2018 (9) TMI 1606 - HC - Customs

Court Grants Petition on Import Restrictions, Bars Retrospective Circulars

M/s. Shah Nanji Nagsi Exports Pvt. Ltd., Versus Union of India, through the Secretary, Ministry of Commerce and Industry, The Commissioner of Customs and Central Excise, Nagpur., The Director General of Foreign Trade,

The court allowed the writ petition, addressing grievances related to relaxation benefits and import restrictions. It considered subsequent events, ... Effect of notification - Restriction imposed on import of yellow peas - vide Notification No. 32 dated 30th August, 2018 - Held that:- Respondents are clear that policy change on a particular item applies prospectively from the date of Notification unless it is otherwise provided for. Here, while imposing restriction on 30th August, 2018, no words providing otherwise are employed. There is nothing on record, therefore, to show that the Notification No. 32/2015-20, dated 30th August, 2018 has to operate retrospectively. The documents filed by petitioner along with petition show that against two contracts, the balance 90 per cent amount was paid respectively on 23.05.2018 and 04.06.2018. Yellow Peas forming subject matter of those two contracts were to be loaded at Ukraine and unloaded at Nhava Sheva Port. The shipments were accordingly loaded on 28.04.2018 and 10.05.2018 and have reached the port of discharge on 23.05.2018 and 31.05.2018. These details, therefore, show that before 30th August, 2018, the contract was fully executed - respondents is directed to take necessary steps to permit petitioner to lift and use imported Yellow Peas in these two shipments without subjecting them to the restriction imposed vide Notification No. 32 dated 30th August, 2018. Petition allowed. Issues:1. Consideration of subsequent events in a legal matter.2. Grievance regarding relaxation benefits and import restrictions.3. Interpretation of trade notices and notifications.4. Retrospective effect of circulars and notifications.5. Execution of contracts and impact on import restrictions.Issue 1: Consideration of Subsequent EventsThe judgment begins by acknowledging subsequent events that have occurred after the matter was closed for judgment. Civil applications were allowed, and opportunities were given to respondents to argue the matter and file reply affidavits. The court decided not to ponder over various contentions raised earlier due to these subsequent events.Issue 2: Grievance Regarding Relaxation Benefits and Import RestrictionsThe petitioner raised concerns about not receiving the benefit of relaxation permitted on a specific date. However, it was highlighted that the petitioner's grievance regarding relaxation was redressed as the necessary authorization for import was granted by the respondents. The court also noted the submission of a registration certificate by the petitioner, which further addressed the grievance related to the omission of passing suitable orders.Issue 3: Interpretation of Trade Notices and NotificationsThe judgment delves into the interpretation of trade notices and notifications issued by the respondents. It was noted that a notification issued on a certain date withdrew the restrictions on import of Yellow Peas that were previously in place. However, a subsequent notification imposed new restrictions on import, which the court analyzed in detail.Issue 4: Retrospective Effect of Circulars and NotificationsThe court referred to a judgment of the Hon'ble Apex Court to establish that circulars and trade notifications cannot have a retrospective effect. It was emphasized that policy changes on specific items apply prospectively from the date of notification unless stated otherwise. In this case, the court found no indication that the notification imposing restrictions had to operate retrospectively.Issue 5: Execution of Contracts and Impact on Import RestrictionsThe judgment considered the execution of contracts involving the import of Yellow Peas. It was observed that the contracts were fully executed before the imposition of new restrictions, leading the court to direct the respondents to permit the petitioner to use the imported Yellow Peas without subjecting them to the new restrictions.In conclusion, the court allowed the writ petition and stayed the order for a specified period to enable the respondents to potentially appeal to the Hon'ble Apex Court.