TaxTMI 
TaxTMI 
2025 (12) TMI 1087
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....rt may be pleased to issue a writ of prohibition or appropriate writ, order or direction in nature thereof, prohibiting Respondents from collecting any export duty on export of Rice, without insisting upon compliance of second condition of condition no. 6 of exemption Notification No. 50/2023-Customs dated 25.08.2023, in the circumstances so warranting; and 10.2 Direct return of deposit of Rs. 2,01,28,295/- already made by the Petitioner "under protest" and "without prejudice" with appropriate interest thereon, after holding the Petitioner having satisfied the condition for exemption being condition no. 6 under exemption Notification No. 50/2023-Customs dated 25.08.2023, in the circumstances so warranting; and 10.3 In the alternative, this Hon'ble Court may be pleased to issue a writ of certiorari appropriate writ, order or direction in nature thereof, quashing second condition of condition no. 6 of exemption Notification No. 50/2023-Customs dated 25.08.2023, in the circumstances so warranting, as being wholly arbitrary, unjust, invalid, irrational, capricious as being violative of Article 14, 21 and Article 19(1)(g) of the Constitution of India; and ....
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....nother Notification of even date being Notification No. 50/2023-Customs dated 25.08.2023. By the said Notification, which was issued under Section 25(1) of the Customs Act, 1962, an exemption was immediately granted in respect of very same parboiled rice falling under Chapter Heading 1006 30 10 of the Customs Tariff Act, 1975, subject to condition(s) specified therein. This was done by amending the earlier mother exemption Notification No. 55/2022-Customs dated 31.10.2022 (Annexure P/2). By the aforesaid Notification No. 50/2023-Customs dated 25.08.2023 (Annexure P/3) an entry at SL No. 2B, inter alia, was inserted in the earlier mother exemption Notification No. 55/2022-Customs, prescribing NIL rate of duty subject to the satisfaction of Condition No. 6. This Condition No. 6 was only applicable for a brief period from 25.08.2023 to 15.10.2023 and was thereafter done away with. With effect from 16.10.2023, the aforesaid exemption was made unconditional, as evident from SL No. 2A, which prescribed NIL rate of duty subject to the satisfaction of Condition No. 5. Therefore, except for a brief period from 25.08.2023 to 15.10.2023, no export duty was leviable on export of parboiled rice....
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....The petitioner has complied with first sub-condition of condition no. 6 of the exemption Notification No. 50/2023-Customs, which is the sole condition applicable to Petitioner, in the facts and circumstances of the present case. The second sub-condition of condition No. 6 of exemption Notification No. 50/2023-Customs is not even applicable to the Petitioner and therefore, question of satisfying the same in the facts and circumstances of the present case, does not arise. The petitioner does not export the parboiled rice through backing of irrevocable LoC which being the gist of the said sub-condition, which is only applicable to those exporters, which exports the goods through the backing of irrevocable LoC. It may be worthwhile to mention that trading or export of goods happens both with and without LoC neither of which is compulsory or mandatory in law. In fact, substantial and majority trade including that in rice happens without opening a LoC, including that by the petitioner. It is nowhere required that export of goods whether rice or otherwise must happen only through LoC. It is not the case of the Customs Department (as it could not have been) that it is compulsory and mandat....
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....from relying upon on a technicality and this is a technicality. It is respectfully submitted that the aforesaid decision of Hon'ble Supreme Court applies with all force on the submissions made by the petitioner on the first proposition. 7. Mr. Aggarwal further submits that the matter can be looked at from another angle as well. The second sub-condition of Condition No. 6 of exemption Notification No. 50/2023-Customs only imposes the condition of requiring an irrevocable LoC to be opened before the cut-off date ie. 25.08.2023 which is the date of Notification in question. It can be reasonably inferred that the Notification presupposes that there may be a LoC opened after the cut-off date and accordingly, puts a condition that the same must be opened before the cut-off date. Therefore, where there is no LoC to start with, the very idea of cut-off date is entirely meaningless and out of place. This incidentally, shows that the said second sub-condition was not designed to be applicable to the parties like the present Petitioner. This also shows that the stand of the respondent Department is against the doctrine of narrow interpretation. This also shows that their stand leads to....
