UNION OF INDIA Vs. MALIAKKAL INDUSTRIAL ENTERPRISES

JUDGEMENT

(1.) As the appeals raise common questions, we are disposing of the same by a common judgment. The questions, which arise for our consideration, essentially would appear to us as follows:

(2.) These questions appear to arise in the following factual matrix. Boric acid is an insecticide which is included in the schedule to the Act. The writ petitioner in W.P.(C) Nos.11388/2005, 1577/2006 and 4168/2007 is a trader who imports boric acid as part of its trade, whereas the other writ petitioner (in W.P.(C) No.28432/2006 and W.P. (C)10934/07) is a manufacturer who uses boric acid as raw material. The writ petitioners originally approached this court by filing W.P.(C) Nos. 11388/2005 and 1577/2006 and 26432/06. In the writ petitions the writ petitioners sought to challenge administrative instructions. By Ext.P1 they were asked to get themselves registered under the Act (Ext.P1 circular). Subsequently, the Central Board of Excise and Customs modified the terms of Ext.P1 Circular clarifying that import of boric acid for non-insecticidal use could be allowed only on the basis of an import permit issued by the Board and Registration Committee (Ext.P4 in W.P.26432/06). We will deal with the circulars in greater detail as we progress further in the judgment. The last of the two writ petitions were filed by the very same 31-40parties who have filed the earlier writ petitions. The said writ petitions were apparently instituted when there was further development in the form of amendment to the notification issued under Section 5 of the Foreign Trade Act, by which while import of boric acid is free, in respect of non-insecticidal use, import permit is to be obtained from the Board and Registration Committee in the Ministry of Agriculture.

(3.) A learned Single Judge allowed the writ petitions (four in number). The writ petitions have been allowed on two grounds. It was firstly found that subordinate legislation should not only be in conformity with the Constitution and parent legislation, but it also must conform to any other law made by the legislature. It was accordingly found that imposition of condition of registration under the Act, in respect of insecticides which were imported for non insecticide purposes, was contrary to the Act in view of Section 38 of the Act, which exempted insecticides which were imported meant to be used for non insecticidal purposes. The next ground on which the writ petitions were allowed was that requiring the importers to get themselves registered under the Act was arbitrary and it was unworkable since the Act did not apply to insecticides imported for non insecticidal purposes. Registration was not contemplated in respect of such insecticides and it could also be refused by the authorities. Another learned Single Judge allowed one of the writ petitions (W.P.(C) No.11388/2005) following the judgment of the learned Single Judge in the batch of writ petitions.