TMI Blog2019 (4) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... ained 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.8891 of 2019 And W.M.P. No.9439 of 2019 - - - Dated:- 28-3-2019 - Dr. Justice Anita Sumanth For the Petitioner : Mr.S.Krishnanandh For the Respondents : Mrs.R.Hemalatha, Standing Counsel ORDER The Writ Petition has been filed by the petitioner seeking a Mandamus for the release of the Pigeon Peas (Cajanus Cajan)/ Toor Dal (Toor Whole) imported by the petitioner under 2 Bills of Entry Nos. 9838331 dated 29.01.2019 and 2305357 dated 06.03.2019, covered under Sales Contract No.IT/AT/106 dated 05.09.2018 in terms of the orders of this Court in W.P. No.27062 of 2018 and WMP. Nos.31485 31488 of 2018 dated 11.10.2018 and further direct the respondents to issue a Detention Certificate for waiver of Demurrage and Container Detention Charges in terms of Regulation 6(1) (I) of Handling of Cargo in Customs Areas Regulations 2009. 2. The identical issue as arising in the Writ Petition has been considered by me vide my order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 #126;20 dated 25.04.2018, 15/2015 #126;2020 dated 02.07.2018, 19/2015 #126;20 dated 05.08.2017, 22/2015 #126;20 dated 21.08.2017, 06/2015 #126;20 dated 04.05.2018 and 37/2015 #126;20 dated 28.09.2018 has been heard by a learned single Judge of this Court and orders have been reserved on 09.01.2019. 5. The facts in relation to all the above Writ Petitions are more or less uniform and the defence put forth by the respondents is also the same in all cases. The petitioners are importers of two kinds of products (i) various varieties of peas such as Yellow Peas, Green Peas, Dun Peas, Kaspa Peas, Pigeon Peas (Cajanus Cajan), and (ii) dhalls, being Toor, Moong and Urad Dhall (Black Matpe) (Beans of the species Vigna mungo (L.) Hepper or Vigna radiata (L.) Wilczek. 6. The petitioners in W.P.Nos. 4721, 4726, 5107, 5079, 5167, 5137, 5088, 5091, 5102, 5098, 5117, 5108, 4826, 4830, 4932, 4990, 4993, 4956, 4961, 4964, 4908, 5323, 5335, 5340, 5344, 5348, 5357, 5359, 5388, 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas, 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 authorities have illegally detained the present consignments in spite of there being a stay of operation of the Notifications in question having been granted by this Court. The petitioners rely on the following judgments of the Supreme Court in support of their arguments. i. Union of India V. Asian Food Industries (2006 (204) ELT 8 (SC)) ii. Priyanka Overseas Private Ltd. And another V. Union of India and others ((1991) SUPP 1 SCC 102) iii. Rajkumar Dey and others V. Tarapada Dey and others ((1987) 4 SCC 398) iv. Gursharan Singh and others V. New Delhi Municipal Committee and others ((1996) 2 SCC 459) 11. The respondents, for their part, draw support from the Policy of the Government to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant 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 31.12.2019. 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 Bills of Lading during the period 01.10.2018 to 31.12.2018. As far as import of consignments of dhalls are concerned, since the notification did not stipulate any time period, this restriction will not apply to the Writ Petitions filed in cases of imports of dhalls. (ii) Some petitioners before me have challenged Notification bearing No.37/2015 #126;2020 dated 28.09.2018 applicable for the period 01.10.2018 to 31.12.2018 by way of Writ Petitions in W.P.Nos.26433, 26440, 26495, 27056, 26464, 26471, 26475, 26479, 27319, 27327, 27336, 27370 of 2018. A learned Single Judge of this Court has stayed the operation of the Notification in question and such order of stay was valid and in subsistence at the time when the imports, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 different. For interpretation of the provisions of the 1992 Act and the policy laid down as also the procedures framed thereunder vis #126;` #126;vis the provisions of the 1962 Act, the rate of custom duty has no relevance. What would be relevant for the said purpose would be actual permission of the proper officer granting clearance and loading of the goods for exportation. As soon as such permission is granted, the procedures laid down for export must be held to have been complied with............. 48. The Delhi High Court, however, in our view correctly opined that the notification dated 4.07.2006 could not have been taken into consideration on the basis of the purported publicity made in the proposed change in the export policy in electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly mentioned that the same was issued as an amendment to the earlier Notice No.1 #126;ITC (PN)/85 #126;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 the two commodities therefore it amended its previous policy. We are therefore of the opinion that prior to July 27, 1987 #45;Palm Kernel was not a canlised item and the High Court rightly held that #45;Palm Kernel #45; was not included with in the entry of #45;palm seed #45;. Since #45;Palm Kernel #45; was not included within #45;palm seed #45; the customs authorities had no legal justification to confiscate or impose redemption fine, or penalty, as the goods had already been shipped on various dated i.e. On June 26, 1987 and July 25, 1987. It is no longer in dispute that if the Palm Kernel was not a canalised item before July 27, 1987 then it could have been imported under the OGL before that date. The crucial dates in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
