 : APPENDIX PETITIONER'S EXHIBITS:
EXT.P1: COY OF THE CERTIFICATE OF IMPORTER - EXPORTER ISSUED BY THE JOINT DIRECTOR GENERAL OF FOREIGN TRADE, COCHIN.
EXT.P2: COPY OF THE REGISTRATION CUM MEMBERSHIP CERTIFICATE ISSUED BY THE MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY TO THE PETITIONER.
EXT.P3: COPY OF THE NOTIFICATION NO.110 (RE) - 2013/2009- 2014 ISSUED BY THE 2ND RESPONDENT.
EXT.P4: COPY OF THE NOTIFICATION NO.111 (RE) - 2013/2009- 2014 ISSUED BY THE 2ND RESPONDENT.
EXT.P5: COPY OF THE LETTER SUBMITTED BY MINISTER FOR WOMEN AND CHILD DEVELOPMENT TO THE MINISTER OF STATE FOR COMMERCE AND INDUSTRY.
EXT.P6: COPY OF THE APPLICATION UNDER THE RTI ACT SUBMITTED BY THE AGENT OF THE PETITIONER TO THE 3RD RESPONDENT.
EXT.P7: COPY OF THE REPLY ISSUED BY THE 3RD RESPONDENT TO THE AGENT OF THE PETITIONER.
EXT.P8: COPY OF THE PURCHASE ORDER ISSUED BY GOLDEN SEA PRODUCTS SINGAPORE TO THE PETITIONER.
EXT.P9: COPY OF THE PURCHASE ORDER ISSUED BY MAN FUNG SEA PRODUCTS TRADING COMPANY, HONGKONG TO THE PETITIONER.
RESPONDENTS EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE