Bombay High Court
Al Zubair Exporter vs Union Of India & Ors on 1 December, 2011
Bench: Dr. D.Y. Chandrachud, A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9043 OF 2011
AL Zubair Exporter .. Petitioner.
versus
Union of India & Ors. .. Respondents.
.....
Mr. Zubin Behram Kamdin with Mr. Charles Desouza and
Mr. Gandhar Raikar for Petitioner.
Mr. D.J. Khambata, ASG with Mr. R.V. Desai, Sr. Adv.,
Mr. Rajinder Kumar and Mr. Prashant Kamble
for Respondents.
......
CORAM : DR.D.Y.CHANDRACHUD &
A. A. SAYED, JJ.
01 DECEMBER 2011.
ORAL JUDGMENT : (PER DR.D.Y.CHANDRACHUD, J.)
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The Petitioner has sought to challenge a notification
issued by the Union Government in the Ministry of Commerce
and Industry on 31 October 2011. By the notification which has
been issued in exercise of powers conferred by Section 5 of the
Foreign Trade (Development & Regulation) Act, 1992 read with
Para 2.1 of the Foreign Trade Policy, 2009-2014 as amended from
time to time the Central Government has substituted Chapter -
2 of Schedule 2 of the ITC (HS) Classification of Export and
Import Items, with a fresh provision. Chapter - 2 deals with
"Meat and Edible Meat Offal." Note 6 to Chapter - 2 is to
the following effect :
"Note 6. Export of meat and meat products will be
allowed subject to the exporter furnishing a
declaration, attached with copies of valid APEDA
Plant Registration Certificate(s) to the customs at
the time of exports that the above items have been
obtained/sourced from an APEDA registered
integrated abattoir or from APEDA registered meat
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processing plant which sources raw material
exclusively from APEDA registered integrated
abattoir/abattoir."
As a result of the amendment, exporters are now required to
certify that (i) the items of export have been obtained/ sourced
from an APEDA registered integrated abattoir or from an
APEDA registered meat processing plant; and (ii) the raw
material has been sourced from an APEDA registered integrated
abattoir/abattoir.
2. The Petitioner is an exporter of buffalo meat and
commenced its business in 1992. The Petitioner is registered
with the Agricultural and Processed Food Products Export
Development Authority ("APEDA") a statutory body constituted
under the Agricultural and Processed Food Products Export
Development Authority Act, 1985 APEDA has been established
under the provisions of the Act for the development and
promotion of export of agricultural and processed food
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products and for matters connected therewith. Under Section 2
(i) a scheduled product is defined to mean any of the
agricultural or processed food products included in the
schedule. Meat and meat products are scheduled products
under the Act. Section 10 prescribes the functions of the
Authority. Section 10(2) (d) empowers the Authority to carry
out inspection of meat and meat products in any slaughter-
house, processing plant, storage premises, conveyances or other
places where such products are kept or handled for the
purpose of ensuring the quality of such products.
3. Parliament has also enacted the Export (Quality
Control & Inspection) Act, 1963 to provide for the sound
development of export trade of India through quality control
and inspection. In exercise of powers conferred by the Act, the
Union Government has made the Export of Raw Meat
(Chilled/Frozen) (Quality Control and Inspection) Rules, 1992.
Rule 3.2 prescribes the requirement of an abattoir as follows :
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"3.2 Requirement of an abattoir
For the purpose of assuring the quality of meat for
exports it shall be ensured that the abattoir where
the animals are slaughtered shall meet with the
following requirements;-
(a) All abattoirs servicing raw material
requirements of the industry for meat for
export and in existence as on the date of
commencement of these rules shall comply
with the requirements stipulated in IS
4393-1979 'Basic requirement for an abattoir'.
(b) The abattoir or slaughter houses constructed
after the date of the notification of these
rules and utilized for purposes of securing
raw material for export of meat shall comply
with the requirements of IS 4393-1979."
