2021 (4) TMI 428 - HC - Customs

Court grants appellant liberty to pursue benefits under Trade Notice, defers claim evaluation to competent authority

The Court allowed the appeal, setting aside the single Judge's order and granting the appellant the liberty to pursue benefits under Trade Notice ... Availability of relief under Trade Notice No.7/2018 dated 8th May 2017 - precedential effect of the Supreme Court decision in DIRECTOR GENERAL OF FOREIGN TRADE v. KANAK EXPORTS - setting aside of impugned writ dismissal and grant of liberty to seek statutory reliefPrecedential effect of the Supreme Court decision in DIRECTOR GENERAL OF FOREIGN TRADE v. KANAK EXPORTS - availability of relief under Trade Notice No.7/2018 dated 8th May 2017 - Impugned order dismissing the writ petition was set aside and the appellant was granted liberty to take steps to avail benefit under Trade Notice No.7/2018 dated 8th May 2017 in light of the Supreme Court decision. - HELD THAT: - The High Court accepted counsel's concession that the controversy is governed by the Supreme Court's decision in DIRECTOR GENERAL OF FOREIGN TRADE AND ANOTHER v. M/S. KANAK EXPORTS AND ANOTHER, and, applying that precedent, allowed the appeal. The court did not undertake fresh adjudication of the merits; instead it vacated the single Judge's order dated 29th September 2005 and disposed the writ appeal by permitting the appellant to invoke the procedure prescribed in Trade Notice No.7/2018 dated 8th May 2017. The respondents did not resist the grant of liberty to the appellant to pursue the statutory remedy outlined in the Trade Notice.Order dated 29th September 2005 set aside; appellant granted liberty to take steps to avail benefit under Trade Notice No.7/2018 dated 8th May 2017 pursuant to the Supreme Court decision.Adjudication of merits by the competent authority - no expression of opinion on merits - Merits of the appellant's claim under the Trade Notice were not decided by the Court and are to be adjudicated by the competent authority. - HELD THAT: - The Court explicitly refrained from expressing any view on the substantive merits of the appellant's claim. The appeal was disposed solely on the basis that the appellant be allowed to pursue the relief in accordance with the Trade Notice and the binding Supreme Court precedent. The competent authority is left to examine and decide the claim on merits in accordance with law and applicable procedures.Merits not adjudicated; matter to be considered and decided by the competent authority.Final Conclusion: Appeal disposed by setting aside the single Judge's order and granting the appellant liberty to invoke Trade Notice No.7/2018 dated 8th May 2017 in accordance with the Supreme Court's decision; merits to be determined afresh by the competent authority. Issues:Challenge to Notification dated 21st April 2004 - Dismissal of writ petition - Benefit under Trade Notice No.7/2018 dated 8th May 2017 - Appellant's entitlement to avail benefits.Analysis:The appellant challenged the Notification dated 21st April 2004 in a writ petition before the learned single Judge, which was subsequently dismissed. The appellant appealed this decision, which led to the current judgment. During the proceedings, the appellant's counsel referred to a Supreme Court judgment (2016) 2 SCC 226 (DIRECTOR GENERAL OF FOREIGN TRADE AND ANOTHER vs. M/S.KANAK EXPORTS AND ANOTHER), indicating that the issue at hand was covered by this precedent.The appellant's counsel further pointed out that in line with the Supreme Court decision, the respondents had issued Trade Notice No.7/2018 dated 8th May 2017. It was acknowledged by the Central Government Standing Counsel that the appellant should be allowed to take necessary steps to benefit from this notice. The Court, considering the Supreme Court's ruling in the mentioned case, set aside the single Judge's order from 29th September 2005 and disposed of the Writ Appeal based on the Supreme Court's decision. The appellant was granted the liberty to pursue the benefits under Trade Notice dated 8th May 2017, with a clarification that the Court did not express any opinion on the merits of the appellant's claim, leaving it to be decided by the competent Authority.In conclusion, the Appeal was disposed of in favor of the appellant, allowing them to take necessary steps to avail of the benefits under the Trade Notice. The judgment emphasized adherence to the Supreme Court's decision and deferred the evaluation of the appellant's claim to the competent Authority.