Indian Kanoon - Search engine for Indian Law

(Order of the Court was made by R. MAHADEVAN, J.) The petitioner is an importer importing timbers from various foreign countries. They are regularly importing timbers from Cameroon and Columbia and sell them locally. While so, it has placed an order for import of timber from Columbia and the said consignment has been covered by Invoice No. FA-34 dated 18.06.2019 under Bill of Lading No.BGA0250829 dated 20.06.2019. As per Clause 9 of the Plant Quarantine (Regulation of Import into India) Order, 2003, if any timber, wood or bamboo is imported into India, the same has to be https://www.mhc.tn.gov.in/judis  W.P.Nos.18342 and 18346 of 2023 fumigated with Methyl Bromide. The said Methyl Bromide is an ozone depleting substance and is banned in many countries including Columbia from where the petitioner imports timber. As the condition of fumigating the timbers is not possible in many countries, the second respondent herein has issued Office Memorandums dated 30.03.2017, 28.06.2017, 29.12.2017, 26.06.2018 and 27.12.2018 in exercise of powers provided under Clause 14(2) of Chapter VI of the Plant Quarantine Order, 2003, imposing a penal fee calculated at the rate of four times of the normal rates prescribed, for relaxing the off-shore fumigation. Subsequently, the second respondent herein has issued the Office Memorandum dated 01.07.2019 wherein they have changed the words “penal fee” into “inspection fee” and continue to charge the same penal charge at the rate of four times of actual inspection fee. The petitioner has challenged the Office Memorandum dated 01.07.2019 before the writ Court in W.P.No.22976 of 2019 and thereafter cleared the subject consignment covered under Bill of Lading No.BGA 0250829 dated 20.06.2019 on payment of 50% of the inspection fee payable under Clause 14(2) of the Plant Quarantine Order, 2003 and on execution of a personal bond for the remaining 50% as per the interim order of this Court dated 07.08.2019. The petitioner has cleared the consignment on 16.08.2019 vide Bill of Entry No.4360666 dated 05.08.2019. However, by order dated 16.08.2022, the main writ petition was dismissed https://www.mhc.tn.gov.in/judis  W.P.Nos.18342 and 18346 of 2023 with liberty to the petitioner to challenge the Plant Quarantine (Regulation of Import into India) Order, 2003.

3.The learned counsel for the petitioner submits that as per Clause 14(2) of the Plant Quarantine Order, in the event of granting relaxation by the competent authority, the consignment will be released on payment of plant quarantine inspection fee calculated at the rate of five times the normal rates, but as per Clause 9(1)(ii) of the Plant Quarantine Order, 2003, the fumigation treatment which is equivalent to the fumigation treatment with Methyl Bromide is permissible. Therefore, Clause 14(2) of the Plant Quarantine Order, 2003 is https://www.mhc.tn.gov.in/judis  W.P.Nos.18342 and 18346 of 2023 in contradistinction with Clause 9(1)(ii) of the Plant Quarantine Order, 2003 and the same has to be struck down. It is further submitted that Condition No.(iii) of the impugned office memorandum is arbitrary since the respondents are well aware about the impossible condition imposed under the Plant Quarantine Order. It has been specifically pointed out by the learned counsel that the consignments were subjected to off-shore aluminium phosphide fumigation, which is equivalent to Methyl Bromide for which the petitioner has been issued with Phytosanitary Certificate by the exporting country which undertakes fumigation by any other equivalent agent to Methyl Bromide and therefore, the petitioner cannot be faulted with for importing the timber fumigated with other chemicals. Finally, it has been submitted that the High Court of Gujarat, in its decision in W.P.Nos.16280 of 2021 etc. batch, set aside Clause 14(2) of the Plant Quarantine Order (Regulation of import into India), 2003 and the Office Memorandum impugned therein, as arbitrary, unreasonable and in violation of the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India, to the extent that it stipulates charging of fees of five times of normal rate. With these submissions, the learned counsel prayed to allow these writ petitions by setting aside the proceedings impugned in these writ petitions.

4.On the other hand, the learned Central Government Panel Counsel for https://www.mhc.tn.gov.in/judis  W.P.Nos.18342 and 18346 of 2023 the respondents submitted that there is a strong possibility that the imported timber may carry certain harmful pests which may cause a serious threat to the bio-security of India and therefore, it is mandatorily required to be regulated as per Plant Quarantine Order, 2003. It is further submitted that relaxation fee at five times the normal fee is collected as penalty to discourage the violation of the conditions stipulated in the Plant Quarantine Order and hence, the Office Memorandum impugned herein has been passed in order to create a deterrent by enhancing the penalties in import of the commodities in violation of the Plant Quarantine Order. However, the learned Additional Solicitor General of India has produced a copy of the Notification dated 13.10.2022 making an amendment to the Plant Quarantine (Regulation of Import into India) Order, 2003, by adding the entries after the existing entries relating to Clause 5, in compliance with the decision of the Gujarat High Court.

5.Heard the learned counsel on either side and perused the records carefully and meticulously.

6.The petitioners have come up with these writ petitions challenging Clause 14(2) of Chapter VI of the Plant Quarantine (Regulation of Import into India) Order, 2003 issued by the first respondent, imposing a penal fee https://www.mhc.tn.gov.in/judis  W.P.Nos.18342 and 18346 of 2023 calculated at the rate of four times of the normal rates prescribed and also Condition (iii) of the Office Memorandum in O.M.No.8-131/2016-PP.II dated 01.07.2019 issued by the second respondent, stating that Inspection Fee in respect of those consignments will be charged as prescribed in the Plant Quarantine Order, 2003 Chapter VI Para 14(2).