TaxTMI 
TaxTMI 
2019 (4) TMI 344
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....y and validity thereof be pleased to quash and setting aside Notification No.32/2015-2020 dated 30.08.2018 and Notification No.37/ 2015-2020 dated 28.09.2018 both issued by Respondent No.2; (b) this Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India ordering and directing the Respondent Nos.3 and 4 to forthwith permit clearance whole Green Peas in terms of Sales Contract No.CS0001083 dated 19.04.2018 including consignment of 188.60 MTS of Whole Green Peas lying in the bonded warehouse." 3. The factual background in which these reliefs are claimed is that the petitioner is a partnership firm duly registered under the Indian Partnership Act, 1932, having its registered office at the address mentioned in the cause title and is inter alia engaged in the business of import and sale of pulses, cereals, spices etc. 4. Respondent no. 1 is the Union of India. Respondent no.2 is an officer of respondent no. 1 discharging duties and exercising powers conferred upon him under the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as "the FTDR Act") and the Fo....
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....restriction on imports of peas till 30th September, 2018. 10. Respondent no. 2 issued another Notification No.37/20152020 dated 28th September, 2018 extending the restriction on imports of peas till 31st December, 2018. 11. On arrival of the said goods, the petitioner filed Bill of Entry No.8728014 dated 3rd November, 2018 for clearance of imported goods for home consumption. 12. The grievance of the petitioner is that it was orally informed by respondent nos. 2 and 3 that the clearance of the imported goods will be allowed for home consumption only upon the petitioner producing the Special Import Licence (SIL) from the second respondent, as, according to them, the import of the goods is restricted by respondent no.2 under various notifications issued by him. 13. Hence, the petitioner, on 14th November, 2018, requested the fourth respondent to allow it to convert the bill of entry from home consumption to warehouse in terms of section 59 of the Act. Exhibit 'K' is a copy of this letter. The said permission was granted and the goods are presently lying at the bonded warehouse. The petitioner had to warehouse the goods to prevent further demurrage and detention charges. ....
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....Code 0713 10 00, from "Free" to "Restricted" for the period from 1st April, 2018 to 30th June, 2018 subject to the following Policy condition 4 of Chapter 7 of ITC (HS), 2017, Schedule-I (Import Policy) : "During the period from 01st April to 30th June, 2018 total quantity of one lakh MT of yellow peas minus the quantity already imported from 01-04-2018 till date will be allowed against license as per procedure to be notified by DGFT". "Already Imported" will include shipment already arrived from 01-04-2018 till 25-04-2018 and those shipments backed by Irrevocable Commercial Letter of Credit (ICLC) and Advance Payment made through Banking Channel before 25-04-2018. Both these categories will be required to be registered with Jurisdictional Regional Authority as per Para 1.05 of Foreign Trade Policy, 2015-20. 9. I say that the background to the above Notifications is to safeguard the interests of the farmers. The farmers are one of the most important stakeholders in matters related to import/export of agricultural goods and the Government is required to strike a balance between the interests of domestic producers and importers. Whenever it is observed that large imports ....
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....e traders who had made the advance payments to the suppliers do not lose their money. 14. I say that vide Trade Notice No.10 dated 16th May, 2018, it has been clarified that the Import Policy of item under Exim Code 07131000-Peas (pisumsativum) includes all Peas i.e. Yellow peas, Green peas, Dun peas, and Kaspa peas, and the effect is not restricted to only "Yellow Peas", but to all items classified under Exim Code 07131000. It is further clarified that in cases where the import shipment of Peas is dated 1-42018 till 24-4-2018, no registration with DGFT is required for shipments with B/L prior to 25th April, 2018 (i.e. 1-4-2018-24-42018), as the Notification No.4 restricting import of peas was issued only on 25-4-2018. 15. I say that the Government considered the representations/applications received from various associations/importers requesting for allowing imports which are backed by part advance payments. Considering the hardship faced by the trade, the Government vide Trade Notice No.19/2018-19 dated 5th July, 2018 decided to allow imports of Peas under Exim Code 0713 1000 against advance payments for that much quantity proportional to the part advance payment made befor....