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....ise than by way of LoC. Therefore, this is a clear violation of Article 14 of the Constitution of India. The second sub-condition of Condition No. 6 in the aforementioned Notification is also in violation of Article 19(1)(g) of Constitution of India, in as much as it prohibits /restricts the fundamental rights of the Petitioner to carry on any trade or occupation or business, by putting a condition of doing the said trade or business only through the means of LoC. This is a clear infringement of Article 19(1)(g) of Constitution of India, being a condition which is neither reasonable nor in public interest in any manner, whatsoever, when in reality a large and substantial part of trade otherwise happens without the means of a LoC. Therefore, in any event, in the alternative scenario, the aforesaid second condition would be bad in law and required to be set aside qua the petitioner. 9. Mr. Aggarwal, in furtherance of the aforesaid second proposition of law, places his reliance on the decision of Supreme Court in the case of Vinishma Technologies Pvt. Ltd. v. State of Chhattisgarh {2025 SCC OnLine SC 2119}, arising out of the State of Chhattisgarh itself, wherein the Supreme Court ....
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..... Mr. Aggarwal submits that identical issue, as raised in the present Writ Petition is pending before Nagpur Bench of the Hon'ble Bombay High Court in Writ Petition No. 6058 of 2023, wherein Division Bench of Bombay High Court has granted an interim order dated 12.09.2023. Similar issue, as raised in the present Writ Petition is also pending before Hon'ble Gujarat Court in M/s. HRMM Agro Overseas Pvt. Ltd. v. Union of India, {Special Civil Application No. 15113 of 2023}, wherein a Division Bench of Gujarat High Court has also granted an interim order dated 31.08.2023. Since the consignment meant for export is lying in the ICD CONCOR, Raipur, which is located in the State of Chhattisgarh and Respondent No. 2 is also territorially located within the territorial jurisdiction of this Hon'ble Court, this Hon'ble Court has jurisdiction in the matter. 12. Mr. Aggarwal lastly submits that this petition deserves to be allowed on the first proposition of law, canvassed above and failing which on the second proposition of law pleaded in the alternative. 13. On the other hand, Ms. Anmol Sharma and Mr. Anumeh Shrivastava, learned counsel appearing for the respondents No. 1 and 2 s....
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....petitioner. Letters referred by the petitioner were produced to the office after 'Let Export Order' was issued on shipping bills filed by the petitioner and request was made not to insist for payment of duty on export of goods and if the office does not agree, to consider their payment of duty as under protest. Request made by the exporter in the said letters was made through wrong channel and at wrong time. The exporter has to file the shipping bills electronically on self-assessment basis on which they have to declare classification of goods, value of goods whether they are paying duty or taking exemption. In case of petitioner, while filing shipping bill electronically, the petitioner has chosen to export the goods on payment of duty, gets their shipping bill assessed, makes the payment of duty and once the order for let export is made, the petitioner comes up with letter with request to not to insist on payment of duty. If the petitioner had genuinely been interested in making exports under exemptions, they would have chosen that option at the time of filing of shipping bill itself and would have uploaded documents in support of their claim of exemption which they have not. Whe....
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.... on export of parboiled rice under notification No. 49/2023-Customs dated 25.08.2023 and Notification No. 50/2023-Cus dated 25.08.2023. Contention of the petitioner that vide Notification No. 50/2023-Cus dated 25.08.2023, condition No. 6 has been imposed upon them to export the goods under LoC, is culmination of their misunderstanding and ignorance. Nowhere, in the above two notifications, any such condition regarding export of parboiled rice only through LoC has been imposed on any class of exporter. Vide Notification No. 49/2023-Customs dated 25.08.2023, an export duty @ 20% has been imposed on export of parboiled rice with effect from 25.08.2023. However, as per Notification No. 50/2023-Customs, any exporter who has opened LoC prior to 25.08.2023 and their goods have entered port prior to 25.08.2023, they had option to export goods taking exemption from export duty as imposed under notification No. 49/2023-Customs. As the petitioner had no LoC opened, they are not covered for benefit available under Notification No. 50/2023-Customs. Still the petitioner had option to export parboiled rice on payment of duty which they did under shipping bills filed on date 12.09.2023, 15.09.2023....
