Karnataka High Court
M/S Mukka Sea Food Industries Pvt Ltd vs Director General Of Foreign Trade on 25 July, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.33805/2016 (GM-RES)
BETWEEN:
1. M/S. MUKKA SEA FOOD INDUSTRIES PVT. LTD.,
TRINITY COMMERCIAL COMPLEX,
1ST FLOOR, N.G. ROAD, ATTAVAR,
MANGALORE - 575 001.
REPRESENTED BY ITS DIRECTOR
MR. MOHAMMED HARIS
AGED ABOUT 40 YEARS.
2. M/S. RAJ FISHMEAL & OIL CO.,
3RD CROSS, MALPE-MADHWARAJ ROAD,
MALPE - 576 108,
UDUPI DISTRICT,
REPRESENTED BY ITS PROPRIETOR
SHRI PRAMOD MADHWARAJ
AGED ABOUT 51 YEARS.
3. M/S. JANATHA FISH MEAL & OIL PRODUCTS
MANOOR FISHERIES ROAD,
KOTA - 576 221
UDUPI DISTRICT
REPRESENTED BY ITS MANAGING PARTNER
SHRI ANAND C. KUNDER
AGED ABOUT 65 YEARS.
4. M/S. BAWA INTERNATIONAL
P.B. NO.235, TATA COFFEE BUILDING,
SOUTH WHARF STREET,
MANGALORE - 570 001.
INDIA.
REPRESENTED BY ITS PARTNER,
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MR. RIAZ BAWA,
AGED ABOUT 52 YEARS. ... PETITIONERS
(BY SRI SHAHBAAZ HUSSAIN, ADVOCATE)
AND:
1. DIRECTOR GENERAL OF FOREIGN TRADE,
UDYOG BHAWAN,
SANSAD MARG,
NEW DELHI - 110 003.
2. DEPUTY DIRECTOR GENERAL OF FOREIGN TRADE,
6TH FLOOR, C & E WING,
KENDRIYA SADAN, KORAMANGALA,
BANGALORE - 560 095.
3. CHAIRMAN
THE DIRECTOR GENERAL OF FOREIGN TRADE,
POLICY INTERPRETATION COMMITTEE
UDYOG BHAWAN, SANSAD MARG,
NEW DELHI - 110 003.
(R-3 IS IMPLEADED V.C.O.
DATED 29/07/2021) ... RESPONDENTS
(BY SRI M. UNNIKRISHNAN, ADVOCATE FOR R-1 AND R-2;
SRI H. SHANTHIBHUSHAN, DSG FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE PIC
DECISION ARRIVED AT IN THE MEETING DATED 24.03.2009
HELD BEFORE R-1 DGFT AT ANNEXURE-A; DIRECT RESPONDENT
TO ALLOW THE RETROSPECTIVELY DEPB SCRIPTS TO THE
PETITIONER ON EXPORT OF FISH MEAL AND FISH OIL FROM
NOVEMBER 2009 TILL THE DATE DEPB SCHEME WAS ABOLISHED.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 16/06/2023 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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ORDER
The petitioners have called in question the decision by the Policy Interpretation Committee ("the PIC" for short) at a meeting dated 24.03.2009 before respondent No.1 - Director General of Foreign Trade ("DGFT") pertaining to one M/s.Sai Annapurana Bio- Proteins Pvt. Ltd., Vijayawada through the Commissioner of Customs (Sea-Exports Chennai), whereby, respondent No.1 in the minutes of PIC clarified to the firm and the Regional Authority concerned that the products "fish oil" and "fish meal", which are value added products are not covered under the existing Duty Exemption Pass Book ("DEPB" for short) entries of the "fish and fish products" and further a writ of mandamus is sought directing the respondents to allow retrospectively DEPB scripts to the petitioners on export of fish meal and fish oil from November 2009 till date, the DEPB Scheme was abolished. -4-
2. The petitioner would contend that DEPB Scheme notified under the Foreign Trade Policy of 1997 ("the FTP" for short) to 2002 to give credit to the export on their freight Board Value, enabling them to negate the customs duty on import of raw materials required for manufacture of products to be exported and the petitioner was able to compete with the global manufacturers of 'fish oil' and 'fish meal' due to the incentives being provided under the Scheme. According to the petitioner, the terminology "fish and fish products" made it clear that "fish oil" and "fish meal" naturally gets classified under the notion of "fish products" and "any acquatic animal product of marine or fresh water in live or chilled or dried form" on the basis of the DEPB scripts upto March 2009 and that in view of the application filed by one M/s.Sai Annapurana Bio-Proteins Pvt. Ltd., before respondent No.1 seeking benefit of the DEPB Scheme for "fish oil" and "fish -5- meal" as the exporters of "fish oil" and the "fish meal"
from Tamil Nadu were being denied DEPB scripts, matter was referred to respondent No.1 who constituted Policy Interpretation Committee and by the impugned order/decision dated 24.03.2009, PIC decided that the "fish oil" and "fish meal" fall outside the scope of Code No.66 of DEPB schedule, which reads fish and fishery products (Annexure-A).