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.... notification dated 28th August, 2018. The petitioner's goods were shipped on 28th August, 2018 when there was no restriction. The bill of lading is dated 28th August, 2018. Mr.Shah then submits that the Notifications issued in exercise of powers conferred by Section 3 of the Foreign Trade (Development & Regulation) Act, 1992 are subordinate legislations. 22. It is submitted by Mr.Shah that Section 6 of the General Clauses Act, 1897, does not apply to Notifications issued under in this case. Section 3 of the Foreign Trade (Development & Regulation) Act, 1992. The effect of the withdrawal of the Notification dated 29.08.2018, is that there was no restriction on import of peas upto 29.08.2018. Paragraph 1.05(b) of the Foreign Trade Policy deals with transitional provisions. Paragraph 1.05(b) was revised vide Notification dated 25.04.2018. The existing paragraph 1.5(b) permitted import of restricted goods subject to the condition that the shipment of the of export or import is made within the original validity period of an irrevocable commercial letter of credit, established before the date of imposition of such restriction. The condition that the shipment should be covered by irre....
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....018. 28. On the other hand, Mr.Jetly supported the impugned actions. He invites the attention of this court to the affidavit in reply and urges that the writ petition has no merit and must be dismissed. 29. Mr. Jetly submits that the judgment of this court in the case of Taj Agro Commodities Pvt. Ltd. vs. Union of India and Ors., Writ Petition No.1810 of 2018 decided on 3rd July, 2018 considers all the matters and issues and that judgment is binding on the parties. Once that judgment is binding and concludes all issues, then, this writ petition all the more deserves to be dismissed. 30. For properly appreciating the rival contentions, it would be desirable to refer to the notification dated 30th August, 2018. Copy of the same is at Exhibit 'A' and it reads as under:- To be published in the Gazette of India Extraordinary part-II, Section-3,Sub-Section (ii) Government of India Ministry of Commerce & Industry Department of Commerce Udyog Bhawan, New Delhi. Notification No.32/2015-2020 Dated the 30th August, 2018 Subject:- Amendment in the import policy of Peas under Chapter 7 of the ITC (HS) 2017, Schedule-I (Import Policy). S.O.(E) : In exerc....
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....Notification No.04/2015-2020 New Delhi, Dated 25 April, 2018 Subject : Amendment in import policy of Peas under Chapter 7 of the ITC (HS) 2017, Schedule-I (Import Policy) S.O. (E) : In exercise of powers conferred by Section 3 of FT (D & R) Act, 1992, read with paragraph 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, the Central Government hereby amends the import policy of items of Chapter 7 of the ITC (HS) 2017, Schedule-I (Import Policy) as under : Exim Code Item Description Existing Policy Existing policy condition Revised Import Policy Revised Policy condition 0713 1000 Peas (Pisum sativum) Free Restricted Restricted for the period from 01st April to 30th June, 2018 and subject to Policy Condition 4 of this Chapter Policy Condition 4 : During the period from 01st April to 30th June, 2018 total quantity of one lakh MT of yellow peas minus the quantity already imported from 01.04.2018 till date will be allowed against license as per procedure to be notified by DGFT. "Already Imported" will include shipment already arrived from 01.04.2018 till 25.04.2018 and those shipments backed by....
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.... regulation, such export or import will ordinarily be permitted, notwithstanding such restriction or regulation, unless otherwise stipulated. This is subject to the condition that the shipment of export or import is made within the original validity period of an irrevocable commercial letter of credit, established before the date of imposition of such restriction and it shall be restricted to the balance value and quantity available and time period of such irrevocable letter of credit. For operationalising such irrevocable letter of credit, the applicant shall have to register the Letter of Credit with jurisdictional Regional Authority (RA) against computerized receipt, within 15 days of the imposition of any such restriction or regulation. (b) Item wise Import/Export Policy is delineated in the ITC (HS) Schedule I and Schedule II respectively. The importability/ exportability of a particular item is governed by the policy as on the date of import/export. The date of import/export is defined in para 2.17 of HBP, 2015-20. Bill of Lading and Shipping Bill are the key documents for deciding the date of import and export respectively. In case of c....
