TMI Blog2019 (3) TMI 1452X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner shall furnish a bank guarantee for the 10% of the invoice value. Upon satisfaction of the aforesaid conditions, the consignments shall be released forthwith - The petitioner has also prayed for waiver of demurrage charges incurred in respect of the detained consignments. In the light of Rule 6(l) of the Handling of Cargo in Customs Areas Regulations, 2009, which provides that the Customs Cargo Provider shall not, subject to any other law for the time being in force, charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be, there shall be a waiver of demurrage charges. Petition disposed off. - W.P. No.6667 of 2019 And W.M.P.No.7491 of 2019 - - - Dated:- 18-3-2019 - Dr. Justice Anita Sumanth For the Petitioner : Mr.G.Ethirajulu For the Respondents : Mr.Pramod kumar Chopda Senior standing counsel ORDER The Writ Petition has been filed by petitioner seeking a Mandamus for the release of consignments falling under Exim Code 0713 6000 imported through ARVEE International Private Limited, Singapore in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relevant Notifications, be made a party to the Writ Petitions. However, since the Writ Petitioners seek only a mandamus and do not challenge the Notifications itself, I do not believe that the DGFT is a necessary party to the proceedings. In fact, these very petitioners before me have challenged Notification dated 25.04.2018 by way of Writ Petitions in W.P .Nos.15921 to 15924 of 2018; Notification dated 02.07.2018 in W.P .Nos.17387 to 17391, 19684 and 18840 of 2018; Notifications dated 05.08.2017, 21.08.2017 and 04.05.2018 in W.P .Nos.21454, 21455 and 26486 of 2018 and Notification dated 28.09.2018 in W.P .Nos.26440 and 26433 of 2018 wherein the DGFT has, rightly, been made a party. 4. The mandamus sought before me is based on the strength of the interim stay granted by this Court and admittedly in force at time when the consignments in question have been imported. The entire batch of Writ Petitions filed challenging Notification Nos.04/2015-20 dated 25.04.2018, 15/2015-2020 dated 02.07.2018, 19/2015-20 dated 05.08.2017, 22/2015-20 dated 21.08.2017, 06/2015-20 dated 04.05.2018 and 37/2015-20 dated 28.09.2018 has been heard by a learned single Judge of this Court and orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Credit (ICLC) and Advance Payment made through Banking Channel before 25.04.2018. Both these categories will be required to be registered with Jurisdictional Regional Authority as per Para 1.05 of Foreign Trade Policy, 2015-20. 9. The second notification bearing No.15/2015-2020 was issued on 02.07.2018 for the period 1st July 2018 to 30th September, 2018 continuing the restriction for the subsequent three months as well. Again, vide Notification bearing No.37/2015-2020 dated 28.09.2018 the restriction was continued for the period 01.10.2018 to 31.12.2018. 10. The Writ Petitioners are concerned with imports effected during the period of Notification dated 28.09.2018, in the case of peas, and pursuant to Notification 04.05.2018, in the case of dhalls. The case of the petitioners is that the transactions of imports had crystallised even prior to the date of the relevant Notifications. The dates of shipment/date of bills of lading in all cases is between the period 01.10.2018 and 31.12.2018. Similar/identical consignments that had been shipped and imported during the period in question have been permitted to be cleared by the customs authorities. However, the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition (SLP) against the order of the Gujarat High Court and instructing all officers within India not to permit clearance of the goods. They also stress upon the fact that it was only by reason of the stay granted by the learned single Judge of this Court that several imported consignments have been permitted to be cleared. To this, learned counsels for the petitioners point out that the Calcutta High Court has accepted the challenge to the Notification in question vide its decision in the case of Sanmarg Pvt. Ltd. Vs. Union of India [2019 (365) E.L.T. 273 (Cal)] and the aforesaid decision have not been challenged by the Revenue. A copy of the aforesaid decision is placed on record. 15. Heard learned counsel. The relevant facts that are admitted before me are: (i) In the case of import of peas, substantially all imports in question are covered by Bills of Lading drawn between the dates of 01.10.2018 and 31.12.2018. There are however, a few instances where the Bills of Lading have been drawn after 01.01.2019 in which event this Order would not be applicable. This order will be applicable, in the case of imports of peas, only in respect of those consignments covered under B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision to ban export of pulses. The aforesaid decision was reported widely in the media. But the notification banning the export was issued only later in exercise of power under section 5 of the Foreign Trade (Development and Regulation Act), 1992, under which the Government prohibited export of various goods for a period of six months from the date of notification. By the time the said notification came to the knowledge of the petitioner, the consignments were under shipment, but were detained upon arrival by the customs authorities, who were of the view that the consignments were prohibited in the light of the notification issued. In the aforesaid circumstances, the Delhi High Court had expressed a view in favour of the customer. The view was affirmed by Supreme Court holding that a vested or accrued right cannot be taken away by reason of a policy. The relevant portions of the judgment are extracted below: 33. The scheme of the Foreign Trade Policy postulates that when the policy provisions are amended which are disadvantageous to the exporters, the modification would not be attracted........... 36. Different stages for the purpose of the said Act would, therefore, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in this regard that Palm Kernel cannot be included under the item palm seeds and the two commodities were different as understood in commerce or trade. We do not want to burden this judgment by citing those authorities which have already been considered for deciding this controversy by the High Court. We do not see any force in the contention of the learned Solicitor General in this regard that the government had only made a clarification vide Notification dated July 27, 1987 by introducing in Appendix 5 Part (b) Item No.5 all other oils/seeds/any other material from which oil can be extracted . It is significant that in the aforesaid notification published in the Gazette of India Extraordinary para (1) Section 121, it was clearly mentioned that the same was issued as an amendment to the earlier Notice No.1-ITC (PN)/85-88 dated April 12, 1985. The notification stated that the following amendment shall be made in the Policy at proper places indicated below and then under the head amendment the new provision which included all other seeds from which oil can be extracted was mentioned. It is therefore evident that the government of India itself, realised the difference in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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