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.... powers, a resolution is moved in both houses of parliament and the resolution was duly approved in both houses of the parliament. The decision to levy export duty and the decision is a policy decision. It is a well settled principle that policy decisions are beyond the scope of judicial review unless the challenge is made on the ground that the decision is arbitrary or discriminatory. In this context, Mr. Shrivastava places reliance on the judgment of the Hon'ble Supreme Court in Union of India & Others v. VKC Footsteps India Pvt. Limited {2022) 2 SCC 603}. The petitioner has submitted before the Hon'ble Court that he has "indisputably complied with first condition which is the only condition which is applicable to the petitioner" and that "the second condition is not even applicable to the petitioner, and therefore the question of satisfying the same does not arise." According to the petitioner, he does not export the goods through backing of an irrevocable LoC and therefore there is no question of compliance and that it is violative of Article 19 (1) (g) if he has to do business in a particular manner alone. It is well settled that an exemption notification should be int....
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....9; rate of duty with condition No. 5. Therefore, the position which thus emerges is that until 25.08.2023, there was no export duty leviable and w.e.f. 16.10.2023, the export duty was though leviable but completely and unconditionally exempted. In between for the period 25.08.2023 to 15.10.2023 i.e. for a brief period of less than even two months, the export duty was levied, which was also exempted, subject to condition prescribed and applicable. The idea behind non-levy of export duty is to encourage export from India and to earn valuable foreign exchange for the Country. The export duty is levied, briefly due to scarcity in domestic market. However, if the export is otherwise capable being fructified, then the same is exempted from export duty. The petitioner in the present case has already received the entire consideration for the export of the goods. The very purpose of export being realization of export proceeds stands fully fulfilled in the present case, being the purpose of Condition No.(ii) of Condition No. 6 of the exemption Notification, which was not applicable to the petitioner, who does not do export business by LoC. Doing of the business by LoC is only one of the many....
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....39; or 'otherwise regulated'. In the present case, the petitioner is not concerned with any of above but concerned with levy of export duty, which is initially exempted conditionally and thereafter, unconditionally. Therefore, the said contention of the Respondents is not relevant to the instant matter. 20. Lastly, Mr. Aggarwal submits that the petitioner is entitled to consequential relief of refund of export duty already paid under protest and without prejudice to its rights and contentions, with interest thereon. 21. We have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 22. The relevant portion of the Notification dated 25.08.2023 (Annexure P/1) reads as under: "Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 8 of the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act), the Central Government, hereby directs that the second schedule to the Customs Tariff Act shall be amended in the following manner, namely: In the Second Schedule to the Customs Tariff Act, after Sl. No. 6B and the entries relating thereto, the followi....
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....ion disentitles such exporters from the benefit of exemption, despite admitted fulfilment of clause (i) and realisation of export proceeds. 25. At the outset, it requires to be noted that export through LoC is neither compulsory nor statutorily mandated. Export transactions can lawfully be carried out through multiple recognised modes, including open account, documentary collection, advance remittance, wire transfer and cash-upon-delivery. This position is not disputed by the respondents. Therefore, clause (ii) of Condition No. 6 cannot be construed as prescribing a mandatory mode of export, but only as a conditional relaxation applicable to a specific class of exporters. Clause (ii) of Condition No. 6 is clearly predicated on the existence of an irrevocable LoC. The language employed-"goods meant for export shall be backed by irrevocable LoC, wherein the said letter(s) of credit has been opened before the 25th day of August, 2023"-presupposes a factual situation where an LoC exists. Where no LoC exists at all, the question of compliance with such a condition does not arise. The law does not compel an exporter to first create an LoC merely to satisfy a condition meant to regulat....
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....ee Wells v. Minister of Housing and Local Government, (1967) 1 WLR 1000, 1007: (1967) 2 All ER 1041] "Now I know that a public authority cannot be estopped from doing its public duty, but I do think it can be estopped from relying on a technicality and this is a technicality. 23. Francis Bennion in his Statutory Interpretation, (1984 edn.) says at page 683: "Unnecessary technicality: Modern courts seek to cut down technicalities attendant upon a statutory procedure where these cannot be shown to be necessary to the fulfilment of the purposes of the legislation." 28. The respondents' interpretation would also offend the settled maxim lex non cogit ad impossibilia-the law does not compel a person to do what is impossible. An exporter who does not transact through LoC cannot be compelled, retrospectively, to have opened one prior to 25.08.2023. Such an interpretation would render the exemption illusory for a substantial segment of the export community, including those who lawfully conduct trade without LoCs. 29. Further, the interpretation canvassed by the respondents results in an unreasonable and hostile classification between exporters using LoCs and those u....