Judgment : Petitioner, a propriety concern, is engaged in the activity of trade in agricultural products, particularly, buying and selling Popcorn - Maize. The proprietor also claims that he is an agriculturist engaged in cultivation of popcorn. 2. It is stated that petitioner enters into contracts with farmers, who are engaged to grow popcorn-maize and in turn petitioner provides support price to the farmers. Popcorn is said to be widely grown in Karnataka and parts of Andhra Pradesh and the cultivation is spread on an extent of 1,000 acres per season. Though Maize, as an agricultural produce, is widely grown in India, one of its varieties i.e. popcorn is generally imported from United States of America and Argentina under the Customs Act, 1962and Foreign Trade Policy under the Foreign Trade (Development and Regulation) Act, 1992. Petitioner states that popcorn, which is imported, as above, is of better quality and cheaper in value than the one domestically grown and in order to ensure that domestic production and market is not harmed, the Government of Indian under the Foreign Trade Policy has always permitted the import of popcorn for ‘actual users’ and not for ‘trading’. It is not in dispute that as per the commitment of the Government of India, under the World Trade Organization obligations, four agricultural products were negotiated and India is committed to allow the Tariff Rate Quota (TRQ) for four items at concessional rate of customs duty viz. 1. Skimmed and whole milk powder. Milk food for babies etc. (Tariff Code No.0402.10 or 0402.21) 2. Maize (Corn) – other (Tariff Code No.1005.90) 3. Rape; Colza, Canola or Mustard Oil, other (Refined) (Tariff Code No.1514.19 & 1514.99) 4. Crude Sunflower Seed or Safflower Oil or Fractions thereof (Tariff Code No.1512.11). 3. Pursuant to the aforesaid prior commitment given to WTO, the Department of Revenue vide notification No.21/2002 – Customs dated 01.03.2002 notified concessional rate of duty for import of four items under TRQ subject to issue of tariff rate quota allocation certificate by Exim Faciliation Committee, in accordance with the procedure notified by the Director General of Foreign Trade (DGFT) through a public notice. Accordingly, the DGFT issued public notice No.38/2002-2007 dated 04.10.2002 laying down the procedure for importing of various items under TRQ. Under the aforesaid procedure, the State Trading Enterprises were allowed to import the above commodities only on behalf of ‘actual users’. 4. Accordingly, the DGFT issued public notice No.38/2002-2007 dated 04.10.2002 laying down the procedure for importing of various items under TRQ. Under the aforesaid procedure, the State Trading Enterprises were allowed to import the above commodities only on behalf of ‘actual users’. 4. Petitioner states that the said procedure duly protected domestic producers of popcorn, as the imported popcorn was not available for trading under the concessional rate of customs duty. Petitioner, therefore, challenges the impugned notification issued by DGFT wherein a public notice No.47 (RE-2006)/2009-2014 dated 18.05.2011 was issued, inter alia, (1) declaring that under TRQ scheme the import of maize (corn) ITCHS code 1005.90 is allowed duty free as has already been notified by customs notification No.9/2007 dated 25.01.2007 and (2) With effect from the date of public notice the actual user condition will not be mandatory for import of items under TRQ scheme. Petitioner’s challenge is to the aforesaid public notice, particularly, the deletion of condition of actual user for importing popcorn. 5. Mr. D.V. Seetharama Murthy, learned senior counsel for the petitioner, has made elaborate submissions, which are replied to by the learned Assistant Solicitor General. Mr. M.S. Ramachandra Rao, learned counsel, has appeared for proposed respondent, who seeks impleadment in opposition to the writ petition. The said implead petition is opposed by the learned senior counsel for the petitioner on locus and bonafides of the proposed party. 6. I have, however, allowed Mr. M.S. Ramachandra Rao to make his submissions on merits as well and as detailed hereunder, the application for impleadment deserves to be allowed, as the proposed respondent, if not a necessary party, certainly is a proper party, particularly, as the public law remedy is invoked by the petitioner. The reasons for permitting the impleadment as well as merits of the contentions are discussed hereunder. The implead application, being WPMP.No.38566 of 2011 is accordingly ordered. 7. The bone of contention of the learned senior counsel for the petitioner is that the condition of ‘actual user’ as per the procedure prescribed by DGFT under notification dated 04.10.2002 continued to operate till the impugned notification was issued. In support thereof, he relies upon the various licenses for import issued to various importers in 2010, which contain the condition of actual user. In support thereof, he relies upon the various licenses for import issued to various importers in 2010, which contain the condition of actual user. He also points out that the form and the annexure required to be filled up by each importer also contains an undertaking on behalf of the importer that he satisfies the requirement of actual user. Learned senior counsel also submits that the condition of actual user has been imposed in greater public interest so as to protect the domestic producers and though the Government of India discharges its obligations under WTO by prescribing concessional customs duty on the said four food products, the condition of actual user continued to operate. The present impugned notification declaring that the said condition is no more mandatory, according to the learned senior counsel, would seriously harm importers like petitioner in particular and the cultivators of popcorn in India in general. It is further contended that the concessional customs duty of 15% was later withdrawn by the Government of India making the maize (corn) free of customs duty and if the condition of actual user is not applied the importers will freely trade in the commodity thereby totally affecting the farmers of popcorn in India. 