TMI Blog2021 (4) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... position of such restriction / regulation. Clause (b) however does not apply to the case of an importer / exporter whose commitment is through advance payment which needs to be noted in the present case. From N/N. 18/2015-20 dated 05.08.2017, amendment in the import policy of Pigeon Peas under chapter 7 of the Indian Trade Classifcation (HS) 2017 for the FTP is made specifcally in respect of import of Pigeon Peas whereby the import is changed from free to restricted category. A further condition is incorporated stating that import shall be subject to an annual (fscal year) quota of 2 lakh MT as per the procedure to be notifed. Condition No.2 states that import shall be subject to an annual quota of 2 lakh MT. From this it can be safely inferred that the import under the FTP is for the duration of the FTP and not for the fscal year 2017-2018 - By trade notice No.13/2015-2020 dated 11.08.2017 it was made mandatory for importers having an Irrevocable Letter of Credit opened prior to 05.08.2017 to register with the jurisdictional Regional Authority as per the provisions of paragraph 1.05 of the FTP for permitting their import. This was because as 2 lakh MT of Pigeon Peas had already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present petition, petitioner has prayed for a writ of mandamus to respondent No.2 i.e. the Commissioner of Customs (NS-I) and respondent No.3 i.e. the Assistant Commissioner of Customs, Appraising Group - I IA to allow clearance of 2,650 MTs of Pigeon Peas covered under Bill of Entry Nos. (i) 9029721 dated 02.10.2020, (ii) 9028987 dated 02.10.2020, (iii) 9028862 dated 02.10.2020, (iv) 8845847 dated 17.09.2020, (v) 8843086 dated 17.09.2020, (vi) 8842485 dated 17.09.2020, (vii) 8985829 dated 29.09.2020, (viii) 8987173 dated 29.09.2020, (ix) 8982222 dated 28.09.2020, (x) 8994149 dated 29.09.2020, (xi) 9008104 dated 02.10.2020, (xii) 9029328 dated 02.10.2020, and (xiii) 9029262 dated 02.10.2020 for home consumption (hereinafter referred to as the bills of entry ) which have been held up inspite of having valid registration of Advance Payment Certifcate bearing File No.03/27/008/ 00161/AM18 dated 06.09.2017 and issued on 27.09.2017 by the ofce of the respondent No.5 i.e. the Director General of Foreign Trade (hereinafter referred to as the DGFT ) permitting import of Pigeon Peas under the Foreign Trade Policy 2015-2020 (hereinafter referred to as the FTP ). 3. Before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration of contract and was accordingly issued an Advance Payment Certifcate vide File No.03/27/008/00161/AM18 dated 06.09.2017 i.e. registration certifcate (hereinafter referred to as the RC ) by the DGFT on the basis of advance payment made to its supplier. Initially the RC granted to the petitioner was for import of Pigeon Peas from Sudan; however subsequently by amendment sheet No.01 dated 02.11.2017, petitioner was permitted to import Pigeon Peas from Malawi, Myanmar, Mozambique and Tanzania. 3.5. DGFT issued 5 RCs to the petitioner against the trade notice dated 31.08.2017. Petitioner imported Pigeon Peas against 4 RCs to the extent of 11000 MTs by 2018. Import against the 5th RC in respect of balance 11000 MTs was to be completed between 2018 to 2020. 3.6. In view petitioner's contractual obligations shipment was to reach India between February and March 2020 but due to Covid - 19 pandemic and the resultant lockdown enforced by many countries there was delay and the shipment of Pigeon Peas arrived in the month of September 2020. Initially petitioner fled 3 bills of entry bearing Nos. (i) 8845847 dated 17.09.2020, (ii) 8843086 dated 17.09.2020 and (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being sufered by the petitioner due to non-clearance of the goods and due to its perishable nature. Petitioner also addressed online complaint on 12.11.2020 to the Grievance Redressal Committee of the FTP. 3.11. By letter dated 12.11.2020 respondent No.3 i.e. Assistant Commissioner of Customs, Appraising Group - I IA rejected the petitioner's request for conversion of the 13 bills of entry from home consumption to warehousing. 3.12. Being aggrieved by the non-clearance of the shipment of approximately 2650 MT of Pigeon Peas imported vide RC dated 06.09.2017 under the 13 bills of entry, petitioner has approached this Court by the present petition seeking the relief(s) as indicated above. 