Page 124 - ELT_1st June 2020_VOL 372_Part 5th

658 EXCISE LAW TIMES [ Vol. 372

union, the provisions of the Act do not contemplate such a situation. Fur-
ther, this court is in complete consonance with the findings of the Learned
Single Judge that the provisions of Sections 15 and 23C do not empower the
States to deal with imported sand. Also, the Judgments of the Division
Bench upholding the validity of Rules 38A and 38C will in no way affect
the contentions of the writ petitioner as held by the Learned Single Judge.
31. A careful consideration of the above judgments would reveal
that when the language used in the statute is clear and unambiguous and
when the object of the enactments are different, there cannot be any refer-
ence or incorporation. In fact, in both the judgments relied upon by the ap-
pellants, the Apex Court has ultimately rejected the contention holding that
when the parent Act was not applicable, reading into the same is not per-
missible. In the case on hand, the Rules 2011 under definition of Minerals in
Rule 2(xiii) specifically excludes “sand”. While so, when there is a specific
exclusion, the definition in other rules cannot be referred or relied upon,
more so, when the Parent Act itself does not deal with imported sand. A
plea was made on behalf of the appellants that Sections 4 and 4(1A) have to
be read disjointly. This Court is not agreeing with the said contention, as
the provisions have to be read harmoniously with the object of the enact-
ment. Section 4 deals with reconnaissance permit, prospecting or mining
operations. Sub-section (1A) was introduced with effect from 18-12-1999.
When a sub-section is introduced under a particular section, it has to be
read in conjunction with the object of the section. Section 4 states that no
operations shall be permitted in any area except under and in accordance
with the terms and conditions of permit or licence or lease granted under
the Act. Therefore, the transportation and storage referred in the Sub-
section (1A) can only apply to the mined or quarried mineral under the re-
connaissance permit or prospecting licence or mining lease. Further, as
rightly held by the Learned Single Judge that Section 15 empowers the State
to make rules for regulating the grant of quarrying lease and Section 23C
deals with measures to prevent illegal mining, transportation and storage of
minerals, it does not deal with import from another country.
32. Insofar as the Kerala and Goa Rules and the Foreign Trade Policy
are concerned, the same are not applicable as the Tamil Nadu Rules do not
contain such specific provisions regarding import from foreign country and
more so in the light of the fact that the Act, itself does not deal with import-
ed minerals from another country. What is not available in the statute, can-
not be created by drawing inference from another statute.
34. There is no quarrel over the ratio laid down in the above judg-
ments. The answer to this contention is found in paragraphs 33 and 38 of
the judgment of the Learned Single Judge, wherein the right of the State to
bring in an enactment under Article 304 has been accepted. We agree with
the said findings. The State is empowered to bring in an enactment subject
to legal scrutiny. The rules framed, as rightly held by the Learned Single
Judge, are in derivation of powers under Sections 15 and 23C and not under
Article 304 of the Constitution of India.”
13. Yet another contention raised by the Learned Additional Advocate
General is that though the Foreign Trade Policy allows import, the petitioner has
to comply with the local laws. She also pointed out that para 9 of the counter af-
fidavit filed by the respondents 3 to 6 also reiterated the same.
“9. It is further submitted that though the import of ilmenite as per
the Foreign Trade Policy regime is free, the Chapter 2 of the Foreign Trade
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