MALIAKKAL INDUSTRIAL ENTERPRISES Vs. UNION OF INDIA
LAWS(KER)-2017-2-138
HIGH COURT OF KERALA
Decided on February 28,2017

MALIAKKAL INDUSTRIAL ENTERPRISES Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

P.R.RAMACHANDRA MENON,J. - (1.) These review petitions have been filed by the same petitioner, who was the first respondent in the Writ Appeals. The nature of challenge and the relief sought for appears to be substantially similar and hence they are dealt with together. R.P. No. 1002 of 2014 is taken as the lead case and the pleadings and proceedings are referred to, as given in the said case, except where it is separately dealt with reference to the context.
(2.) The petitioner, a proprietorship firm, engaged in the business of trading in industrial chemicals, particularly, dealing with 'Boric acid' and 'Borax', was stated as aggrieved of the Circular bearing No. 61 of 2004, dated 28-10-2004 issued by the Central Board of Excise and Customs, to the effect that importers who import Boric acid for 'insecticidal use' would have to get themselves registered under the Insecticides Act, 1968 as a precondition for import of the insecticides concerned. It was also mentioned in the Circular that in the case of imports by Traders (like petitioner), they had also to get themselves registered under the Insecticides Act as the 'end-use' of the chemical imported was not capable of being determined at the time of import. Later, another Circular bearing No. 37 of 2005, dated 6-9-2005 was issued, whereby it was made clear that even the import of Boric acid for non-insecticidal use could be allowed, only on the basis of an import permit issued by the Central Insecticide Board and Registration Committee under the Ministry of Agriculture, on the basis of the recommendation of the Nodal Administrative Ministry. The Central Government thereafter amended Schedule-I (Imports) imposing a condition, in exercise of the powers under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with paragraph 2.1 of the Foreign Trade Policy 2004-09, holding that imports of Boric acid for insecticidal purpose will be subject to import permit issued by the Central Insecticide Board and Registration Committee under the Ministry of Agriculture.
(3.) The Circulars and the Notifications issued by the Central Government, to the extent they were detrimental to the rights and interests of the petitioner, were sought to be challenged by filing writ petitions, mainly contending that the provisions of the Insecticides Act were not applicable to the petitioner, by virtue of the specific exemption under Section 38 of the Insecticides Act. This was to the effect that, although Boric acid was an insecticide, the provisions of the Act will not apply to Boric acid imported for 'non-insecticidal' purpose. Apart from placing reliance on Section 38 of the Act, a plea of discrimination was also raised, which was mainly of two fold. Firstly, that there was an instance of discrimination in relation to other toxic chemical substances, which were having greater toxicity than Boric acid and still standing outside the purview of the Act/Circulars/Notifications, whereas 'Boric acid', according to the petitioner was not even a toxic chemical, as it was largely used in the manufacture of 'eye-drops'. Second instance of discrimination was with reference to the position enjoyed by the 'Local manufacturers' (very few in number) who were not having any registration under the Act and still were manufacturing and selling the product without any restriction.;


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