4. Mr. Vineet Naik, learned senior counsel appearing on behalf of the petitioner, at the outset has informed that the tenure of the FTP 2015-2020 now stands extended till 31.03.2021 vide notifcation dated 31.03.2020. He submitted that import against 4 RCs was completed by the petitioner in 2018, whereas import against the 5th RC was to be completed between 2018 to 2020; import was thus continuous from the date of issuance of the RCs to the petitioner; RC dated 06.09.2017 issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he alleged addendums as no computerised acknowledgment was issued to the petitioner; notifcation dated 05.08.2017 was specifcally issued to restrict import of Pigeon Peas in order to protect the domestic farmers from unbridled imports; this notifcation imposed restriction on the import of annual quota; notifcation dated 31.08.2017 was issued only to protect the importers who had already entered into contracts with advance payment prior to 05.08.2017 and relaxation was provided beyond the quota but the same was to be completed during the fscal year 2017-18 and could not be extended indefnitely by entering into addendums; thus in the absence of any validity endorsed on the RC issued to the petitioner, the quantity, value and shipment period in the contract as on the date of registration has to be treated as a limiting factor; contention of the petitioner that the FTP permitted import under the RC for the entire duration of FTP is erroneous as trade notice dated 31.08.2017 allowed for registration of contracts as per the terms of the contract as on the date of its registration with the balance value, quantity and shipment period available in the contract as the limiting factor; the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riction for the period until 30.09.2018 as subsequently indicated in notifcation No.15/2015-2020 dated 02.07.2018; absence of validity explicitly on the RC dated 06.09.2017 issued to the petitioner did not entitle the petitioner to claim extension / relaxation beyond the fscal year 2017-18 as it runs contrary to the spirit of the notifcation dated 05.08.2017 read with the two trade notices dated 11.08.2017 and 31.08.2017; reliance was placed on the clarifcation issued by the Deputy Director of General of Foreign Trade vide letter dated 24.12.2020 to the Commissioner of Customs, Nhava Sheva, inter alia, clarifying that in the case of the petitioner, validity of the RC was only for the fscal year 2017-18 as the provision for registering RCs was made with reference to notifcation No.19/2015-2020 dated 05.08.2017 and the date of expiry is the date of lapse of notifcation i.e. 31.03.2018. He therefore prayed for dismissal of the petition on the basis of the above submissions. 6. Mr. Pradeep Jetly, learned senior counsel appearing on behalf of respondent Nos.1 to 3 in his reply, at the outset adopted the submissions made on behalf of respondent Nos.4 to 6 and has drawn our attention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t / addendums is 31.03.2021; RC is a document issued by the Ministry of Commerce and Industry, Government of India and nowhere mentions the validity or expiry date save and except the quantity to be imported; hence unless the entire quantity is imported, the RC remains valid during the tenure of the FTP; the DGFT cannot add something into the RC to contend that the RC is valid only for the frst fscal year of the FTP. 8. Submissions made by the parties have received the due consideration of the Court. Materials on record have been perused. 9. Before we advert to the submissions made by the respective counsel, it would be apposite to consider the relevant provisions of the Foreign Trade Policy 2015-2020 as applicable in the present case. 9.1. Chapter 1 of the Foreign Trade Policy (2015-2020) deals with the legal framework and trade facilitation. The relevant provisions are extracted as under:- 1.00 Legal Basis of Foreign Trade Policy (FTP) The Foreign Trade Policy, 2015-20, (as updated) w.e.f. 05.12.2017 is notifed by Central Government, in exercise of powers conferred under Section 5 of the Foreign Trade (Development Regulation) Act, 1992 (No. 22 of 1992) [F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; or 'otherwise regulated', the import /export already made before the date of such regulation / restriction will not be afected. However the import through High Sea sales will not be covered under this facility. Further, the import / export on or after the date of such regulation / restriction will be allowed for importer / exporter has a commitment through Irrevocable Commercial Letter of Credit (ICLC) before the date of imposition of such restriction / regulation and shall be limited to the balance quantity, value and period available in the ICLC. For operational listing such ICLC, the applicant shall have to register the ICLC with jurisdictional RA against computerized receipt within 15 days of imposition of any such restriction / regulation. Whenever, Government brings out a policy change of a particular item, the change will be applicable prospectively (from the date of Notifcation) unless otherwise provided for. 9.2. From the above it can be seen that paragraph No.1.01 of chapter 1 of the FTP states that the FTP