Page 85 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] SHIRDI SAI PULSES v. UNION OF INDIA 307

ported under free category i.e. there were no restrictions on the import of this
material. Petitioner entered into various contracts with foreign suppliers and was
importing the pulses. Apart from the Customs formality, Learned Counsel for
the petitioner submits that they have had no other statutory obligation to fulfil.
Suddenly, on 5-8-2017 orders were issued modifying the Exim code by which
pigeon peas were moved from free category to restricted category. Similarly, var-
ious other modification orders were also issued by virtue of which, the pulses of
all varieties which were till then freely imported have now been ‘restricted’. The
petitioner is questioning these notifications on the ground that (a) the respondent
No. 1 alone can make the changes and that neither respondent No. 2 nor re-
spondent No. 3 are entitled to make the changes; (b) as per the provisions of the
Foreign Trade (Development and Regulation) Act, 1992 (for short ‘the Act’), it is
only the Central Government under Section 3 of the Act that is empowered to
pass orders and not respondent Nos. 2 and 3. Learned Counsel draws the atten-
tion of this Court to Section 5 of the Act, which gives the power to the Central
Government to formulate and announce foreign trade policy. Relying on Section
6 of the said Act, the Learned Counsel submits that the Director General of For-
eign Trade (DGFT), who is shown as respondent Nos. 2 and 3 in the writ peti-
tions is only appointed to carry out the policy. Learned Counsel relies upon Sec-
tion 6(3) of the Act, which is as follows :
“6(3) The Central Government may, by Order published in the Offi-
cial Gazette, direct that any power exercisable by it under this Act (other
than the powers under sections 3, 5, 15, 16 and 19) may also be exercised, in
such cases and subject to such conditions, by the Director General or such
other officer subordinate to the Director General, as may be specified in the
order.”
(Emphasis supplied)
5. Therefore, Learned Counsel argues that the power under Section 3 of
the Act, cannot be exercised by the petitioners. This is the sum and substance of
his challenge. He relies upon the judgment reported in Gulf Goans Hotels Co. Ltd.
v. Union of India [(2014) 10 SCC 673] and State of Uttaranchal v. Sunil Kumar Vaish
[(2011) 8 SCC 670]. Relying on these two judgments, Learned Counsel argues
that the impugned notification is not validly issued and that only the Central
Government can issue the same. It is also his contention that Executive and State
actions have to be taken in the name of the President or Governor as the case
may be and that any other decision cannot be said to be an “order” that is issued
by the Government of India. Consequently, he argues that the notification should
be set aside as it is not properly authenticated.
6. In reply to this, Learned Assistant Solicitor General draws the atten-
tion of this Court to the impugned notifications and argues that these orders are
issued by the Central Government only. He points out that the
DGFT/respondent No. 2 merely authenticated or signed the same. The notifica-
tions as per the Assistant Solicitor General squarely refer to the order being
passed by the Central Government itself. In addition, Learned Assistant Solicitor
General refers to the notification dated 18-2-2002 issued by the Government of
India, Ministry of Home Affairs notifying the Authentication (Orders and other
Instruments) Rules, 2002. Learned Assistant Solicitor General points out that the-
se rules have been formulated to permit the authentication of the orders issued
EXCISE LAW TIMES  1st May 2020  85