Customs clearance under EPCG Scheme cannot be denied as retrospective when goods remain in the course of import

A special order permitting import through Dhamra Port under the EPCG Scheme could not be refused on the ground of retrospective effect. The Court stated that goods remain in the course of import until customs clearance, and unloading at the port does not complete import in law. On that basis, the Commissioner's view was erroneous because the notification and Foreign Trade Policy allowed clearance of goods already arrived but not yet cleared, and no prior intimation requirement justified rejection. The impugned order was quashed, and consequential relief was directed to enable customs clearance.

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Issues: Whether the Commissioner of Customs was justified in ing the request to issue a special order under paragraph 10 of Notification No. 16/2015-Customs for permitting import through Dhamra Port under the EPCG Scheme, and whether such permission could be denied on the ground that it would operate retrospectively.

Analysis: The Notification issued under section 25(1) of the Customs Act, 1962 empowered the Commissioner to permit import through any other port within his jurisdiction by special order or public notice. The goods had reached the customs area, but clearance had not been granted and the import was still in the course of import. The Court held that unloading at the port did not complete the import in law and that the Commissioner proceeded on an erroneous view that any order would be retrospective merely because the goods had already been unloaded. The scheme and the Foreign Trade Policy also recognized clearance of goods already imported, shipped, or arrived in advance but not yet cleared from customs. The delay in passing the order and the absence of a prior intimation requirement could not justify rejection of the request.

Conclusion: The rejection was unsustainable. The Commissioner ought to have granted the special order, and the denial on the ground of retrospective operation was in law.

Final Conclusion: The writ petition succeeded, the impugned order was quashed, and consequential relief was directed so that the importer could proceed with customs clearance under the EPCG Scheme.

Ratio Decidendi: Goods remain in the course of import until they are cleared by customs, and a special order permitting import through an otherwise non-notified port operates prospectively from the date of permission rather than retrospectively.

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