shall come into force with efect from the date of notifcation and shall remain in force upto 31.03.2020, unless otherwise specifed as stated; the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Free except Pigeon Peas (Cajanus Cajan) /Toor Dal which is restricted Import of Pigeon Peas is subject to Policy Condition 2 of this Chapter 0713 90 90 Other Free - Free except Pigeon Peas (Cajanus Cajan) / Toor Dal which is restricted Import of Pigeon Peas is subject to Policy Condition 2 of this Chapter Policy Condition 2: Import shall be subject to an annual (fscal year) quota of 2 lakh MT as per procedure to be notifed. This restriction will not apply to Government's import commitments under any bilateral / regional Agreement / MOU. 2. Efect of this Notifcation: Import Policy of Pigeon Peas (Cajanus Cajan) / Toor Dal under EXIM Codes 0713 60 00, 0713 90 10 and 0713 90 90 is revised from 'free to 'restricted'. sd/- (Alok Vardhan Chaturvedi) Director General of Foreign Trade E-mail : dfgt@nic.in [Issued from File No. M-5012/300/2002-PC 2(A)] 9.4. By the above notifcation amendment in the import policy of Pigeon Peas under chapter 7 of the Indian Trade Classifcation (HS) 2017 for the FTP is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RA's of DGFT 2. All Customs Commissionerate 3. Members of Trade Subject : Implementation of Notifcation No. 19 dated 5.8.2017-reg. Reference is invited to Notifcation No. 19 dated 5.8.2017 amending the import policy of Pigeon Peas (Cajanus Cajan)/Toor Dal under Chapter 7 of the ITC(HS) 2017 and Trade Notice No 13 date 11.8.2017 on the above subject. 2. Trade Notice No.13 dated 11.8.2017 has provided for import [as per para 2.17 and 9.11 of the Handbook of the Procedure (2015-2020)] of Pigeon Peas/Toor Dal for which irrevocable Letters of Credit have been opened prior to 5th August, 2017 and subsequently registered with the jurisdictional F.As. as per provisions of Para 1.05 of the Foreign Trade Policy (2015-20). 3. Subsequently representations have been received indicating that some frms have entered in contracts prior to 5th August, 2017 for import of Pigeon Peas/Toor Dal with either (i) advance payment , (ii) some advance payment and rest amount payable in Cash against Documents (CAD), or (iii) 100% CAD. 4. The matter has been considered and the Director General of Foreign Trade, in exercise of powers under Para 2.58 of the Foreign Trade Policy (2015-20), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifed by the bank were available, such importers were allowed to register with the jurisdictional Regional Authority by 07.09.2017. Petitioner's case is covered by this trade notice as can be seen. 10. In the backdrop of the above provisions the basic facts pertaining to the petitioner's case need to be scrutinized in order to appreciate applicability of the relevant provisions of the FTP and notifcation dated 05.08.2017 read with the two clarifcatory trade notices dated 11.08.2017 and 31.08.2017. Petitioner entered into the contract dated 26.05.2017 with its foreign supplier i.e. Agricom International General Trading LLC for purchase of 22000 MT of Pigeon Peas. Petitioner vide letter dated 05.09.2017 applied for registration of contract for import of the entire quantity of 22000 MT under trade notice dated 31.08.2017. It is seen that the application dated 05.09.2017 was fled along with copy of application submitted online, copies of the fve contracts alongwith addendums, copies of swift messages from bank indicating remittance as per contracts and copy of bank certifcate issued by the bank under the category of advance payment being made prior to 05.08.2017. Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Country of Origin AGRICOM INTERNATIONA L GENERAL TRADING LLIC., 341/A, 3RD FLOOR GHURAIR BUSINESS TOWER, P.O. BOX 118294, ALRIQQA, DEIRA, DUBAI - U.A.E. SUDAN (C) Date of Receipt of Application : 06.09.2017 Date of Issue : 27.10.2017 sd/- (C.V. ARONDEKAR) Foreign Trade Development Ofcer, For Addl. Director General of Foreign Trade. 11.1. Perusal of the RC dated 06.09.2017 shows that there is no validity period or expiry date stated therein. The RC is in respect of the FTP (now extended upto 31.03.2021). The amendment sheet No.1 dated 02.11.2017 alters the country of origin in the RC and adds four more countries in the column of country of origin in the RC. Contention of the respondents that under para 1.05(b) petitioner has not registered with the jurisdictional RA due to change in policy of import of Pigeon Peas from free to restricted category cannot apply to the petitioner's case as the petitioner's contract was based on advance payment to the supplier and not on the basis of ICLC (Irrevocable Commercial Letter of Credit). Hence this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case the RC is binding on the respondents until the completion of