8. According to the learned senior counsel for the petitioner, therefore, the impugned notification has been issued by withdrawing the restriction of actual user, without any application of mind, which will directly impact the marginal and impoverished farming community in India and as such, not in public interest. Learned senior counsel, therefore, submits that the change in the policy by the Government of India in making the import free of any condition is liable to be interfered with in public interest as well. 9. Learned senior counsel for the petitioner elaborated his contentions by referring to Section 11 of the Customs Act, 1962 and Sections 5 and 6 of the Foreign Trade (Development and Regulation) Act, 1992 and the foreign trade policy thereunder in the light of the facts of the present case and contends that the actual user condition was in conformity with the aforesaid provisions of the Customs Act and the export and import policy. The impugned public notice issued by DGFT, being contrary to the intention of the aforesaid provisions, is, therefore, liable to be declared as arbitrary. 10. The impugned public notice issued by DGFT, being contrary to the intention of the aforesaid provisions, is, therefore, liable to be declared as arbitrary. 10. It is also contended by the learned senior counsel for the petitioner, by placing reliance upon a decision of the High Court of Madras in WP.No.5120 of 2011 dated 31.03.2011 to substantiate that the actual user condition was not only being insisted upon by DGFT for all imports even in 2010, but the importers were proposed to be prosecuted also for violation of the undertaking as to actual user. 11. The Assistant Director General of Foreign Trade filed a counter on behalf of respondents 2 and 4 whereas respondents 1 and 5 have filed a counter through the Commissioner of Customs and Central Excise, Hyderabad Commissionerate II. 12. Respondents 2 and 4 accepted that the Government of India relaxed the customs duty and made it concessional at 15% in discharge of the obligations of India under WTO, which is evident from the customs notification No.21/2002 dated 01.03.2002. The said customs duty was further reduced to 0% vide customs notification No.9/2007 dated 25.01.2007 as per the negotiations under the WTO. Thus, the TRQ for maize (corn), which was at 5 Lakh tons per year at concessional rate of 15% of customs duty, was reduced to 0% in 2007 itself. It is also accepted that as per the DGFT public notice dated 04.10.2002, the procedure prescribed for availing of import under TRQ scheme was restricted to eligible State Trading Enterprises only on behalf of the actual users. It is, however, stated that Inter Ministerial Meeting was held on 29.04.2003 wherein the actual user condition was made not mandatory and instead the allotment was to be made on priority basis. It is stated that pursuant to the decisions in the said meeting another public notice No.7/2002-2007 dated 09.05.2003 was issued notifying that eligible State Trading Enterprises will avail the quota as per the request of the applicants. In order to clarify the matter beyond any pale of doubt the impugned public notice is issued by DGFT, apparently, as the prescribed form ANF 2B continued to show the actual user condition, though it was declared as non-mandatory and optional. 13. In order to clarify the matter beyond any pale of doubt the impugned public notice is issued by DGFT, apparently, as the prescribed form ANF 2B continued to show the actual user condition, though it was declared as non-mandatory and optional. 13. It is also stated that though the quota under the TRQ scheme for Maize (corn) was fixed at 5,00,000 MT, the actual imports for the year 2002-2005 onwards have been much below the prescribed quota, as per the table below: It is, therefore, stated that the quota remained largely unutilized and is insignificant to affect the domestic market. It is also stated that for the years 2009-2010 and 2010-2011 the exports of maize (corn) were 26 lakh MT and 17 lakh MT respectively whereas the imports were only 19,000 MT and 7,000 MT respectively. Thus, the imports being less than 1% of the exports, being insignificant, no harm or prejudice is caused to domestic market. The withdrawal of actual user condition is sought to be justified on the ground that the maize (corn) under TRQ scheme, being a food item, the compliance with actual user condition may not be entirely possible. Hence, in the Inter Ministerial Meeting held in the year 2003 instead of making imports subject to ‘actual user’ condition, imports were directed to be prioritized in terms of need base of the applicants. 