3. It is further contended that the petitioners have given several representations by the Trade Body to Minister of Commerce and Industries to Chairman, Marine Products Export Development Authority (MPEADA), representation through Ministry of Fisheries Government of Karnataka to Central Government, to restore the DEPB benefit to petitioners' export products and the said representations, according to the petitioners, have not yet been considered by the Government.
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4. This Court has heard Sri Shahbaaz Hussain, learned counsel for the petitioners; Sri M.Unnikrishnan, learned counsel for respondent Nos.1 and 2 and Sri H. Shanthibhushan, Deputy Solicitor General for respondent No.3.
5. The petitioners have called in question the clarification, which does not amount to any new policy direction, moreover, PIC clarification was issued on receipt of a reference from the Customs Sea Port, Chennai, wherein, they had stated that their department is of the opinion that the export of "fish oil"
and "fish meal" are not eligible for benefit under Sl.No.1 of the product code 66 for 4% DEPB credit benefit under DEPB Scheme, as they are neither live/chilled or dry product, however, as the question or doubt has arisen in respect of the interpretation of the schedule DEPB rates the Regional Authority has -7- referred the matter to the Director General of Foreign Trade.
6. Material on record would depict that the Policy Interpretation Committee (PIC) has issued a clarification on receipt of a reference through Customs Sea Port, Chennai in respect of one M/s. Sai Annapurna Bio-Proteins Pvt. Ltd. and not to the petitioners herein. The petitioners contend that the grant of DEPB benefit was stopped as per the clarification issued vide PIC meeting No.11/AN 07 held on 24.03.2009 to M/s. Sai Annapurana Bio-Proteins Pvt. Ltd., and it was clarified to the firm and the regional authority concerned that the products "fish oil" and "fish meal", which are value added products are not covered under the existing DEPB entries of the fish and fish products and the exporters were never eligible for benefit under Sl.No.1 of the Product Code 6 of 4% DEPB credit benefit. However, learned counsel for respondent No.1 brought -8- to the notice of this Court that in each case, where DEPB benefit has been granted erroneously whether before or after the date of issuance of clarification, show cause notices have been issued to the respective parties. It is also brought to the notice of this Court by learned counsel for respondents that petitioners on receiving the show-cause notice, have neither participated in the adjudication proceedings nor filed an appeal before the Additional Director General of Foreign Trade, New Delhi as mandated under the provisions of Foreign Trade (Development and Regulation) Act, 1992 nor the petitioners have not availed the opportunity to be heard before the appellate authority.
7. The scope of judicial review of Government policy is well defined. The Court cannot act as an appellate authority to examine the correctness, suitability and appropriateness of a policy. The scope of judicial review when examining a policy of a -9- Government is to check whether it violates the fundamental rights of the citizens or is oppose to the provision of the Constitution or oppose to any statutory provision are manifestly arbitrary. Courts cannot interfere with the policy either on the ground that it is erroneous or on the ground that it is better, fairer or wiser alternative is available as held by the Apex Court in the case of Directorate of Film Festivals and others vs. Gaurav Ashwin Jain & Ors [(2007)4 SCC 737] [Gaurav Ashwin Jain].
8. It is also relevant to state here that the contention of the petitioners that several representations have been accorded to the Trade Association, Minister of Commerce and Industries, State Ministers and Members of Parliament, but no action has been taken on the representations. It is brought to the notice of this Court by the learned counsel for the respondents that the representations of the petitioners
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are replied as per the table below and the same have been considered in seriatim:
Sl. Representation received from Replied on No.
1. The Marine Products Exports 27th May 2011 Development Authority, Kochi dated 13th May 2011
2. Shri. Jai Krishna Palemar, the then 16th May 2011 Minister for Ecology, Environment, Ports, Fisheries, Inland Water Transport Science and Technology, Government of Karnataka forwarded representation of India Fish Meal and Fish Oil Exporters Association
3. Dr. M. Veerappa Moily, the then 25th January Minister of Law and Justice 2010 forwarded representation of India Fish Meal and Fish Oil Exporters Association
4. The Secretary Indian Fish Meal and 19th December Fish Oil Exporters Association 2011
5. Smt. Hema Malini, AP forwarding 24th December therewith representation of Indian 2014 Fish Meal and Fish Oil Exporters Association
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9. Thus, the contention of the petitioners that the representations are not considered also does not hold water. The petitioners in the guise of challenging the clarification issued to a third party has approached this Court, on this sole ground itself, the petition needs to be dismissed, accordingly, this Court is of the considered view that the petition lacks merit and this Court pass the following:
ORDER
(i) Writ petition is dismissed.
(ii) It is needless to observe that the petitioners are at liberty to avail alternative statutory appeal as available under Section 15 of the Foreign Trade (Development and Regulation) Act, 1992, if so advised, in accordance with law.
SD/-
JUDGE S*