TMI Blog2021 (1) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... o be granted. Finally, the reasoning that has been adopted in the impugned order is that since 1802 metric tons out of 2499 metric tons had already been imported by the end of February, 2020, there is no justification to not have had imported the remaining portion of the said consignment. The Petitioners, in all these petitions, are registered importers. The outbreak of the pandemic around early 2020 is a matter of fact which cannot be disputed. The period when the outbreak may have taken place in China, as per the Chinese exporter s letter, ought not be doubted in the manner in which the impugned order doubts the same. It is a matter of which judicial notice can be taken. The COVID-19 pandemic originated in China, and hence the adverse effects and problems due to the outbreak could have been much earlier in China, than in India. The Chinese exporter has repeatedly contacted the Petitioners and has expressed its willingness to complete the contract and to supply the product. However, despite repeated letters and reminders requesting an extension by the Petitioners, the Government has not responded to the same, leading to the filing of these writ petitions. A perusal of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the representation of the Petitioners seeking an extension for completing the imports was also rejected. 3. The brief background in these cases is that the Petitioners are importers of poppy seeds . The Petitioners in W.P.(C) 8668/2020, W.P.(C) 8669/2020, W.P.(C) 8670/2020, W.P.(C) 8671/2020 and W.P.(C) 8676/2020 had entered into sales contracts for import of poppy seeds with one M/s Gansu Puankang Pharmaceutical Co. Ltd., - a Chinese exporter. In terms of the contracts, the importers have paid 80% of the consideration in advance in some petitions and 30% advance in some petitions. Some portion of the goods have already been imported. However, the entire quantum is yet to be imported. The details of the sales contracts qua each of the Petitioners is set out in the table below: Writ Petition No. Name of the Company Type of Poppy Seed Registration No. Quantity Advance paid Date of Impugned Order 8670/2020 M/s. Wharton Engineer Developers Pvt. Ltd. White Poppy Seeds 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od, the Chinese exporter also continued to communicate with the Petitioners and repeatedly sought instructions for shipping the consignment. Owing to the complete silence on behalf of the Respondent- Government, the Petitioners had moved writ petitions before this Court which were disposed off vide orders dated 25th September, 28th September, 2020 and 29th September. In the said orders, this Court had directed that the Union of India would give an opportunity of hearing to the Petitioners, and decide their representation in accordance with law. The operative portion of one of the said orders, is set out below: 2. It is the case of the petitioner that the registration granted to the petitioner under the Guidelines dated 25.09.2019 was to expire on 17.03.2020. Due to the outbreak of COVID-19 Pandemic, the exporter in China expressed its inability to make the supplies of the poppy seeds within the time granted. The petitioner accordingly filed an application seeking extension of the time for import with the respondent no. 1. Such representation is stated to be still pending with the respondent no.1. On the other hand, the exporter from China has now issued a communication dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on the judgment of the Supreme Court in Indian Oil Corporation v Shashi Prabha Shukla and Ors., (2018) 12 SCC 85. 7. Mr. Pradeep Jain, ld. Counsel appearing for the Petitioner in W.P.(C) 9625/2020 submits that in this petition, the import was to be done from a foreign supplier of poppy seeds in Turkey, and more than 2/3rd of the consignment amount has already been imported and only 1/3rd is outstanding. The deadline for import of the same was June, 2020. It is also stated that the Petitioner in this case, has also paid the entire amount of consideration to the exporter. 8. On the other hand, Mr. Anil Soni, ld. CGSC, appearing for the Government submits that the Government has considered the representations of the Petitioners. A fair hearing has already been given and the reasoning of the Government does not deserve interference inasmuch as poppy seeds are a regulated commodity, and due to the import of the same being a controlled measure, this would solely be a policy decision of the Government. 9. Mr. Amit Mahajan, ld. CGSC, appearing on behalf of the Respondents submits that there are quotas which are usually fixed for importing of limited quantities of poppy seeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of registration of sales contract of Petitioners therefore it also cannot be said that June to lockdown imposed by Government of India import of poppy seed co1.1ld not take place. The petitioner has pleaded that they have paid substantial amount as an advance to their Chinese supplier. However, it may be seen that as per guidelines issued by Department it was not obligatory for making advance payment for registration of sales contract for import of poppy seeds from China therefore the said arrangement was made by importer and exporter as per their convenience. 4. Further, it appears that there was adequate time available to the petitioner to import the poppy seeds from China even before impact of COVID- 19 Pandemic. It is further mentioned that 1802 MTs of poppy seeds were imported by the various importers by the end of Feb, 2020 out of registered quantity of 2499 MTs of Poppy seeds. Therefore, the reasons attributed by petitioners for non import of poppy seeds within validity period of four months i.e 17.03.2020, are not adequate. It is also not obligatory on the part of Government of India to extend the period of registration of sales contract for import of poppy seeds. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hence the adverse effects and problems due to the outbreak could have been much earlier in China, than in India. The Chinese exporter has repeatedly contacted the Petitioners and has expressed its willingness to complete the contract and to supply the product. However, despite repeated letters and reminders requesting an extension by the Petitioners, the Government has not responded to the same, leading to the filing of these writ petitions. 14. These are the second round of writ petitions which have been filed by the Petitioners. The only reasoning which the impugned order provides is that there is no justification for not having completed the supplies prior to March, 2020. This court is of the opinion that this reasoning is not acceptable, as it seeks to completely ignore the fact that the outbreak had begun earlier in China, as compared to India, and COVID-19 related problems were present in China in February, leading to the non-supply of the said consignments. 15. The sales contracts in these petitions also show that substantial advance amounts have been paid by the Petitioners to the Chinese exporter and the total value of the contracts range between USD 106,250 USD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Supreme Court, this court is of the opinion that the impugned order is not rational or logical, and also completely ignores the harsh realities of the commercial world, especially during the pandemic. 18. The submission of the Respondents relating to limited quotas being available for the import of poppy seeds is devoid of any merit inasmuch as no such argument has been raised in the counter affidavit. Moreover, the quantity sought to be imported is already part of the licensed quantities and not beyond that. This is a case where the authorities have been completely oblivious to the difficulties being faced by the importers in India. 19. Under these circumstances, this Court directs that the Petitioners, in all these petitions, are permitted to import the permitted and licensed quantity of poppy seeds in accordance with the guidelines on or before 31st March, 2021. It is made clear that no further extension shall be granted. 20. The CBN is accordingly directed to validate the registration certificate issued in favour of the Petitioners in order to ensure that the imports can be executed and effected on or before 31st March, 2021. The said extension shall be granted b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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