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4. On 21 December 2004 a notification was issued by
the Director General of Foreign Trade under Section 5 of the
Foreign Trade (Development & Regulation) Act, 1992 read with
Paragraphs 1.1, 2.1, 2.4 and 2.29 of the Foreign Trade Policy,
2004-2009 by which certain amendments were made in Table B
of Schedule 2 of the ITC(HS) Classifications of Export and
Import Items. In Chapter 2 which deals with "Meat and
Edible Meat Offal", the following note came to be inserted :
" Export of meat and meat products will be
allowed subject to the exporter furnishing a
certificate to the customs at the time of export that
the above items have been obtained/sourced from
an abattoir/ meat processing plant registered with
APEDA."
Under the procedure which was enumerated on 3 March 2009
for grant of registration certificates to abattoirs and meat
processing plants, the application for registration was to be
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accompanied with prescribed data in Form II. Item 11 of Form
II deals with slaughter facilities. The applicant had to disclose
whether the abattoir is a modern abattoir. If slaughter house
facilities were not available and raw-materials were outsourced,
the places from where the raw-material was sourced had to be
disclosed together with the APEDA registration number.
5.
The impugned notification has been issued by the
Union Government in the Ministry of Commerce and Industry
on 31 October 2011. In essence the requirement that is
stipulated in Note 6 which forms part of Chapter II of the ITC
classification is that the export of meat and meat products
would be allowed only subject to the exporter furnishing a
declaration together with copies of a valid APEDA plant
registration certificate to the customs at the time of export.
The certificate has to state that the export items have been
obtained or sourced from an APEDA registered integrated
abattoir or from an APEDA registered meat plant which sources
raw material exclusively from an APEDA registered integrated
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abattoir / abattoir. The challenge of the Petitioner to the
validity of the notification is on the ground that it is
discriminatory and is, therefore, violative of the fundamental
right under Article 14 of the Constitution and constitutes an
unreasonable restraint on the right to carry on business
thereby infringing Article 19 (1)(g) of the Constitution.
6.
In the affidavit in reply that has been filed by
Deputy Director General of Foreign Trade the rationale for the
notification has been set out. According to the Respondents,
the provisions of the earlier notification dated 21 December
2004 were being misinterpreted to mean that only a meat
processing plant was required to be registered with APEDA and
not an abattoir. This would result in a situation wherein an
exporter would furnish to the Customs at the time of export
only a certificate to the effect that the meat has been obtained
/ sourced from an abattoir even though such an abattoir is not
registered with APEDA. This, it has been stated in the reply,
had resulted in illegal and unauthorised slaughter of animals
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since the meat for export can be sourced from any abattoir
without the requirement of the abattoir being registered with
APEDA being fulfilled. The practice in trade, it is stated, is
that an animal is slaughtered in an abattoir (most abattoirs
being municipal abattoirs) and the carcass is taken to a meat
processing plant, generally private, for further processing. In
certain cases, the abattoir is attached to its own meat
processing plant, this being referred to as integrated abattoir.
Presently it is stated, most of the processing plants are
procuring carcasses from municipal abattoirs over which APEDA
has no control. If the animal is slaughtered at a non-
registered abattoir, any defect in quality or any bacterial
contamination of the meat cannot be attended to subsequently
at the meat processing plant, even though the meat processing
plant may be registered with APEDA. An animal slaughtered
at a non-registered abattoir may be contaminated and infected
with bacteria and pollutants. It is, therefore, submitted that
the requirement of APEDA certification / registration will
ensure that abattoirs, most of which are municipal, will have
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to maintain standards of hygiene, safety and cleanliness and
ensure compliance with the standards prescribed by the Bureau
of Indian Standards and the Export of Raw Meat Rules.
Abattoirs, it is submitted, will have to modernize and upgrade
with new technology and this will ensure that the local
consumers of meat will get a more hygienic and clean product.
Moreover, the reputation of Indian meat in the international
market is at stake since India is the third largest exporter of
meat in the world. In Para 11 of the affidavit, it has been
stated that the notification was issued after meaningful
discussions with all the affected stake holders including All
India Meat and Livestock Exporters Association. The impugned
notification was issued after taking into account a
communication which was received from APEDA.