the import quota mentioned therein and considering that the petitioner has imported the import item before 31.03.2021, petitioner's import is required to be declared as valid import under the FTP. We may state that petitioner's application for import was specifcally fled under notifcation dated 05.08.2017; only pre-condition prescribed therein being registration of contract if advance payment was made prior to 05.08.2017; petitioner qualifed such pre-condition considering that its contract was registered on 26.05.2017 in respect of the import item and advance payment already made; the subsequent addendums did not vary the principal contract save and except the date of shipment and the country of origin; petitioner having approached the DGFT for seeking change of country of origin and the same having been granted; the addendums were merely for convenience of the parties for actual shipment of the import item and most importantly the addendums were informed to the DGFT; therefore contention of the respondents that the addendums are to be treated as a supplementary contract or fresh contract cannot ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to deal with the above email. Additional afdavit dated 02.03.2021 is also fled by respondent Nos.4 to 6, wherein once again a stoic silence is maintained about the above email issued by the Deputy DGFT and a contrary argument of limiting the import only to the fscal year 2017-18 is advanced. 16. In view of the above discussion it is clearly discernible that petitioner's import of 22000 MTs of Pigeon Peas under the RCs issued to the petitioner is valid upto 31.03.2021 and the case of the respondents that the same is restricted only to the fscal year 2017-18 is clearly untenable. 17. We may add that the respondents are statutory authorities and in the facts of the present case have not functioned responsibly. Petitioner's shipment of Pigeon Peas of 2650 MT had arrived at the port in September 2020. Petition was fled on 25.11.2020. Petitioner had pleaded urgency for hearing. On 08.02.2021, respondent Nos.4 to 6 raised preliminary objection on maintainability by placing internal communication dated 24.12.2020 addressed by the Deputy DGFT to the respondent No.3 issuing clarifcation regarding validity of the FTP 2015-2020. This letter is extracted as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner's case. Though this letter is dated 24.12.2020, it was not placed on record by respondent Nos.4 to 6 in their reply afdavit dated 05.01.2021 and afdavit-in-reply to petitioner's rejoinder afdavit dated 21.01.2021. This letter was tendered in court for the frst time on 08.02.2021 and after hearing the parties the following order was passed by this Court:- Date : 08.02.2021 Mr. Rui Rodrigues, learned counsel for respondent Nos.4, 5 and 6 has raised a preliminary objection as to maintainability of the writ petition qua the said respondents. He has taken us to the pleadings and prayers made in the writ petition to support his contention that no relief has been claimed against respondent Nos.4, 5 and 6. 2. In the course of raising preliminary objection, Mr. Rodrigues has also tendered a document dated 24.12.2020 issued by Deputy Director General of Foreign Trade and addressed to the Commissioner of Customs (Nhava Sheva-I) issuing clarifcations on the letter dated 24.09.2020. 3. Since this document is not on record and may have a bearing on the outcome of the adjudication, we grant liberty to learned counsel for the petitioner to bring it on record by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the import or export policy of an item, which can be imported into the country or exported outside, only after obtaining an Authorization from the ofce of DGFT. 20. Petitioner's import consignment of Pigeon Peas is a perishable commodity. The 2650 MT consignment has been lying at Nhava Sheva port due to suspension of clearance since October 2020. Petitioner has also prayed for reimbursement of costs of ₹ 1,40,00,000.00 with interest incurred by the petitioner on bonding / debonding and withholding charges, though no pleadings and material to that efect has been pleaded or urged during arguments. The only pleading relating to loss / costs incurred by the petitioner is found in paragraph No.37 of the petition which is extracted as under :- The Petitioner states that shipment of approximately 2650 MT of Pigeon Peas imported under the said File No.03/27/008/00161/AM18 dated 06.09.2017 has already arrived at the port and delivery of 8350 MTs of Pigeon Peas has been put on hold in view of Respondent Nos.2 and 3 not permitting clearance of the imported Pigeon Peas. The Petitioner will be saddled with costs for the said stoppage by its seller which is evident from le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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