Page 86 - ELT_3rd_1st May 2020_Vol 372_Part

308 EXCISE LAW TIMES [ Vol. 372

by the Government by certain nominated officials. As per Rule 12 of the order, all
instruments and orders relating to the DGFT shall be signed and authenticated
by the Director General of Foreign Trade or the Additional Director Gen-
eral/Export Commissioner/Joint DGFT. Learned Assistant Solicitor General,
therefore, submits that DGFT did not commit any mistake in authenticating the
impugned G.O. He relies upon a Division Bench judgment of High Court of Gu-
jarath in Civil Application No. 16765 of 2018 [2019 (366) E.L.T. 293 (Guj.), where-
in this rule itself felt for consideration and was accepted by the said High Court.
Apart from that the Learned Assistant Solicitor General relies upon the judgment
of the High Court of Kerala in WA. No. 480 of 2011 [2016 (339) E.L.T. 215 (Ker.)],
wherein a similar issue was considered. Relying on both these decisions, Learned
Assistant Solicitor General argues that the order is issued by the Central Gov-
ernment and that it is validly signed and authenticated by the 3rd respondent.
Lastly, relying upon a single Judges decision from the Calcutta High Court in
WP. No. 26409 of 2013 [2014 (306) E.L.T. 97 (Cal.)], the Learned Counsel argues
that the DGFT is empowered to sign and authenticate such orders.
7. This Court after hearing both the Learned Counsel notices that alt-
hough the arguments were lengthy, the short and simple question involved in
this case is about the interpretation of Sections 3 and 6 of the Act and the authen-
tication. Section 3 of the Act confers the power on the Central Government to
make orders and polices. Section 6 of the Act prohibits the exercise of this power,
particularly under Section 3 of the Act by any other Officer. The powers under
Sections 3, 5, 15, 16 and 19 of the Act, cannot be exercised by anyone else or be
delegated. But if the impugned notifications are seen, they very clearly state as
follows : “the Central Government hereby amends”. Thus, it is clear that it is the
Central Government alone that has amended these rules. Apart from that, the
points raised by the Learned Assistant Solicitor General also deserve considera-
tion. The Central Government has to function through a human agency, who has
to sign and authenticate these orders. The Government, therefore, passed the
orders in the name of President of India called the Authentication of Orders and
Instruments Rules, 2002. As far as the DGFT is concerned, the power has been
given to the Director General of Foreign Trade, the Additional Director General
and others to sign to authenticate all instruments made and executed in the name
of the President of India (Rule 12). The rule about authentication is very clear and
admits of only one interpretation; as above.
8. These rules have also been considered by the Division Bench of the
Gujarat High Court in CA. No. 16765 of 2018 and batch. A similar notification
was also considered by a Division Bench of the Kerala High Court in WA No. 480
of 2011, wherein the Division Bench noticed that the notification was issued on
behalf of the Central Government and is signed by the Director General of For-
eign Trade. Therefore, the Bench held that the notification is valid. Lastly, the
judgment of the Learned Single Judge in WP No. 26409 of 2013 is also in the
opinion of this Court; appropriate. In that case also, notifications were issued.
After considering the issue about the Allocation of Business Rules, the Learned
Single Judge came to the conclusion that the signature on the notification by the
DGFT is a valid signature. In that case, Learned Single Judge agreed that under
the Allocation of Business Rules, the source of power of the DGFT to sign the
notification could be traced.
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