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9. In rejoinder, the learned advocates for the petitioners submitted that the DGFT is an independent authority appointed under section 6 of the Foreign Trade (Development and Regulation) Act. Sub-section (3) of section 6 clearly stipulates that the DGFT cannot exercise powers under sections 3, 5, 15, 16 and 19 of the Act. Consequently, the power to issue notification under these sections is vested only in the Central Government. It was submitted that when powers under sections 3, 5, 15, 16 and 19 of the Act cannot be delegated to the DGFT, as a necessary corollary it follows that notifications issued in exercise of such powers also cannot be authenticated by the DGFT. It was submitted that authentication of notifications issued in exercise of powers under sections 3, 5, 15, 16 and 19 of the Act by the DGFT would be in violation of the provisions of sub-section (3) of section 6 of the Act. It was submitted that the order dated 24.3.1993 relied upon on behalf of the respondents clearly states that the DGFT is enabled to authenticate Orders/Notifications/Other Instruments in the name of the Central Government under the provisions of the Foreign Trade (Development and Regulation) Act, 1992. Thus, even the authentication powers i.e. to authenticate Orders/Notifications are required to be exercised within the purview of the Act.

9.1 It was contended that the DGFT is a statutory authority appointed under the provisions of the Foreign Trade (Development and Regulation) Act and is not by itself the Central Government and therefore, it is not permissible for him to authenticate orders passed in exercise of powers vested in the Central Government. It was also contended that the Authentication Rules 2002 authorise the DGFT to authenticate Orders/notifications which are administrative in nature. It was contended that the impugned notification directly amends the Exim policy which is not in the nature of an administrative decision, and hence, the DGFT has no power to authenticate the same. In support of such submission, reliance was placed upon the decision of the Supreme Court in the case of Shell Exports (Kandla) v. Union of India, (2016) 12 SCC 641.

9.3 It was, accordingly, urged that the contention that the DGFT has merely authenticated the order does not merit acceptance and that the petitions deserve consideration and interim relief as prayed for deserves to be granted.

10. The Notification No.19/2015-2020 dated 5.8.2017 as well as other notifications have been called in question mainly on the ground that the Director General of Foreign Trade has no authority to exercise powers under section 3 of the Act inasmuch as such power is vested in the Central Government; while sub-section (3) of section 6 of the Act provides that the Central Government may delegate powers exercisable under the Act to the DGFT, sections 3, 5, 15, 16 and 19 have been specifically excluded therefrom, which means that such powers cannot be delegated. In support of such submission, reliance has been placed upon the decision of the Supreme Court in Director General of Foreign Trade v. Kanak Exports (supra) wherein the court has held that for the purpose of carrying out the objectives of the Act which includes implementation of the policy, the Central Government is authorized to appoint DGFT as per section 6 of the Act. The main functions of the DGFT are advising the Central Government and formulation of the policy and he is also responsible for carrying out the said policy. Sub-section (3) of section 6 of the Act provides that the Central Government may delegate its powers exercisable under the Act; however, the powers under sections 3, 5, 15, 16 and 19 are specifically excluded which means that these powers cannot be delegated. Thus, power to announce the policy and to amend the same remains with the Central Government. Likewise, the power of make rules under section 19 which vests with the Central Government cannot be delegated. The court, accordingly, held that the public notice dated 28.1.2004 issued by the DGFT whereby it excluded four items was ultra vires.

12. A perusal of the impugned notification reveals that by virtue of such notification the Central Government, in exercise of powers conferred by section 3 of the Act read with paragraphs 1.02 and 2.01 of the Act as amended from time to time, has amended the import policy of items of Chapter 7 of ITC(HS)2017, Schedule-1 (Import Policy) as provided thereunder. On a plain reading of the notification, it is clear that powers under section 3 of the Act have been exercised by the Central Government, and it is the Central Government which has amended the import policy. At the same time it can also be seen that such amendment bears the signature of the Director General of Foreign Trade, which is the root cause of the dispute raised in these petitions. On behalf of the respondents it has been contended that the import policy has been amended by the Central Government in exercise of powers under section 3 of the Act and that the DGFT has only authenticated the same in accordance with the Authentication Rules. In support of such submission, a notification dated 16th February, 2002 of the Ministry of Home Affairs whereby an order made by the President on 16.01.2002 has been published for general information has been placed on record, whereby in exercise of powers conferred under clause (2) of Article 77 of the Constitution, rules called the Authentication (Orders and other Instruments) Rules, 2002 have been framed. Rule 2 thereof provides that all orders and other instruments made and authenticated in the name of the President shall be authenticated, and specifies the persons who may authenticate the same. Item No.12 therein provides that in case of orders and other instruments relating to the Directorate General of Foreign Trade, by the Director General of Foreign Trade, or the Additional Director General of Foreign Trade, or the Export Commissioner or Joint Director General of Foreign Trade. Thus, the Authentication Rules specifically empower the Director General of Foreign Trade to authenticate instruments relating to the Directorate General of Foreign Trade. A perusal of the impugned notification reveals that the same has been issued by the Government of India, Ministry of Commerce and Industries, Department of Commerce, Directorate General of Foreign Trade. Thus, by the impugned notification the amendment made by the Central Government in the import policy in exercise of powers under section 3 of the Act has been notified which relates to the Directorate General of Foreign Trade, accordingly, the same is authenticated by the Director General of Foreign Trade. Therefore, it is crystal clear that the DGFT has not exercised powers under section 3 of the Act but has merely authenticated an order which relates to the Directorate General of Foreign Trade in accordance with the Authentication Rules. The contention that the impugned notification has been issued by the DGFT in exercise of powers under section 3 of the Act, and is, therefore, ultra vires sub-section (3) of section 6 of the Act, does not merit acceptance.