The Supreme Court has held that a notification issued under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992, (FTDR Act) acquires the force of law only upon its publication in the Official Gazette, and not from the date it is uploaded on a government website.
The appeals arose from a Delhi High Court judgment which had upheld the imposition of a Minimum Import Price (MIP) on certain steel products with effect from February 5, 2016, the date on which the Directorate General of Foreign Trade uploaded the notification on its website, even though it was published in the Official Gazette only on February 11, 2016.
Allowing the appeals, the Bench of Justice Alok Aradhe and Justice Pamidighantam Sri Narasimha rejected the view that website uploading amounted to sufficient promulgation. The Court observed that “law, to bind, must first exist, and to exist, it must be made known in the manner ordained by the legislature.” It held that publication in the Gazette is not a procedural formality, but “it is an act by which an executive decision is transformed into law.”
The Bench emphasised that the parent statute expressly mandates publication in the Official Gazette, leaving no discretion to the executive to prescribe alternative modes of enforcement. It held that unpublished delegated legislation cannot impose obligations or curtail rights, warning that to hold otherwise would permit executive action to burden citizens without lawful notice.
Interpreting the expression “date of this Notification” appearing in the impugned notification, the Court held that it could only mean the date of Gazette publication, i.e., February 11, 2016. Consequently, importers who had opened irrevocable Letters of Credit prior to that date were entitled to the benefit of the transitional protection under Paragraph 1.05(b) of the Foreign Trade Policy.
The Supreme Court accordingly quashed the Delhi High Court’s judgment and held that the Minimum Import Price notification could not be applied to imports covered by Letters of Credit opened prior to its Gazette publication. The appeals were, accordingly, allowed.
Appearances
Appellant- Mr. S. Ganesh, Sr. Adv.(arguing counsel) Mr. Rajesh Rawal, Adv. Mr. Ashwani Kumar, AOR
Respondents- Mr. N Venkatraman, A.S.G.(NP) Mr. Raj Bahadur Yadav, AOR Mr. Anmol Chandan, Adv. Mr. Priyanka Das, Adv. Mr. Shashank Bajpai, Adv. Mr. V C Bharathi, Adv. (arguing counsel) Mrs. Rajeshwari Shankar, Adv. Mr. G S Makkee Aor, Adv.
