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2024 (3) TMI 196
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....signments earmarked as Shipping Bill Nos. 2363518, 2363521, 2494419, 2349651, 2454059, 2466653, 2452229, 2480893 and 2486332, by the Indian Customs EDI system; at Annex.-F. B. Pending the adjudication, hearing and final disposal of the captioned petition, direct the respondent to permit the petitioner to export / ship an aggregate quantity of 4232 MT of Non-Basmati White Rice (equalling to 161 nons. of 20 Feet Containers) already procured by the petitioner prior to the implementation of the Notification dated 20.07.2023 by the Directorate General of Foreign Trade at Annex.-B more particularly the consignments earmarked as Shipping Bill Nos. 2363518, 2363521, 2494419, 2349651, 2454059, 2466653, 2452229, 2480893 and 2486332, by the Indian Customs EDI system at Annex.-F. C. Issue ex-parte, ad interim relief in terms of prayer clause 38(B), above; D. Grant any such other and/or further relief(s) that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." [2] The brief facts of the case are that the petitioner is a company incorporated under the Companies Act, 2013 and is engaged in the business of export of various agricult....
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....oner at Gandhidham - Kachchh, Gujarat. [5] It was further submitted that the entire quantity of commodity sought to be exported by the petitioner is approximately 1.94% of the entire quantity already permitted by the respondent for export post implementation of the Notification dated 20th July 2023 i.e. approximately 2,18,000 Metric Tonnes, and thereby, the petitioner is required to be permitted to export 4232 Metric Tonnes of the said commodity. [6] It was further submitted that the conduct of the respondent defeats the purpose and object behind the implementation of the Notification since procuring additional quantity of commodity from the open market, the respondent is further creating scarcity and causing increase in the price of the commodity in the open market. [7] In support of his submissions, reliance was placed on the order dated 29th November 2023 passed by the Hon'ble Andhra Pradesh High Court in IA No. 2 of 2023 in Writ Petition No. 25933 of 2023, wherein the similar circumstances, the Hon'ble Andhra Pradesh High Court, after relying upon the orders passed in Writ Petitions Nos. 32049 of 2022 and other similar matters, permitted the writ applicant to export th....
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....sion of the Hon'ble Delhi High Court in the case of VI Exports India Private Limited vs. Union of India (Writ Petition (C) No. 11649 of 2023 decided on 9th January 2024), wherein in the similar facts, the Hon'ble Delhi High Court dismissed the writ petition relying upon the decisions of the Hon'ble Apex Court in the case of State of West Bengal vs. Subhas Kumar Chatterjee (2010) 11 SCC 694 and in the case of CCE vs. Hari Chand Shri Gopal (2011) 1 SCC 236. It was further pointed out that the Hon'ble Delhi High Court has also considered the decisions of the Hon'ble Andhra Pradesh High Court as well as of this Court. [13] Having heard the learned advocates for the respective parties and after considering the material on record, it would be germane to refer to the Notification No. 20/2023 dated 20th July 2023 along with exceptions, whereby the export of the Non-Basmati White Rice is prohibited by the DGFT, which reads as under: "Government of India Department of Commerce Directorate General of Foreign Trade Vanijya Bhawan, New Delhi Notification No. 20/2023 New Delhi, Dated 20th July 2023. Subject : - Amendment in Export Policy of Non-Basmati rice under HS Code ....
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.... 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". Sd/- (Santosh Kumar Sarangi) Director General of Foreign Trade Ex-Officio Additional Secretary, Government of India Email: [email protected] (Issued from F. No. 01/91/171/010/AM23EC/e-33294)" [14] On perusal of the aforesaid Notification, it appears that ITC HS Codes 1006 30 90, which pertains to Non-Basmati White Rice (Semi-milled or wholly milled rice, whether or not polished or glazed: other) was free commodity prior to issuance of the Notification as per the Export Policy and the Central Government, in exercise of powers conferred by Section 3 read with Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, as amended read with Para 1.02 and 2.01 of the Foreign Trade Policy, 2023, amended the Export Policy and notified the said ITC HS Code from "free" to "prohibited" category with effect from 21:57:01 hours on 20th July 2023. The said Notification, however, provides for export of the Non-Basmati W....
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....e 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 view of the rising price of the same in the market as huge quantity of rice was being exported from the country which had led to scarcity of non-basmati rice in the country and a consequent increase in prices for the same. 17. Notification No. 20/2023 dated 20.07.2023 states that the decision of ban on export of Non-basmati rice will come into immediate effect. However, the said Notification has allowed the export of consignments of Non-basmati rice subject to the conditions as mentioned in the Notification. The first paragraph of the said Notification states that "where loading of Non-basmati rice on the ship has commenced before this Notification". This condition has not been satisfied by the Petitioner for the reason that the ship had not berthed in Kandla Port before the issuance of Notification. The second paragraph under which consignment could be permitted to be exported consists of sev....
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....sal 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 Customs Station for exportation before 21:57:01 hours on 20.07.2023 and is registered in the electronic systems of the concerned Custodian of the Customs Station with verifiable evidence of date and time stamping of these commodities having entered the Customs Station prior to 21:57:01 hours on 20.07.2023. A perusal of the facts of the present case does not indicate that the consignment of Non-basmati rice for remaining 11,000 MT rice was handed over to the customs before 21:57:01 hours on 20.07.2023 and was registered in Customs system or the Non-basmati rice consignment had entered the Customs Station for exportation before the appointed time and has been registered in the electronic systems of the concerned Custodian of the Customs Station with verifiable evidence of date and time stamping of these commodities having entered the Customs Stati....
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....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 to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the noncompliance of which would not affect the essence or substance of the notification granting exemption. 30. In Novopa....
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....nd 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 to carry out the intent for which the statute was enacted and not a mirror image type of strict compliance. Substantial compliance means "actual compliance in respect to the substance essential to every reasonable objective of the statute" and the Court should determine whether the statute has been followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed. 33. A fiscal statute generally seeks to preserve the need to comply strictly with regulatory requirements that are important, especially when a party seeks the benefits of an exemption clause that are important. Substantial compliance with an enactment is insisted, where mandatory and directory requirements ....
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....uty 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 substantial compliance and intended use would not come in aid of the Petitioner because the purport of the Notification is to immediately put a ban on the export of Non-basmati rice, and therefore, the argument raised by the Petitioner that the Petitioner has substantially complied with the Notification and it has shipping bills, vessel call number (VCN) and the customs rotation number which shows the intention of the Petitioner to export rice would not come to its aid. The purpose of the Notification was to immediately put ban on the export of Non-basmati rice in order to meet the internal needs of the country in future. In this light, this Court is not inclined to invoke the principle of substantial compliance and in....