TMI Blog2019 (5) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - WP. No.9873 of 2019 And WMP. No.10469 of 2019 - - - Dated:- 4-4-2019 - Dr. Justice Anita Sumanth For the Petitioner : Mr.B.Satish Sundar For the Respondents : Mr.Rajkumar Jabak ORDER The Writ Petition has been filed by the petitioner seeking a Mandamus for the release of the BLACK MAPTE, Beans of the species Vigna mungo (L.) Hepper or Vigna radiata (L.) Wilczek Beans of the species Vigna mungo (L.) Hepper or vigna radiata (L.) Wilczek (Urad Dal / Moong Dal imported by the petitioner under 2 Bills of Entry (1) 996475 dated 07.02.2019, and (2) 2016665 dated 11.02.2019, covered under Sales Contract No.#350/2018 dated 27.08.2018 in terms of the orders of this Court in W.P. No.24290 of 2018 and WMP. No.28301 to 28303 of 2018 dated 17.09.2018 and further direct the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 31.12.2019. 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 sti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid 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 different. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned. We agree with the view taken by the 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 governm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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