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Mink Tradecom Pvt. Ltd. Versus Union of India & Others

2017 (10) TMI 96 - DELHI HIGH COURT

N/N. 24/2015-20 and 25/2015-20, both dated 25th August, 2017 - Import of Gold from Seoul, South Korea - restricted item - restrictions put upon the import of Gold by the notifications dated 25th August, 2017 - case of petitioners is that they should be allowed to import Gold without any restrictions brought in by the notifications - Held that: - The Court proceeds on the basis for the purpose of passing this order, that the two impugned notifications were published in the Gazette electronically .....

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t directs that till the next date of hearing, the SCNs issued to the Petitioners shall not be proceeded with by the Respondents. - W. P. (C) 8667/2017 & & C. M. No. 35625/2017 (stay) - Dated:- 26-9-2017 - S. Muralidhar And Prathiba M. Singh, JJ. For the Petitioner : Mr. Tarun Gulati, Advocate with Mr. Kishore Kunal, Mr. Manish Rastogi, Mr. Shashi Mathews, Mr. Prashant Tahiliani, Advocates For the Respondents : Mr.Anurag Ahluwalia, CGSC with Mr.Santosh Kumar Pandey, Advocate for R-1,2,4&5 Mr. .....

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Notification Nos. 24/2015-20 and 25/2015-20, both dated 25th August, 2017. The Petitioner also challenges a Show Cause Notice ( SCN ) dated 8th September 2017 issued to it by the Commissioner of Customs on the basis of an OM dated 6th September, 2017 issued by the Directorate General of Foreign Trade ( DGFT ) by which the Petitioner has been asked to show cause as to why the goods imported should not be confiscated under Section 111 (d) of the Customs Act 1962 ( Act ) since they were imported co .....

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South Korea on 25th August 2017. In terms of para 2.17 of the Foreign Trade Policy, 2015-20 ( FTP ) read with para 9.11 of the Handbook of Procedures ( HoP ), the date of import was the date of shipment/dispatch, which in terms of the said paras would be the Date of relevant airway bill provided this represents date on which goods left last airport in the country from which the import is effected. 4. In terms of the proviso to Section 46 (3) of the Customs Act, 1962 ( Act ), the B/E was present .....

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tegory. In fact, a separate ground is urged by the Petitioners that this placing of the import of gold coins from Seoul, South Korea in restricted category is in the teeth of Article 2.6 of the Comprehensive Economic Partnership Agreement ( CEPA ) entered into on 7th August 2009 between South Korea and India which bars adoption of non tariff measures . 6. Be that as it may, for the purpose of the present interlocutory order which deals with the Petitioner s prayers for provisional release of the .....

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Official Gazette electronically only on 28th August 2017, the Petitioner has placed before the Court an electronic copy of the Gazette, where at the end of the Notification the following endorsement appears: Rakesh Sukul: Digitally signed by Rakesh Sukul Date 2017.08.28 22:47:05+5 30 8. It is therefore, pointed out that both the notifications were in fact published electronically online in the Official Gazette only on 28th August, 2017, which is three days after the date of the said notification .....

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ry of Urban Development, Government of India, it was decided that with effect from 1st October 2015, Gazette Notifications of the Government of India would be published exclusively by the electronic mode and to do away with the physical printing of Gazette Notification. 10. The legal position, as explained in a number of decisions including Harla v. State of Rajasthan 1952 (1) SCR 110 and B K Srinivasan v. State of Karnataka AIR 1987 SC 1059, is that a statutory notification does not become effe .....

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not be confiscated under Section 111 (d) of the Act since it was imported contrary to the restrictions placed on such import by the aforementioned two notifications and further why penalty should not be imposed under Section 112 of the Act. 12. Learned counsel for the Respondents stated that the file containing the two notifications was sent to the Government of India (Press) on 25th August, 2017 for being published on the e-Gazette on that date itself. It is added that the said to notification .....

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gy Act read with OM dated 30th September, 2015 issued by the PSP Division, only on 28th August, 2017 i.e. after the dates of the respective imports of the two consignments from Seoul, in South Korea. 14. In that view of the matter, the Court is satisfied that the Petitioner has made out a prima facie case for grant of interim relief as prayed, for the provisional release of the consignments covered by the B/E presented by the Petitioner to the Customs Authorities in the manner indicated hereafte .....

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