14. The impleaded seventh respondent, through his affidavit submits that the earlier condition of actual user continued in the prescribed form in spite of the decision in the Inter Ministerial Meeting in the year 2003 itself, particularly, as the prescribed form for making application for imports was not appropriately amended and continued to show that applicant is required to satisfy the condition of ‘actual user’. It is on account of the lack of appropriate modification that the confusion prevailed and the licenses issued continued to show the condition of ‘actual user’. In order to clarify the confusion, therefore, the impugned public notice is issued by DGFT. The seventh respondent states that he had imported the corn under TRQ scheme and though the imported Maize has reached India, on account of the interim suspension of the impugned notification granted by this Court, the seventh respondent is unable to take the delivery. He, therefore, contends that he is seriously affected by the interim order as well as the pendency of the writ petition. He, therefore, contends that he is seriously affected by the interim order as well as the pendency of the writ petition. It is also contended that the decision of the Government of India reflected in the Foreign Trade Policy and the notification issued by DGFT from time to time clearly show that actual user condition, which was insisted upon in the initial public notice of 2002, stood withdrawn thereafter and the subsequent public notices from 2004 onwards did not contain the requirement of actual user. The public notices issued for the years 2004 to 2006 and 2010 have been placed on record to substantiate that the actual user condition, as was found in the public notice of 2002 is not found in the later notices after 2003. The decision of the Government of India on the policy of import, it is contended, is not justiciable. It is also contended that the quantity of imports being much below the quota prescribed, the policy of the Government of India can neither be said to be arbitrary nor it is against the domestic growers. It is pointed out that no such condition is found in post 2003 public notices issued by DGFT, but the petitioner has not questioned any of those notices. 15. In order to get over that part of the respondents’ contentions, learned senior counsel for the petitioner contends that the condition of actual user is a default condition, which automatically applies unless it is expressly made inapplicable and the impugned public notice is, therefore, challenged, as this, for the first time, declares the actual user condition as non-mandatory. 16. The gist of the pleadings, referred to above, and the contentions advanced by the respective learned counsel pose the following points for determination: 1. Whether the impugned public notice issued by the DGFT is without jurisdiction and contrary to the Government of India’s policy, particularly, regarding the condition of actual user? 2. Whether the impugned public notice is merely a clarification of the decision of the Government of India? 3. If the withdrawal of condition of actual user is held to be a decision by the Government of India, is it not affected by non-application of mind and is it not arbitrary and against public interest? POINT Nos.1and 2: 17. 2. Whether the impugned public notice is merely a clarification of the decision of the Government of India? 3. If the withdrawal of condition of actual user is held to be a decision by the Government of India, is it not affected by non-application of mind and is it not arbitrary and against public interest? POINT Nos.1and 2: 17. The affidavit filed by the petitioner in support of the writ petition proceeds on a specific contention that the decision of withdrawal of ‘actual user’ condition is that of the Government of India, which is also reflected in the prayer. Learned senior counsel for the petitioner, however, made submissions on the ground that under the Foreign Trade (Development and Regulation) Act, 1992, Section 5 provides that the Central Government may from time to time formulate and announce, by notification in the official Gazette, the export and import policy. So far as DGFT is concerned, under Section 6 of the Act sub-Section (2) provides that DGFT may advise the Central Government in formulation of export and import policy and shall be responsible for carrying out that policy. Sub-section (3) provides that the Central Government may delegate powers exercisable by it to DGFT or his subordinates except the powers of Central Government under Sections 3, 5, 15, 16 and 19 of the Act. It is, therefore, contended that the power under Section 5 with respect to policy formulation cannot be discharged by DGFT. Section 11 of the Customs Act, 1962 is also relied upon, which provides that the Central Government, if satisfied on necessity to do so for any of the purposes satisfied in subsection (2), may prohibit or regulate import or export of goods and the purposes referred to for exercise of power are categorized under sub-section (2). Reliance is also placed upon sub-clause (g), (j) and (v) of sub-section (2) of Section 11 of the Customs Act viz. (g) the prevention of surplus of any agricultural product or products of fisheries; (j) the prevention of serious injury to domestic production of goods of any description and (v) any other purpose conducive to the interests of the general public. 18. Under the scheme of the Foreign Trade (Development and Regulation) Act, 1992 the Government of India notified the foreign trade policy for the years 2004-2009 (which is relevant for our purpose). 