BIMAL KUMAR MODI Vs. UNION OF INDIA

JUDGEMENT

(1.) The above writ petitions assumed importance for the challenges made to the notification dated 13th May, 2013 issued by the Director General of Foreign Trade fixing Cost Insurance & Freight (CIF) Value at Rs. 110/- per kg and above as condition for policy to import the areca nut commonly known as betel nut. Correspondingly the Director to Government of India, Ministry of Finance (Central Board of Excise and Customs) issued notification dated June 25, 2013 fixing the Tariff Value of the areca nuts at US $ 1613 per metric ton which is also a subject matter of challenge in the aforesaid writ petitions. In some of the writ petitions, a show cause notice issued by the Commissioner of Customs (Preventive), West Bengal, Kolkata contemplating to confiscate the aforesaid goods under Section 111(d) of the Customs Act, 1962 for violation of the non-fulfillment of the policy condition enshrined under the said notification dated 13th May, 2013 and imposition of penalty under Section 112 of the said Act is also assailed before this Court. Admittedly the Foreign Trade Policy does not prohibit the importation of the areca nuts/betel nuts absolutely, which can be deciphered from the impugned notification dated 13th May, 2013 that it is freely importable. However, conditions have been imposed wherein the import is permissible provided the CIF Value is Rs. 110/- per kg and above. The entire thrust of the argument is founded on the legality of the said notification issued by the Director General of Foreign Trade (DGFT), though it reflects that the Central Government have imposed such conditions by amending the Foreign Trade Policy, 2009-2014. It would be relevant to record that the impugned notification dated 13th May, 2013 is issued in exercise of the powers conferred under Section 5 of the Foreign Trade (Development & Regulation) Act, 1992 read with Paragraph 2.1 of the Foreign Trade Policy, 2009-2014.

(2.) The petitioners have imported the areca nuts/betel nuts from Bangladesh at much lesser price, to what is indicated in the policy conditions i.e. Rs. 110/- per kg and above and have been detained at the entry point. According to the authorities, the bill of entry submitted by the respective importers do not reflect that the conditions imposed in the impugned notification dated 13th May, 2013 is fulfilled and, therefore, liable to be confiscated treating the same to be a prohibited goods. For better understanding and clear exposition, the argument advanced by the respective Counsels are compartmentalized in three broad heads viz; notification dated 13th May, 2013 issued by the DGFT, notification dated 25th June, 2013 issued by the Director to the Government of India, Ministry of Finance (Central Board of Excise and Customs) and show cause notice. Notification dated 13th May, 2013

(3.) As indicated above, the impugned notification is issued in exercise of the powers conferred under Section 5 of the FTDR Act read with Paragraph 2.1 of the Foreign Trade Policy, 2009-2014 in the form of an amendment made by the Central Government imposing the policy conditions which is issued by the DGFT. The impugned notification clearly indicates that the areca nuts/betel nuts is freely importable under the Foreign Trade Policy, 2009-2014 subject to the conditions that the CIF Value is Rs. 110/- and above per kg. Prior to the impugned notification, the CIF Value was fixed at Rs. 75/- and even prior thereto, it was Rs. 35/- and above per kg.