TMI Blog2019 (11) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ati, Sr. Adv. with Mr. Kishore Kunal, Mr. Pratush Chodhary and Mr. Kumar, Advs. Respondents Through: Mr. Manik Dogra, SCGC with Mr. Dhruv Pande and Ms. Mallika Hiremath, Advs. Mr. Amit Bansal, SSC with Mr. Aman Rewaria and Ms. Vipasha Msihra, Advs. for R Customs Ms. Suparna Srivastava, CGSC with Mr. Tushar Mathur, Advs. for R-1 to 3 Mr. Amit Bansal, SSC with Mr. Aman Rewaria and Ms. Vipasha Msihra, Advs. for R-Customs Mr. Anurag Ahluwalia, CGSC with Mr. Abhigyan Siddhant, JUDGMENT D.N. PATEL, CHIEF JUSTICE (ORAL) 1. The disputes, in these writ petitions, revolve around Notifications Nos. 24/2015-2020 and 25/2015-2020, dated 25th August, 2017, issued by the Directorate General of Foreign Trade (DGFT), and their applicability to gold coins, imported by the petitioners. 2. For ready reference, the impugned Notifications Nos. 24/2015-2020, dated 25th August, 2017 and 25/2015-2020, dated 25th August, 2017, issued by the DGFT, are reproduced thus: Notification No. 24/2015-20, dated 25th August, 2017: To be published in the Gazette of India Extraordinary Part-II, Section - 3, Sub-Section (ii) Government of India Ministry of Commerce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not be available for import of the above items from the date of restriction. 3. Effect of this Notification: Policy Condition No. 4 restricting imports of gold and silver under Exim Codes 7113, 7114, 7115 and 7118 from South Korea is inserted in Chapter 71 of ITC (HS) 2017. Sd./- (Alok Vardhan Chaturvedi) Director General of Foreign Trade E-mail: dgft@nic.in [Issued from F.No.1/89/180/36/AM-11/PC-2(A)] Facts: 3. The Foreign Trade Policy 2015-2020 (hereinafter referred to as FTP 2015-20 ) was notified by the Central Government, under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as the FT (D R) Act ), on 1st April, 2015. 4. On the same date, the Handbook of Procedures (hereinafter referred to as HBP ), containing the procedure to be followed for implementation of the FTP 2015-20, and issued under para 1.03 thereof, was also notified. 5. Paras 2.17 (a) and 9.11 of the HBP 2015-20 read thus: 2.17 Date of reckoning of Import / Export - (a) Date of reckoning of import is decided with reference to date of shipment / dispatch of goods from supplying country as giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutes as a part thereof), subject to production of a certificate evidencing that the goods have been imported from Korea (also known as a Country of Origin Certificate ). It is undisputed that the imports of gold coins, in all these cases, were accompanied by the requisite Country of Origin (COO) Certificate. 13. On 25th August, 2017, however, the DGFT issued the two notifications, wherewith the petitioners claim to be aggrieved i.e., Notifications Nos. 24/2015-2020 and 25/2015-2020 which would, for the sake of ease of reference, be denoted, hereinafter, as Notification No. 24 and Notification No. 25 respectively. 14. Notification No. 24 amended para 2.07 of the FTP 2015-20. Prior to its amendment, para 2.07 of the FTP read thus: 2.07 Principles of Restrictions DGFT may, through a Notification, impose restrictions on export and import, necessary for: - (a) Protection of public morals; (b) Protection of human, animal or plant life or health; (c) Protection of patents, trademarks and copyrights, and the prevention of deceptive practices; (d) Prevention of use of prison labour; (e) Protection of national treasures of artistic, histo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all Notifications vide which restrictions/ prohibitions have been imposed on import or export of items as in ITC (HS) 2017. 2. Effect of Public Notice: Appendix 2X- Country Specific Restrictions/ Prohibitions on Import/ Export of Items of in Appendices and Aayat Niryat Forms (2015-20) is notified. Sd/- (Alok Vardhan Chaturvedi) Director General of Foreign Trade E-mail: dgft@nic.in 20. This Public Notice, too, has been impugned in these proceedings. Rival stands and analysis thereof 21. We have heard Mr. Tarun Gulati, learned Senior Counsel appearing on behalf of the petitioners, as well as Mr. Manik Dogra, Ms. Suparna Srivastava and Mr. Anurag Ahluwalia, learned CGSC for Respondent No.1 and Mr. Amit Bansal, learned SSC for the Customs authorities, at length. 22. There can be no dispute about the fact that, by combined operation of Notification Nos. 24 and 25, dated 25th August, 2017 and Public Notice No. 20, dated 25th August, 2017, which came into existence, as triplets, on 25th August, 2017, gold coins could not be freely imported, and had to be imported in accordance with country-specific restriction/prohibition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificance. 30. Section 8 of the Information Act, 2000 (hereinafter referred to as the IT Act ) reads thus: 8. Publication of rule, regulation, etc., in Electronic Gazette.- Where any law provides that any rule, regulation, order, bye-law, notification or any other matter shall be published in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette: Provided that where any rule, regulation, order, by-law, notification or any other matter is published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form. 31. In terms of the Section 8 of the IT Act, the following Office Memorandum (OM) was issued by the PSP Division in the Ministry of Urban Development on 30th September, 2015: No. O-17022/1/2015-PSP-I Government of India Ministry of Urban Development (PSP Division) Nirman Bhawan, New Delhi Dated: 30th September, 2015 OFFICE MEMORANDUM Subject: E-publishing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oins cleared immediately, including representations in writing addressed to the respondents, but to no avail. 36. Clearly, the submission, of the petitioners in these writ petitions, that the imports of gold coins effected by them, could not be subjected to the rigour of Notification Nos. 24 and 25, dated 25th August, 2017 or Public Notice No. 20 dated 25th August, 2017, is well merited and commends acceptance. 37. During the pendency of these writ petitions, the petitioners were visited with Show Cause Notices, issued by the Customs authorities, on 8th September, 2017, to show cause as to why the gold coins imported by the petitioners be not confiscated under Section 111 (d) of the Customs Act, 1962 as they had been imported in violation of the restrictions imposed by the impugned Notification Nos. 24 and 25, dated 25th August, 2017, and as to why penalty be not imposed on the petitioners. 38. Taking stock of the aforesaid factual and legal position, this Court had, vide its interim order dated 14th September, 2017, observed that there was, prima facie, merit in the case of the petitioners, and had, therefore, permitted provisional release of the gold coins imported by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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