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....nd in compliance with the directions dated 24th August, 2018 in WP No.21083 & 21084 of 2018 filed by M/s AMRR Maharaja Dhall Mill the Notification No 15 dated 02.07.2018 extending the restriction on import of Peas classified under Exim Code 0713 10 00 (including Yellow peas, Green peas, Dun peas and Kaspa peas) till 30.09.2018, is withdrawn. 2. Effect of this Notification: Notification No 15 dated 02.07.2018 extending the restriction on import of Peas classified under Exim Code 0713 10 00 till 30.09.2018, is withdrawn. (ALOK VARDHAN CHATURVEDI) Director General of Foreign Trade & Ex-Officio Additional Secretary to the Government of India Email: [email protected]" 37. Hence, the argument of Mr.Shah is that the petitioner has imported Green Peas from Canada. Having forwarded all the documents and considering the cumulative impact of the notification, it is evident that the restriction up to 30th September, 2018 issued by the notification dated 2nd July, 2018 was withdrawn and then reinstated by notification dated 30th August, 2018. In other words, there was no restriction on import of peas from 1st July, 2018 to 29th August, 2018. Therefore, all consignments of peas with ....
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....otification in this case, according to the learned senior counsel appearing for the parties, has been issued in exercise of the statutory powers conferred by section 3 of the FTDR Act. Therefore, an amendment to the Notification has to be in like manner. Section 3 of the FTDR Act falls in Chapter II. Sub-section (1) says that the Central Government may, by order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. The Central Government, by sub-section (2) is empowered to make provision for prohibiting, restricting or otherwise regulating in all cases or in specified classes of cases and subject to such exception, if any, as may be made by or under the order, the import or export of goods or services or technology. Sub-section (3) says that all goods to which any order under sub-section (2) applies shall be deemed to be goods, the import or export of which has been prohibited under section 11 of the Customs Act, 1962, and all the provisions of that Act shall have effect accordingly. Then, sub-section (4) says that without prejudice to anything contained in any other law, rule, regulatio....
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....n the original validity period of an irrevocable commercial letter of credit, established before the date of imposition of such restriction and it shall be restricted to the balance value and quantity available and time period of such irrevocable letter of credit. For operatiionalising such irrevocable letter of credit, the applicant shall have to register the Letter of Credit with jurisdictional Regional Authority (RA) against computerized receipt, within 15 days of the imposition of any such restriction or regulation." 36. A perusal of this para would indicate as to how clause (a) provides for continuation of a licence/authorisation, certificate etc bestowing financial or fiscal benefit issued commencement of FTP, 2015-20. Clause (b) says that in case of an export or import that is permitted freely under FTP is subsequently subjected to any restriction or regulation, such export or import will ordinarily be permitted, notwithstanding such restriction or regulation, unless otherwise stipulated. This is subject to the condition that the shipment of export or import is made within the original validity period of an irrevocable commercial letter of credit, established before the d....
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....mport till 30th Sept., 2018 and that has been withdrawn on 29th August, 2018. That does not mean that the notifications prior to this date are completely wiped out for there was a restriction till 30th September, 2018. 2nd July, 2018 is the notification which was prevailing on the date of the import dated 28th August, 2018 and it is only on 29th August, 2018 that the said notification was withdrawn. 47. If Mr.Shah is right in his contentions, then, it would mean that there was no restriction on import of peas till 28th August, 2018. That is incorrect. On the date of shipment of goods on 28th August, 2018, there was indeed a restriction and the restriction has been withdrawn only on 29th August, 2018 (see Exhibit 'I' at page 39). The withdrawal cannot be made effective from a date prior to the date of this Notification No. 31 dated 29th August, 2018. it is clear that this notification was issued in pursuance of an order that was passed by the High Court of Judicature at Madras and the issue that was considered in those matters has been referred by the respondents in their affidavit. They have pointed out that there was a restriction already in place and which was extended by Noti....
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..... A careful perusal of notification Exhibit 'I', which is a copy of the Notification No.31 dated 29th August, 2018 leaves us in no manner of doubt that the subject of this notification is withdrawal of notification No. 15 dated 2nd July, 2018. The effect of this notification is that the restriction which was extended till 30th September, 2018 is withdrawn and at best with effect from 29th August, 2018. It does not mean that this restriction is wiped out for it is evident that by the notification dated 30th August, 2018 bearing No.32, copy of which is at Exhibit 'A', the restriction is again restored and the date till which it was to continue is the same, namely, 30th September, 2018. Had this not been the position, then, the restriction already in place could not have been continued by the further notifications. The withdrawal of the notification dated 2nd July, 2018 will not wipe out the effect of Notification No. 4 dated 25th April, 2018 for that is extended till 30th September, 2018. That notification was in force and that was not withdrawn. It is only the notification of 2nd July, 2018 which is withdrawn albeit for a day. Hence, the restriction was operative and Mr.Jetly is rig....