Calcutta High Court (Appellete Side)
Asian Tea & Exports Limited & Anr vs Union Of India & Ors on 7 March, 2019
1
IN THE HIGH COURT AT CALCUTTA
07-03-2019 Constitutional Writ Jurisdiction
Appellate Side
Subrata
CAN No.1804 of 2019
in
W.P.No.21382(W) of 2018
Asian Tea & Exports Limited & Anr.
-vs-
Union of India & Ors.
Mr. Partha Sarathi Sengupta
Mr. Sandip Agarwal
Mr. Arindam Banerjee
Ms. Sreetama Roy
Mr. Indranil Banerjee
Mr. Tanay Agarwal ...for the petitioners
Mr. Subhankar Chakraborty
Mr. Saptarshi Bhattacharjee ...for Union of India
Mr. Uday Sankar Bhattacharya
Mr. Bhaskar Prasad Banerjee ...for the Customs
CAN No.1804 of 2019 is an interlocutory
application which has been filed by the writ petitioners
for enforcement of an interim order which was passed in
the writ petition on November 5, 2018 as corrected on
November 13, 2018 and has been extended on December
5, 2018.
It is the case of the writ petitioners that while the
interim order was in force they had caused to be
imported certain products which had till December 31,
2018 been the subject matter of a restriction engrafted
by notifications dated August 30, 2018 and September
28, 2018 issued by the second respondent - the Director
General of Foreign Trade (the second opposite party).
2It is an admitted position that the notifications challenged in the writ petition have expired after December 31, 2018. The said notifications were challenged in the writ petition on the grounds of being ultra vires the power of delegation by the Central Government.
The respondents through Mr. Chakrabarty, learned Senior Government Advocate, allege that a similar challenge was made before the Hon'ble High Court of Gujarat at Ahmedabad being Premium Pulses Products--v--Union of India (Special Civil Application No.16765 of 2018 and connected cases) which was decided on December 19, 2018 negating a similar contention, that such a notification, which was a delegation by the Central Government, to the Director General of Foreign Trade, was without jurisdiction. I am told that the challenge by the petitioners in that other case, to the decision of the Hon'ble High Court at Gujarat was repelled by the Hon'ble Supreme Court on January 28, 2019 by a dismissal of the special leave petition. Since it was a dismissal of the special leave petition without any reason being assigned, there would, of course, be no question of merger.
On the contrary, Mr. Lahiri on behalf of the writ petitioners has relied upon a judgment of a coordinate bench, being Sanmarg Private Limited--v--Union of India and Others reported in (2019) 365 ELT 273 equivalent to 2018 SCC Online Cal 7332. In this 3 judgment a coordinate Bench has clearly held as follows:-
"The Director General of Foreign Trade can be empowered by the Central Government to exercise powers under the Act of 1992 except the powers under Sections 3, 5, 15, 16 and 19".
The said decision, like the present case, was rendered in the back drop of Section 6 of the Act of 1992, and relates also to the power under Section 3 of the Act of 1992.
While it is trite that the final decision on a Constitutional question taken by any High Court deserves great respect from any other High Court, nonetheless where there is the decision on the point by this High Court rendered by a co-ordinate Bench, I am bound to follow it unless there is a contrary decision of the Hon'ble Supreme Court or our Hon'ble Division Bench.
Therefore, at the interim stage all that is required to be considered is whether an import commenced by a bill of lading which is within the period of stay passed by this court shall be held to be suffering under the restriction which has ceased to be under the original notifications impugned by the writ petitioners and renewed by a fresh notification not challenged by the writ petitioners and which has not been issued by the second respondent and is therefore free from the vice of impermissible delegation.
The writ petitioners contend that the question of 4 challenging a fresh notification of December 28, 2018 would only arise if an import was to be commenced after January 1, 2019 when the fresh notification came into force and that the writ petitioners are not disputing their liability to make payment of the import duty and therefore the only question is whether pending decision of the writ petition a restriction can be imposed on the writ petitioners to bring the goods in Kolkata for onward utilization.
The petitioners have satisfied me that till February 5, 2019 the Customs authorities were permitting them to bring the goods and utilized them on the basis of an undertaking letter whose copy has been taken on record today.
Qualitatively there is no distinction between the products concerned which were thus allowed to be brought by the petitioners by the respondent-authorities prior to February 5, 2019 and subsequent to February 5, 2019. The goods being perishable cannot continue to remain without being released by the Customs authorities in favour of the petitioners, unless some arrangement is made to compensate the petitioners for the injury that they would suffer on the deterioration of the said perishable goods.
The respondents have also sought and obtained on March 6, 2019 an opportunity of filing affidavit-in- opposition and to contest the writ petition on merits for which time has already been granted to them. Once such 5 time is granted, it is only equitable that the writ petitioners are not made to suffer; and therefore they are permitted to have the goods released in their favour and the respondent-authorities are directed to allow them to do so without making any payment of anything, except the import duty and on the basis of such undertaking as the letter whose copy has been placed on record.
The question whether in the absence of a challenge to the notification of December 20, 2012 the writ petition continues to be maintainable and whether the respondents have accepted the allegation of lack of jurisdiction by not renewing the notification of August 30, 2018 and September 28, 2018 by their issuance through the second respondent are left open for decision at the final hearing.
The application (CAN No.1804 of 2019) is accordingly allowed on the above terms. The fourth respondent - the Commissioner of Customs and Port - shall act on the basis of the server copy of this order.
Certified website copy of this order, if applied for, shall be given to the parties.
[Protik Prakash Banerjee, J] 6