18. Under the scheme of the Foreign Trade (Development and Regulation) Act, 1992 the Government of India notified the foreign trade policy for the years 2004-2009 (which is relevant for our purpose). The power of amendment to the policy is, undoubtedly, reserved with the Government of India alone as is made clear by Section 5 itself. Clauses 2.1, 2.4, 2.8 and 2.11 of the said policy are relevant for our purpose and are extracted hereunder. 19. It would be evident from the above that the item wise export and import policy shall be as specified under ITC (HS) publication and notified by DGFT, as amended from time to time. It is in pursuance of Section 6(2) read with clauses 2.1 and 2.4, referred to above, that the DGFT has to issue public notices from to time and it is made clear that such procedures may in the like manner i.e. through public notice, be amended from to time. The notification under the Customs Act conveying the decision of the Government of India was published under notification No.21/2002 – customs dated 01.03.2002 whereunder for tariff item No.1005.90 15% of standard rate of customs duty was notified under Sl.No.21 and for Sl.No.22 also relating to the same custom tariff No.1005.90 of goods other than those specified in SlNo.21 attracted standard customs duty at 50%. The aforesaid notification was amended by a further notification of the Central Government under notification No.42/2008 – customs dated 01.04.2008, prescribing duty against Sl.No.21 as Nil. As per the counter affidavit of respondents 2 and 4, 0% customs duty was provided under the Customs Act vide notification No.9/2007 dated 25.01.2007 but the copy of the said notification is not placed on record. Consequential decision of the Government of India is reflected in DGFT notification dated 04.10.2002 under public notice No.38/2002-2007 wherein the procedure prescribed for import is allowed only on behalf of the actual users for all the said four items, referred to above, including maize. After the Inter Ministerial Meeting and in conformity with the notification of the Government of India under the Customs Act, referred to above, public notice No.7/2002-2007 dated 09.05.2003 was issued by DGFT with respect to all the said four items of food without the condition of actual user. After the Inter Ministerial Meeting and in conformity with the notification of the Government of India under the Customs Act, referred to above, public notice No.7/2002-2007 dated 09.05.2003 was issued by DGFT with respect to all the said four items of food without the condition of actual user. It would be useful to extract the relevant portion of sub-clause (2) of the said public notice as under: “…In exercise of powers conferred in Paragraph 2.4 of the Export and Import policy 2002-2007, as notified in the Gazette of India extraordinary Part – II Section 3, subsection (ii) vide S.O.No.349(E) dated 31.03.2002 as amended from time to time and as per provisions at condition No.1 of the Annexure to Notification No.21/2002 – customs dated 1.3.2002, the Director General of Foreign Trade hereby notifies the procedure for allocation of this Tariff Rate Quota (TRQ) as under …” 20. In contrast to the DGFT’s public notice of 2002, the actual user condition is not found in the subsequent public notices. Similar public notice No.63(RE-03) dated 12.05.2004 also did not contain the condition of actual user and so also the subsequent public notices dated 27.05.2005, 09.01.2006 and 18.03.2010. However, annexure to the public notice dated 09.05.2003 containing prescribed application format for import of items covered under TRQ continue to show the requirement of the applicant having to declare that goods imported will be utilized for the purpose for which they are imported and shall not be sold. 21. The decision of the Madras High Court relied upon by the learned senior counsel for the petitioner related to the summons issued by the competent authority to the importer for violating the undertaking as to actual user. The learned senior counsel for the petitioner has placed reliance upon the said judgment to substantiate that even in 2010 the condition of actual user was insisted upon and being followed. He has also placed reliance upon the license granted to NAFED dated 08.04.2010 by DGFT for importing 1300 MT of maize (corn), which was also specifically made subject to actual user condition besides other usual conditions. As mentioned earlier, pages 72 to 76 of the writ petition contain various licenses issued by the office of the DGFT to various importers all of which contain the condition of actual user even in the year 2010. As mentioned earlier, pages 72 to 76 of the writ petition contain various licenses issued by the office of the DGFT to various importers all of which contain the condition of actual user even in the year 2010. Learned senior counsel, therefore, submits that the theory propounded by respondents 2 to 4 and further supported by the seventh respondent that in the Inter Ministerial Meeting itself the condition of actual user was deleted, has no substance and is factually not tenable. 