TaxTMI 
TaxTMI 
2026 (6) TMI 325
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....s covered under Airway Bills dated 30th March, 2026 and 31st March, 2026. 2. The relevant facts leading to the filing of the present petition are as follows: i. The petitioner, M/s Bright Metal Refiners, has its registered office at Babar Road, New Delhi-110001 and is engaged in the business of importing and trading precious metals. ii. The petitioner sought to import Platinum Alloy Jewellery studded with precious stones (Ruby), falling under Tariff Entry 71131925 of the First Schedule to the Customs Tariff Act, 1975. iii. On 30th March, 2026 and 31st March, 2026, Airway Bills were issued by Malaysia Airlines and Cathay Pacific Airlines for export of platinum alloy jewellery studded with precious stone (Ruby) from Bangkok, Thailand to different airports in India. The details of the Airway Bills are as follows: Date Airway Bill No. Issuing Airline Airport in India 30.03.2026 16008312006 Cathay Pacific Airways Mumbai 16008312010 16008312021 16008312032 16008312043 31.03.2026 16008312113 Cathay Pacific Airways Mumbai 16008311936 16008312080 16008312091 16008312102 16008312076 C....
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....om the Office of the Commissioner of Customs (APSC), Mumbai, vide letter dated 16th April, 2026, wherein reference was made to Notification No. 02/2026-27 and it was stated that the goods covered under the Bills of Entry could not be permitted for clearance without a valid import authorization/license. The petitioner was further advised to avail any other permissible remedy as it deems appropriate. ix. The Office of the Commissioner of Customs (APSC), Mumbai, further informed the petitioner that, vide letter dated 15th April, 2026, clarification had been sought from the Central Board of Indirect Taxes and Customs (CBIC), New Delhi, regarding the applicability of the expressions "irrespective of shipment status" and "transitional arrangements", as is mentioned in Notification No. 02/2026-27, in respect of the goods in question. However, till date, no clarification has been issued by CBIC in this regard. x. In these circumstances, the petitioner has approached this Court seeking directions for clearance of the subject goods. 3. Amongst others, the contention of Mr. Prakash Shah, learned Senior Counsel for the petitioner is that a notification comes into force onl....
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....cific Mumbai 16008312091 31.03.2026 01.04.2026 07:31 AM 02.04.2026 01:39 AM Cathay Pacific Mumbai 16008312102 31.03.2026 01.04.2026 07:31 AM 02.04.2026 01:39 AM Cathay Pacific Mumbai 23216933125 31.03.2026 01.04.2026 00:03 AM 01.04.2026 18:30 PM Malaysian Airlines Amritsar 23216933136 31.03.2026 01.04.2026 00:03 AM 01.04.2026 18:30 PM Malaysian Airlines Amritsar 16008312076 31.03.2026 01.04.2026 07:31 AM 01.04.2026 21:11 PM Cathay Pacific Delhi 7. Further, the learned Senior Counsel would urge that paragraphs 2 and 3 of the Notification apply only to goods shipped/dispatched after the imposition of the restriction, as the transitory provisions of paragraph 1.05(b) applies to goods already shipped/dispatched post such restriction. Consequently, the said provisions do not apply to the goods which already arrived in India before imposition of the restriction, as such, goods fall outside the scope of the said Notification. 8. As against above, learned counsel for the respondents would urge that no prayer was made qua the said Notification in the prayer clause....
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....n Indian port or their subsequent clearance. 15. In regard to the contention that there exists an alternative remedy, the petitioner submits that the same is misconceived and the said paragraph does not provide for any effective remedy in law. So also, the fact that when the impugned Notification itself has no application to the petitioner's consignments (the date of import being prior to its coming into force), the question of seeking any authorisation or approaching the Policy Relaxation Committee does not arise. 16. According to the petitioner, it is well settled that rules or regulations, being in the nature of subordinate legislation, if found to be ultra vires, are liable to be disregarded by the Courts when the question of their enforcement arises. The mere absence of a specific relief seeking to strike down or declare such provisions ultra vires cannot preclude the Court from refusing to enforce them. Reliance in this regard has been placed on the judgment of M/s Shree Bhagwati Steel Rolling Mills vs Commnr. Of Central Excise & Anr. (2016) 3 SCC 643. 17. We have heard the learned counsel for the parties. 18. Before we begin to proceed and decide the present peti....
