TaxTMI 
TaxTMI 
2006 (9) TMI 106
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....ce, and also contrary to the provisions of General Clauses Act,1897, as the said Notification cannot be made operative with retrospective effect when principal Act does not provide the same, in view of the judgment of Hon'ble Supreme Court as well as for the reasons stated in the memo of this petition; (B) Your Lordships be pleased to issue an appropriate writ, order and/or direction which Your Lordships may deem fit, and quash and set aside the letter dated 28/6/2006 and 11/7/2006 issued by the respondent No.3 and 4 as the same are also against the provisions of law and against the judgment of Hon'ble Supreme Court; (C) Pending admission and till final disposal of this petition, Your Lordships be pleased to grant stay of operation, execution and implementation of the impugned notification No. 19 (RE-2006) 2004-2009 dated 4/7/2006 passed by respondent No. 2 giving retrospective effect to the Notifications No.15 (RE-2006) 2004-09 dated 27/6/2006 and No.17 (RE-2006) 2004-09 dated 3/7/2006 w.e.f. 22/6/2006, and further be pleased to direct the respondent authorities to permit the petitioner to load the remaining 87 containers which are lying at Kandla Port area for export forthwith ....
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.... be extended up to 31/3/2007. However, vide another Notification dated 4/7/2006 (impugned Notification) the earlier Notification dated 27/6/2006 has been amended so as to give retrospective effect with effect from 22/6/2006 on the ground that the announcement regarding the decision of the Government to impose ban/prohibition of the items mentioned in the Notification had received wide publicity in the print and electronic media on 22/6/2006. Respondent No.4 therefore vide communication dated 11/7/2006 has conveyed the decision of Commissioner of Customs, Kandla and stated that only export consignments which were handed over to Customs up to 22/2/2006 would be allowed and in relation to export consignments which were handed over to Customs for examination etc. between 22/6/2006 and 27/6/2006 exports would not be allowed, Shipping Bills need to be cancelled and goods, if arrived, need to be taken back. 4 The learned Advocate appearing on behalf of the petitioner has assailed the impugned Notification dated 4/7/2006 pointing out that the case of the petitioner is not governed by the said Notification because by virtue of order made under section 51 of the Customs Act, 1962 (Cus....
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....stration of the contract would form a valid ground to carve out an exception. He submitted that the decision rendered by the High Court of Delhi on 18/8/2006 in W.P.(C) 11691-11692/2006 & CM 8807/2006= 2006(204) E.L.T. 161 (Del.)between Agri Trade India Services Pvt. Ltd. and Union of India and others was also therefore not applicable on the facts of the case. 6. Mr.R.M.Chhaya, learned Counsel appearing on behalf of respondent Nos. 3 and 4 has supported the stand of the respondent authorities. However, to a pointed query as to whether the consignments which were handed over to the Customs Authorities for examination had been cleared, he referred to the affidavit-in-reply to submit that the consignments had been received for examination on 23-24/6/2006 and the procedure as required by sections 50 & 51 of the Customs Act were undertaken by the concerned authorities. 7 Section 50 of the Customs Act relates to making Entry of goods for exportation and such entry is made by presenting a shipping bill to the proper officer. Section 51 of the Customs Act relates to Clearance of goods for exportation and lays down that where the proper officer is satisfied that any goods entered f....
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....xxx xxx xxx xxx However, wherever the Policy provisions have been modified to the disadvantage of the exporters, the same shall not be applicable to the consignments already handed over to the Customs for examination and subsequent exports upto the date of the Public Notice. 11. Thus, on a plain reading paragraph No. 9.12 provides for different dates of shipment/dispatch depending on the mode of transportation, but a general exception is carved out which stipulates that wherever policy provisions have been modified to the disadvantage of the exporters, the same shall not be applicable to the consignments already handed over to the Customs for examination and subsequent exports upto the date of the public notice. 12. The submission that the phrase "disadvantage of the exporters" should only mean that advantages/benefits specified in Chapter No.4 and Chapter No.5 of the Foreign Trade Policy are not being allowed, or are being withdrawn, or are being denied and no other disadvantage is contemplated does not merit acceptance. Admittedly the term "disadvantage" has not been defined either under the Foreign Trade Act, or under the Foreign Tr....