TaxTMI 
TaxTMI 
2024 (1) TMI 647
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.... Hon'ble Court may deem fit and proper in the interest of justice." 2. The Petitioner, who is an exporter of rice and other agricultural products, received an Order from its overseas buyer M/s Indi Sino Trade Pte Ltd for sale of 40,000 MT of rice which was to be exported from Kandla Port in Gujarat. It is stated that in terms of the said order, the Petitioner purchased 28,000 MT of rice from its various vendors and started the process of packaging of rice and transportation to Kandla. It is stated that the Petitioner, thereafter, requested the Port Authority at Kandla to grant permission to the Petitioner to store the 28,000 MT of rice. However, due to space constraints at the port, the port authorities gave permission to store only 11,000 MT of rice. It is stated that the Petitioner stored about 11,000 MT of rice inside the port and the balance quantity of rice was stored at various private warehouses in Kandla. It is stated that the Petitioner duly filed 28 Shipping Bills for export of 28,000 MT of rice at the customs portal between 10.07.2023 and 12.07.2023. It is stated that out of 28 shipping bills, export duty for 17 shipping bills was paid by the Petitioner. It is stated th....
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....ommodities having entered the Customs Station prior to 20.07.2023. The period of export shall be upto 31.08.2023. iv. Export will be allowed on the basis of permission granted by the Government of India to other countries to meet their food security needs and based on the request of their Government. 3. Export of Organic Non-basmati rice will be governed in accordance with Notification No. 03/2015-2020 dated 19th April, 2017 read with Notification No. 45/2015-2020 dated 29th November, 2022. 4. Effect of this Notification: Export Policy of Non-basmati white rice (Semi-milled or wholly milled rice, whether or not polished or glazed: Other) under HS code 1006 30 90 is amended from 'Free" to "Prohibited"." 3. Para (iii) of the aforesaid Notification was further amended vide Notification No. 29/2023 dated 29.08.2023. Notification dated 29.08.2023 reads as under: " Subject: - Amendment in Export Policy of Non-basmati rice under HS Code 1006 30.90. S.O. (E) The Central Government, in exercise of powers conferred by Section 3 read with section 5 of the Foreign Trade (Development & Regulation) Act, 1992 (No. 22 of 1992), as amended, read with Para 1.02 and 2.01 of the Foreig....
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.... 17,000 MT of rice which is covered under 17 shipping bills and was not permitted to export the remaining 11,000 MT. 6. It is pertinent to mention here, at this juncture, that the vessel in which rice was to be loaded was berthed at the port only on 22.07.2023. However, the rotation number of vessel was obtained on 18.07.2023. 7. Aggrieved by the fact that the Petitioner has not been permitted to export the remaining 11,000 MT of rice, the instant writ petition has been filed by the Petitioner for a direction to the Respondent to permit the Petitioner to export 11,000 MT of Non-basmati rice for which shipping bills had been filed by the Petitioner and the rotation number had also been generated. 8. Notice was issued in the writ petition 04.09.2023. Pleadings are complete. 9. Learned Senior Counsel appearing for the Petitioner contends that the purpose of issuing the Notification dated 20.07.2023 was to ensure that no unplanned exports which were not contemplated prior to the issuance of Notification should be permitted. He states that the genuine exporters cannot be penalised. He states that the exporters were not warned about the Notification which came suddenly on 20.07.2023.....
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....sel for the Petitioner also places reliance upon certain other Judgments which have followed the aforesaid Judgment dated 12.10.2022 passed by the High Court of Andhra Pradesh. 11. Learned Senior Counsel for the Petitioner places reliance on the judgment dated 27.09.2023, passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No. 16017/2023, titled as M/s Maya Agri Impex Pvt. Ltd. v. Union of India, wherein the High Court of Gujarat has permitted export in a case where the Petitioner therein had to export his goods from Kandla but the vessel instead of reaching Kandla had reached Bhavnagar. Learned Senior Counsel for the Petitioner, therefore, contends that even though all the conditions had not been satisfied, yet the High Court of Gujarat had permitted the clearance and unloading of the goods by directing the clearance of the loading of the goods covered under various shipping bills. He contends that even in the present case, the vessel had arrived within the territorial waters of India prior to the date on which notification bearing No. 20/2023 came into force but could not be anchored because of lack of permission from the port authorities. 12. Learned ....
