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2019 (1) TMI 784 - HC - CustomsEffect of Notification No.38/2015-2020 - effective date of notification - retrospective or prospective effect of notification - import of freely importable items, which was later on restricted by the impugned notification - various items including mild steel varieties like Hot Rolled Coils, Cold Rolled Coils, Hot Rolled Steel Plates, Pre Painted Steel Coils etc. - Contention of the petitioners is that as per the mandate of Section 3 of the Foreign Trade (Development and Regulation) Act, 1992, the Notification would be effective from the date of publication in the Gazette of India and not from the date when public notice or trade notice was issued. Held that:- The Notification No.38/2015-2020 though made public by way of trade notice on 5th February, 2016 fixing MIP against 173 HS Codes under Chapter-72 of the ITC (HS)-2012, Schedule-I (Import Policy) would be effective and applicable from 11th February, 2016. However, this does not imply that the writ petitions would succeed and have to be allowed for the ‘imports’ into India were made on or after 11th February, 2016, i.e., the date on which the Notification has been published in the Official Gazette. Notification is not being given retrospective effect to make it effective to ‘imports’ made from a date prior to publication in the Official Gazette. Notification was effective from the date when it was published in the Official Gazette and accordingly would apply to ‘imports’ made on or after 11th February, 2016. Notification No.38/2015-2020 dated 5th February, 2016 published in the Official Gazette on 11th February, 2016 was in force on the date of ‘import’ of goods by the petitioners as the ‘import’ was post publication in the Official Gazette on 11th February, 2016. We would not be giving retrospective effect to Notification No.38/2015-2020, when we hold that it would apply to all ‘import’ on or after 11th February, 2016 - The argument that the respondents have given retrospective effect to the Notification No.38/2015-2020, which can be only prospective, falters and is rejected. Notification No.38/2015-2020 even if it was published in the Official Gazette on 11th February, 2016 had specific exemption in restricting the same to import/shipments under LoCs opened prior to the date of Notification, i.e., 5th February, 2016. Paragraph 2 of the Notification No.38/2015-2020 refers to the ‘date of the Notification’ and not the date on which it was published in the Official Gazette - In the present case, the LoCs were opened between 5th February, 2016 till 11th February, 2016, when the Notification No. 38/20152020 was uploaded on the web-site of the Respondents on 5th Februray,2016 and was published in the Official Gazette on 11th February, 2016. No doubt, paragraph 2 refers to paragraph 1.05 of the Foreign Trade Policy 2015-2020, but in the context that the importers would comply with the conditions stated therein, i.e., the condition for registration. Conditions regarding opening of LOCs before 5th February, 2016 would over-ride and prevail over paragraph 1.05(b) of the Foreign Trade Policy 2015-2020, as provided and stated in the clause itself. Expression “unless otherwise stipulated” in paragraph 1.05(b) would apply as paragraph 2 of the Notification No.38/2015-2020 stipulates to the contrary. The factual position in the present writ petitions is identical in facts in the case of M/s Agri Trade India Services (P) Ltd. [2006 (8) TMI 370 - DELHI HIGH COURT] decided by the Supreme Court in M/s Asian Food Industries [2006 (11) TMI 10 - SUPREME COURT OF INDIA], in favour of the Revenue. Petition dismissed - decided against petitioner.
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