Calcutta High Court (Appellete Side)
Tanvi Impex vs Union Of India & Ors on 26 November, 2018
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
26.11.2018.
Item no. 6.
Court No. 1
pd/ap
M.A.T. No. 1405 of 2018
With
CAN 8761 of 2018
Tanvi Impex
Versus
Union of India & Ors.
Mr. Saptangshu Basu,
Mr. Rajdeep Mazumder,
Mr. Mayukh Mukherjee.
...For the Appellant.
None appears on behalf of the respondents in spite of
service of copies of the Memorandum of Appeal and this application upon the respondents.
Let the affidavit-of-service filed in Court today by the learned Advocate for the appellant be kept on record.
In Re: CAN 8761 of 2018 (Stay) This application arises out of an appeal preferred against the judgment and order dated September 27, 2018 passed in the writ application rejecting the same.
Having heard Mr. Saptangshu Basu, learned Senior Advocate appearing on behalf of the appellant, we find that the subject matter of challenge in the writ application was a Notification bearing No.32/2015-2020 dated August 30, 2018 2 issued by the Director General of Foreign Trade and Ex-Officio Additional Secretary to the Government of India, purportedly in exercise of power conferred by Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 read with paragraphs 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, by the Central Government.
By virtue of the above Notification, which was impugned to the writ application, import of Peas classified under Exim Code 0713 10 00 (including Yellow peas, Green peas, Dun peas and Kaspa peas) was restricted till September 30, 2018.
It is further submitted by Mr. Basu before us that by virtue of a subsequent Notification No. 37/2015-2020 dated September 28, 2018, the effect of the Notification dated August 30, 2018 was extended till December 31, 2018.
According to Mr. Basu, Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 confers power upon the Central Government to make provisions relating to import and export by order publishing the same in the Official Gazette. According to him, neither the order impugned to the writ application was issued by the Central Government nor the same was published in the Official Gazette. According to him, there was an incidental fact that the agreement had been entered into by the appellant with its counter part in foreign 3 country for import of Yellow peas prior to the issuance of the Notification impugned to this writ application.
Having heard the learned Senior Advocate appearing on behalf of the appellant as also considering the order impugned to this appeal, we find that the learned Single Judge did not adjudicate the aforesaid issues while passing the order impugned to this appeal.
We are of the considered view that a strong prima facie case was made out by the appellant in the writ application with regard to issuance of the Notification in question without any authority of law. That issue was required to be decided by the learned Single Judge.
In view of the above, we think it just and proper to treat the appeal itself as on day's list and to pass an order by quashing and setting aside the order impugned to the appeal relegating the matter back to the learned Single Judge for hearing the writ application afresh in accordance with law expeditiously.
Liberty is granted to the appellant to file supplementary affidavit to the writ application within a week from date for the purpose of bringing the Notification No. 37/2015-2020 dated September 28, 2018 issued by the Director General of Foreign 4 Trade and Ex-officio Additional Secretary to the Government of India, on record.
Till the date of taking up the writ application by the learned Single Judge, the operation/further operation of the above Notification is stayed.
We make it clear that we have not expressed our opinion finally on the merits of the case of the appellant.
The appeal and the application being CAN 8761 of 2018 are disposed of accordingly.
There will be, however, no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Debasish Kar Gupta, C.J.) (Shampa Sarkar, J.)