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....nts that have a bearing on the issue. 23. We may begin by noting the decision in Viraj Impex Pvt. Ltd. (supra), wherein the Apex Court held that the legal position has been crystallised that a notification or any other form of subordinate legislation becomes enforceable only when the same is published in the manner reasonably calculated to bring it to the notice of all the persons who may be effected by it. It was observed that the requirement of publication in the gazette is not an empty formality. The relevant portion of the said judgment reads thus:- "16. We have given our thoughtful consideration to the rival submissions and have taken note of the relevant statutory provisions. Law, to bind, must first exist. And to exist, it must be made known in the manner ordained by the legislature. Delegated legislation, unlike plenary legislation enacted by the Parliament, is framed in the executive chambers without open legislative debate. The requirement of publication in the Gazette, therefore, serves a dual constitutional purpose i.e. (a) it ensures accessibility and notice to those governed by the law, and (b) it ensures accountability and solemnity in the exercise of del....
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....it is 'to be published in the Gazette of India'. The acknowledgement is a confession that, until such publication, the Notification had not crossed the threshold from intention to obligation. Once the legislature has prescribed the specified mode of promulgation, the executive cannot introduce an alternative mode and attribute legal consequences to it. A Notification cannot operate in a fragmented manner. In law, it is born only upon publication in the Official Gazette, and it is from that date alone that rights may be curtailed or obligations imposed. To hold otherwise, would permit unpublished delegated legislation to burden citizens, a proposition expressly rejected by this Court in long line of decisions referred to supra." (Emphasis supplied) 24. As regards the point of time at which a notification takes effect after its publication, this issue was examined by the Apex Court in Union of India v. G.S. Chatha Rice Mills 2020 (374) E.L.T. 289 (S.C.), wherein the Court emphasized that the exact date and time of publication assume significance, especially having regard to the manner in which the gazettes are being published, has shifted from analog to digital. T....
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....he next question is whether clause (5) of Article 148 permits the enactment of rules having retrospective operation. It is settled law that unless a statute conferring the power to make rules provides for the making of rules with retrospective operation, the rules made pursuant to that power can have prospective operation only. An exception, however, is the proviso to Article 309. In B.S. Vadera v. Union of India - AIR 1969 SC 118, this Court held that the rules framed under the proviso to Article 309 of the Constitution could have retrospective operation. The conclusion followed from the circumstance that the power conferred under the proviso to Article 309 was intended to fill a hiatus, that is to say, until Parliament or a State Legislature enacted a law on the subject-matter of Article 309. The rules framed under the proviso to Article 309 were transient in character and were to do duty only until legislation was enacted. As interim substitutes for such legislation it was clearly intended that the rules should have the same range of operation as an Act of Parliament or of the State Legislature. The intent was reinforced by the declaration in the proviso to Article 309 that "any....
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....mpt retrospectively. Similarly, Section 14 of the General Clauses Act has no application as it merely provides that where any power is conferred on the Government, then that power can be exercised from time to time as occasion requires. Under that Scheme the status holder is eligible for benefits upon achieving the incremental growth of 25% of the FOB value of exports in the current year over the previous year. It therefore follows that no sooner the status holder achieves 25% incremental growth, the status holder would be entitled to the benefits under the Scheme. Immediately upon attaining the prescribed incremental growth, the status holder becomes eligible to certificate for duty free import and thereby a right vests in the exporter to receive the same." 26. The effect of the decisions in Viraj Impex (supra) and G.S Chatha Rice Mills (supra) was examined by a Division Bench of Gujarat High Court in Enero jewels Pvt Ltd (supra). The effect of the very same notification as in the present petition was before it. The Division Bench held as follows: "15. Hence, in our considered opinion, since the intention of the Notification was to come into force with immedia....