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.... since none of the conditions have been satisfied by the Petitioner, the decision of the Respondent to permit the Petitioner to export only 17,000 MT of rice for which export duty was paid and exclude 11,000 MT of rice which had not been entered into the customs station for exportation and were not registered in the electronic systems of the concerned Custodian of the Customs Station and for which no export duty was paid before the appointed time and date i.e., before 21:57:01 hours on 20.07.2023 does not require any interference. 15. Heard learned Counsel appearing for the Parties and perused the material on record. 16. A perusal of the Notification bearing No. 20/2023 dated 20.07.2023 and the subsequent amendment to the said Notification vide Notification No. 29/2023 dated 29.08.2023 indicates that there are five conditions which are to be fulfilled to get exemption for exporting "Non-basmati white rice (semi-milled or wholly milled rice, whether or not polished or glazed: other)" which has been prohibited by the Government by the issuing the said Notifications. The Government by the said Notifications decided to prohibit completely the export of Non-basmati rice primarily in v....
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.... also provides that even if the non-basmati rice consignment had not been handed over to the customs station but had entered the customs station for exportation and registered with the system of the concerned Custodian of the customs station with verified date and time of stamping had been entered into the customs station prior to 21:57:01 hours on 20.07.2023, the consignment was exempted from the notification and could be exported if export duty has been paid. One more exemption was added under which if export duty had been paid before 21:57:01 hours on 20.07.2023, then the exporter could export the non-basmati rice. The last paragraph is not applicable in the present case because no permission has been granted by the Government of India for export to the country to which rice was to be exported to meet its food security needs. 18. A perusal of the third paragraph after amendment indicates that either the consignment of non-basmati rice should have been handed over to the Customs before 21:57:01 hours on 20.07.2023 and the consignment of Non-basmati rice handed over to the customs has been registered in Customs system OR the non-basmati rice consignment has been entered the Custo....
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.... mandamus can be issued directing the Government not to enforce its own Notification unless and until it is violative of Article 14 of the Constitution of India. 22. The Apex Court in State of West Bengal vs. Subhas Kumar Chatterjee, (2010) 11 SCC 694 has categorically held that no mandamus lies for issuing directions to a Government to refrain from enforcing a provision of law and no court can issue mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate law and such directions may result in destruction of rule of law. 23. It is also well settled that exemptions in Notifications have to be construed strictly. [Refer: Commr. of Customs (Imports) v. Tullow India Operations Ltd., (2005) 13 SCC 789, A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala, (2007) 2 SCC 725, Collector of Customs (Preventive) v. Malwa Industries Ltd., (2009) 12 SCC 735 and CCE v. Parle Exports (P) Ltd., (1989) 1 SCC 345)] 24. The Apex Court in CCE v. Hari Chand Shri Gopal, (2011) 1 SCC 236 has held as under: "Exemption clause - Strict construction 29. The law is well settled that a person who claims exemption or concession has ....
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....e, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed literally. An eligibility criteria, therefore, deserves a strict construction, although construction of a condition thereof may be given a liberal meaning if the same is directory in nature. 32. The doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably be expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the "essence" or the "substance" of the requirements. Like the concept of "reasonableness", the acceptance or otherwise of a plea of "substantial compliance" depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to achieve the object and purpose of the rule or the regulation. Such a defence cannot be pleaded if a clear statutory prerequisite which effectuates the object and the purpose of the statute has not been met. Certainly, it means that the Court should determine whether the statute has been followed sufficiently so as t....
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....fore 20.07.2023. Loading had not started before 20.07.2023. 11,000 MT of rice which is sought to be exported had not entered the customs station for exportation before the issuance of Notification. The Petitioner has not filed any verifiable evidence of date and time of stamping of these 11,000 MT of rice having entered the Customs station prior to 20.07.2023. The Petitioner only has valid shipping bills, vessel call number (VCN) and the customs rotation number. Though the Petitioner states that but for the Notification they would have been able to pay the export duty for the remaining of 11,000 MT of rice and that this circumstance cannot be taken against Petitioner because the Petitioner has already paid the export duty for 17,000 MT of rice and therefore, nothing prevented the Petitioner to pay the balance of export duty for 11,000 MT of rice as well, before the said notification No. 20/2023 came into force, and this argument cannot be accepted because directing the Respondent to relax the condition in this case would amount to forcing the Government to breach its own Notification which this Court cannot to do so by way of the present writ petition. 26. The doctrine of substant....