22. In my view, the policy of the Government of India under the Customs Act as well as the Foreign Trade (Development and Regulation) Act, notified in the customs notification and the foreign trade policy and the public notices thereafter issued by DGFT from time to time amply make it clear that all the decisions are that of the Government of India. Petitioner also accepts the same as is evident from paragraphs 21 and 22 of the affidavit as well as the prayer in the writ petition. It is, therefore, not open for the petitioner to contend that the impugned public notice is a decision of the DGFT and not that of the Government of India. Even otherwise under clause 2.1 of the Foreign Trade Policy, extracted above, shows that the policy of the Government of India is notified by DGFT through public notices. I am, therefore, unable to see any substance in the contentions of the learned senior counsel for the petitioner so far as point No.1 is concerned. So far as justiciability of the policy parameters is concerned, the legal position is well settled by several decisions of the Supreme Court. A profitable reference may be made to the decision of the Supreme Court in AKHIL BHARAT GOSEVA SANGH v. STATE OF A.P. ( (2006) 4 SCC 162 ),which was also a case dealing with THE export policy of Government of India, the relevant portion of para 67 as follows: “…it is also the consistent policy of the Government of India to encourage export of meat and meat produce…Therefore, the position of law remains that the directive principles and fundamental duties cannot in themselves serve to invalidate a legislation or of a policy. Moreover, the export policy itself permits only export of meat from buffaloes that are certified as not useful for milching, breeding or draught purposes. Moreover, the export policy itself permits only export of meat from buffaloes that are certified as not useful for milching, breeding or draught purposes. Therefore, if properly implemented, it cannot be said that the policy will necessarily have adverse consequences, especially in view of the foreign exchange obtained through it. Accordingly, we are unable to accede to the argument of the learned counsel for the appellant that the meat export policy, as made by the Central Government must be struck down.” 23. Another decision of the Supreme Court in DARSHAN OILS PVT.LTD v. UNION OF INDIA ( (1995) 1 SCC 345 ) would also be relevant to be noticed as the said decision deals with the amendment of import policy of the Government of India wherein it was held that withdrawal of a notification issued under the Customs Act in public interest does not amount to violation of the doctrine of promissory estoppel and the import policy prevailing at the time of import of goods was upheld. Para 16 of the counter of respondents 2 and 4 refers to another decision of the Supreme Court in P.T.R. EXPORTS (MADRAS) PVT. LTD. v. UNION 0F INDIA ( 1996 (86) ELT 3 (SC) = (1996) 5 SCC 268 ), para 5 of which is relevant to be extracted, as under: “5. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of grant of the licence. The Court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government is satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay own new policy. The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilization of its finances in the public interest. It is equally entitled, therefore, to issue or withdraw or modify the export or import policy in accordance with the scheme evolved. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilization of its finances in the public interest. It is equally entitled, therefore, to issue or withdraw or modify the export or import policy in accordance with the scheme evolved. We, therefore, hold that the petitioners have no vested or accrued right for the issuance of permits on the MEE or NQE, nor is the Government bound by its previous policy. It would be open to the Government to evolve the new schemes and the petitioners would get their legitimate expectations accomplished in accordance with either of the two schemes subject to their satisfying the conditions required in the scheme. The High Court, therefore, was right in its conclusion that the Government is not barred by the promises or legitimate expectation from evolving new policy in the impugned notification.” 24. In view of the aforesaid legal position, therefore, the policy of the Government of India stipulating the customs duty at Nil rate and withdrawing the condition of actual user cannot be said to be arbitrary, particularly, in view of the factual position evident from the table, extracted above, that the imports being way below the quota prescribed has no affect on domestic growers or the market and no harm to domestic growers or consumers is caused by notifying duty free import of maize (corn) and withdrawing the restriction of actual user. 25. In view of the discussion above, the impugned public notice is held to be issued by DGFT to implement the decision of the Government of India and is merely clarificatory in nature in conformity with the public notices of similar nature issued every year from 2003 onwards. Points 1 and 2 are accordingly answered against the petitioner. POINT No.3: 26. In view of the discussion above, particularly, the extent of quota allotted under TRQ and the actual imports, as discussion in para 13 above, it cannot be said that the policy of Government of India with regard to import and export, on the facts of the present case, is justiciable. Even otherwise the said policy cannot be said to be arbitrary and against public interest. Point No.3 is accordingly answered against the petitioner. The writ petition, consequently, is liable to be dismissed and is accordingly dismissed. There shall be no order as to costs.