Page 118 - ELT_15th June 2020_VOL 372_Part 6th

796 EXCISE LAW TIMES [ Vol. 372

COTP Labelling Rules, 2008 and COTP Labelling Amendment Rules, 2014. The
Petitioner further submitted that duty free shops operated by Respondent No. 2
procure tobacco products both from domestic and international suppliers and
the same are sold at arrival and departure terminals of the Airport. The grievance
of the Petitioner is that the said tobacco products are being permitted to be sold
without insisting upon the compliance under the COTPA, COTP Labelling Rules,
2014 and COTP Labelling Amendment Rules, 2014. It is also case of the Petitioner
that actions of the Respondents are in violation of Article 21 of the Constitution
of India as such actions directly enure for the benefit of an industry which has
been found to manufacture products directly and substantially prejudicing the
right to life of the entire citizenry, both present and future. Relying upon Article
47 of the Constitution of India, the Petitioner contends that it is obligatory for the
State to take steps including prohibition, to curb use of intoxicants in order to
improve health. The Petitioner emphasizes that as a matter of fact safeguarding
the public health has been defined as a primary duty of the State. To substantiate
his contention, the Learned Counsel for the Petitioner relied upon the decision of
Madhya Pradesh High Court in Vasu Clothing Private Limited v. Union of India
[Judgment dated 17-12-2018 in Writ Petition No. 17999 of 2018 = 2019 (22)
G.S.T.L. 163 (M.P.)]. The Petitioner submitted that decision of this Court in A-1
Cuisines Pvt. Limited v. Union of India [Judgment dated 28th November 2018 in
Writ Petition (Nagpur Bench) No. 8034 of 2018 = 2019 (22) G.S.T.L. 326 (Bom.)
and decision of the Apex Court in M/s. Ashoka Hotel (Indian Tourism Development
Corporation Limited) v. Assistant Commissioner of Commercial Taxes [(2012) 3 SCC
204 = 2012 (276) E.L.T. 433 (S.C.)] are per incuriam and erroneous for not consider-
ing the territorial extent of India as per the Constitution of India. The Petitioner
alleged that Section 1(2) of COTPA is ambiguous. He submitted that sales by du-
ty free shops, whether at arrival or departure terminals, are erroneously con-
strued as “exports”, thereby erroneously extending the benefit of impugned Sec-
tion 32 of the COTPA.
4. Mr. Nankani, the Learned Senior Counsel for Respondent No. 2 op-
posed the petition by filing reply. He heavily relied upon the decision of the
Apex Court in Ashoka (supra) and decision of this Court in A-1 Cuisines (supra)
and submitted that it is settled position of law that duty free shops at interna-
tional airports are considered as situated outside India for being beyond Cus-
toms frontiers of India. Mr. Nankani contended that the issue raised in the PIL is
covered by the decision of the Apex Court. He lastly submitted that the petition
is devoid of substance and deserves to be dismissed.
5. The goods sold or supplied from duty free shops at international air-
ports are export undertaken by the duty free shop operators. The word “export”
under the COTPA is identical to the definition of word “export” under the Cus-
toms Act, 1962 and the IGST Act, 2017, which read thus :
COTPA :-
Section 2(d) - “export” with its grammatical variations and cognate
expressions, means taking out of India to a place outside India”
Customs Act, 1962 :-
Section 2(18) - “export” with its grammatical variations and cognate
expressions, means taking out of India to a place outside India.
IGST Act, 2017 :-
Section 2(5) - “export of goods” with its grammatical variations and
EXCISE LAW TIMES  15th June 2020  118