7. We do not find any merit in the challenge to the
validity of the notification. The earlier notification dated 21
December 2004 stipulated that the export of meat and meat
products would be allowed subject to the exporter furnishing a
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certificate to the customs at the time of export, that the items
of export have been obtained / sourced from an abattoir /
meat processing plant registered with APEDA. The intention of
the notification, in our view, is clear. The Certificate which was
required to be furnished to Customs would require the
exporter to establish that the meat which was under export
had been obtained/sourced from an abattoir and from a meat
processing plant registered with the APEDA. The use of the
expression "abattoir / meat processing plant" would not be
susceptible of the interpretation that either the abattoir or the
meat processing plant were registered with APEDA. Such a
construction would defeat the very purpose and object of the
notification which was to ensure that export goods pertaining
to meat were of requisite quality. As a matter of fact, as noted
earlier, an applicant for registration of an abattoir/ meat
processing plant, was required to make a disclosure in Form II
of the forms appended to the notification dated 3 March 2009.
The applicant was required to disclose as to whether the
abattoir in question was a modern abattoir and if slaughter
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facilities were not available and raw material was outsourced,
whether the place from which the meat was sourced had
APEDA registration.
8. The present notification dated 31 October 2011 is
clarificatory. The notification now sets at rest an element of
doubt which arose under the earlier notification as to whether
it was sufficient if the meat processing plant alone was
registered with APEDA or whether in addition the raw-material
had to be sourced from an APEDA registered integrated
abattoir/abattoir. Under the present notification, both the
meat processing plant and the place wherefrom the meat is
sourced as a raw-material have to be duly registered with
APEDA. This was the intendment of the earlier notification
dated 21 December 2004. Moreover, the notification has a
nexus with the object sought to be achieved which is to ensure
that the quality of the meat exports conforms to basic
conditions of hygiene and quality. No discrimination is made
by the notification. Whether the meat processing plant has
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an integrated abattoir or is only a stand alone meat
processing plant, does not make any difference to the
applicability of the notification. In the case of both, a
registration is required with APEDA. Moreover, the place from
which the raw material is sourced is also required to be
registered with APEDA. In our view, the Union Government
was not acting ultra vires its statutory powers when it imposed
these restrictions. These restrictions were as a matter of fact
in existence since 2004 and the notification of 31 October 2011
is clarificatory to set the matter beyond any doubt. The
fundamental right of carrying out business under Article 19 (1)
(g) is subject to reasonable restraints under Article 19 (6). The
notification does not fall foul of Constitutional provisions.
9. The attention of the Court has been drawn to a
judgment of the Delhi High Court of 28 November 2011
dismissing a petition raising a similar challenge. (M/s. Marya
Frozen Agro Foods Pvt. Ltd., vs. Union of India W.P. (C) No. 8379
of 2011. The Delhi High Court in the concluding part of its
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judgment noted an alternate submission of the Petitioner that
the condition had been imposed all of a sudden and it will
take sometime for persons like the Petitioner there who were
otherwise registered with APEDA as a meat processing plant to
provide an integrated abattoir. The Petitioner had made a
representation on 18 November 2011 by which some time was
sought for installation and commissioning of a slaughter line at
the plant of the Petitioner. The Division Bench of the Delhi
High Court observed that since a representation was made a
few days prior to the order, the Respondents shall pass
appropriate orders thereon within a period of two weeks. The
learned Counsel appearing on behalf of the Petitioners in the
present case submitted before the Court that the Petitioners
intend to make a representation to the Respondents seeking
some time in order to set up an integrated abattoir as well as
for making some transitional arrangements in regard to stock
of meat presently lying with it. We permit the Petitioner to
make such a representation to the Competent Authority in the
Union Government. In the event that such a representation is
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made within two weeks from today, we expect that an
expeditious decision will be taken thereon. As regards the
existing stock of meat which the Petitioners claim needs to be
attended to on an expeditious basis, we will expect the
Competent Authority to take a decision within a period of two
weeks on receipt of the representation. Subject to the
aforesaid, we do not find any case for entertaining the petition.
The Petition shall accordingly stand dismissed. There shall be
no order as to costs.
(Dr. D.Y. Chandrachud, J.)
(A. A. Sayed, J.)
