MALIAKKAL INDUSTRIAL ENTERPRISES Vs. UNION OF INDIA

JUDGEMENT

(1.) In all these writ petitions, the same issue arises as to whether by a condition in the import policy of the Government of India, the respondents can insist upon the petitioners in these writ petitions to obtain a registration under the Insecticides Act, 1968, as a condition for obtaining a licence to import of boric acid, if such import is not for the purpose of using the same as an insecticide under the Insecticides Act, 1968, and as to whether such a condition in the import policy is legally sustainable. The facts are in a very narrow compass. Boric acid is a substance, which is used as an insecticide and also for industrial and other purposes. The petitioners use imported boric acid not for use as an insecticide but for other manufacturing purposes. By the export- import policy, as a condition for grant of licence to import boric acid, the petitioners are obliged to obtain a registration for boric acid under the Insecticides Act, 1968, from the authorities under the Insecticides Act, 1968. That condition is prescribed in the export-import policy by the Central Government by virtue of the powers conferred on them under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992. It is pursuant to the said power, that the Central Government has prescribed the condition impugned in these writ petitions for the purpose of issuing import licence to the petitioners for import of boric acid, for implementing which, the circulars impugned in these writ petitions have been issued These different writ petitions relate to periods before and after the amendment of the import policy. But both pre-amendment and post- amendment policies contain the same condition prescribing a registration under the Insecticides Act, 1968, as a condition for applying for licence to import boric acid.

(2.) The contention of the petitioners is that although Section 9 of the Insecticides Act, 1968, prescribes a registration for substances used as insecticide for the purpose of import or manufacture of that insecticide, under Section 38 of the Act, any substance specified in the Schedule to the said Act, if such substance, is intended for the purposes other than as an insecticide is exempted from the provisions of the said Act and therefore when substances included in the Schedule are imported for use otherwise than as an insecticide, registration is not required under Section 9. Boric acid is included in the Schedule of the Insecticides Act, 1968. If the import of boric acid is for a purpose other than as an insecticide, registration of the same under the Insecticides Act, 1968 is not necessary and exempted from. The petitioners submit that, therefore, the Central Government cannot put a condition in the import policy insisting on the petitioners getting a registration under the Act for enabling them to apply for licence to import boric acid. According to them, the export-import policy being a subordinate legislation and the Insecticides Act 1968 being a plenary legislation, the subordinate legislation cannot violate the provisions of the plenary legislation insofar as under the plenary legislation, viz., the Insecticides Act, 1968, when boric acid is used for purposes other than as an insecticide, no registration is necessary or is contemplated The petitioners rely on the decision of the Supreme Court in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and Others, 2006 4 SCC 327, in support of that contention.

(3.) The learned Standing Counsel for the Central Board of Excise and Customs would seek to controvert the contentions of the petitioners with the support of a counter affidavit filed by the respondents. According to the respondents, if at all there is a plenary legislation relevant in this case, that plenary legislation is the Foreign Trade (Development and Regulation) Act, 1992, which authorises the Central Government to lay down import and export policy and going by the various decisions of the Supreme Court on the subject, this Court not being the expert in the field, cannot look into the validity of such condition prescribed in the export-import policy. The learned Standing Counsel relies on the following decisions on the subject: