TMI Blog2024 (3) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... s further explained by the Trade Notice No. 23/2023, whereby the DGFT, on receipt of the representations made from the Stakeholders including Customs Authorities clarified with regard to conditions (i), (ii), and (iii) of para 2 of the said Notification as to whether all the three conditions are independent of each other or exporter has to fulfill all the conditions together and for that, the clarification was issued that all the three conditions are independent of each other and export is allowed in case of completion of any one of the conditions of para 2 of the said Notification by the exporter. However, in the facts of the case, none of the conditions is fulfilled by the petitioner, and therefore, even the Notification No. 23/2023 would not be applicable to the facts of the case. The Hon ble Delhi High Court, in the case of VI Exports India Private Limited [ 2024 (1) TMI 647 - DELHI HIGH COURT] , dealt with the similar issue as to the issuance of writ of mandamus to the respondent for permitting the petitioner to export the Non-Basmati White Rice under the said Notification No. 20/2023, dismissed the writ petition. We are in complete agreement with the reasons assigned by the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to the Notification No. 20/2023 dated 20th July 2023 issued by the respondent No. 1 - Directorate General of Foreign Trade (for short, DGFT ), Department of Commerce, Government of India, the Export Policy of Non-Basmati White Rice (semi-milled or wholly milled rice, whether or not polished or glazed: Other) under ITC HS Codes 1006 30 90 came to be amended, whereby the export of the said commodity was put under the prohibited category. [2.2] In view of the said Notification, the petitioner was unable to perform and service numerous purchase contracts executed by it for exporting more than 4232 Metric Tonnes of Non- Basmati White Rice. [3] The petitioner has, therefore, approached this Court with the aforesaid prayers to direct the respondent to permit the petitioner to export the Non-Basmati White Rice, for which the purchase contracts are executed by the petitioner prior to the said Notification. [4] Learned advocate Mr. G. H. Virk for the petitioner submitted that the petitioner has already entered into various purchase contracts and thereby, is duty bound to export the Non-Basmati White Rice and the impugned Notification dated 20th July 2023 prohibits the export of Non-Basma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... honouring their obligations and such impediment is impermissible being in violation of the doctrine of legitimate expectation. [8] Learned advocate Mr. Virk for the petitioner also relied upon the order passed by the Hon ble Bombay High Court in the case of M/s. Bharti Foods, Bhowari vs. Union of India (Writ Petition No. 6539 of 2023 and other allied matters vide order dated 10th November 2023), wherein the Bombay High Court permitted the export of Non-Basmati White Rice that was stored by the petitioners therein at the concerned warehouses prior to 20th July 2023 subject to outcome of the writ petition with a rider that in case the petitioners therein fail in the writ petition, the respondents authorities would be free to take recourse to the provisions under Sections 113(D) and 114 of the Customs Act, 1962. [9] Learned advocate Mr. Virk also referred to and relied upon the decision of this Court in the case of M/s. Maya Agri Impex Pvt Ltd vs. Union of India (R/Special Civil Application No. 16017 of 2023 decided on 27th September 2023). [10] It was further submitted that considering the above decisions and peculiar facts of the case of the petitioner that the petitioner is under o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy, 2023, hereby amends the Export Policy of Non-basmati rice against ITC (HS) code 1006 30 90 of Chapter 10 of Schedule 2 of the ITC (HS) Export Policy, as under: ITC HS Code Description Export Policy Revised Export Policy 1006 30 90 Non-basmati white rice (Semi-milled or wholly milled rice, whether or not polished or glazed: Other) Free Prohibited 2. The Notification will come into immediate effect. The provisions as under Para 1.05 of the Foreign Trade Policy, 2023 regarding transitional arrangement shall not be applicable under this Notification for export of Non-basmati rice. Consignments of Non-basmati rice will be allowed to be exported under following conditions: i. where loading of Non-basmati rice on the ship has commenced before this Notification; ii. where the shipping bill is filed and vessels have already berthed or arrived and anchored in Indian ports and their rotation number has been allocated before this Notification; The approval of loading in such vessels will be issued only after confirmation by the concerned Port Authorities regarding anchoring/berthing of the ship for loading of Non-basmati rice prior to the Notification; iii. Where Non-basmati rice consignme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hipping bills filed by the petitioner nor the petitioner had handed over the consignments to the Customs before the said Notification nor any permission was granted by the Government of India to the other countries to meet their food security needs in the facts of the case. The aforesaid Notification No. 20/2023 dated 20th July 2023 was further explained by the Trade Notice No. 23/2023 dated 18th August 2023, whereby the DGFT, on receipt of the representations made from the Stakeholders including Customs Authorities clarified with regard to conditions (i), (ii), and (iii) of para 2 of the said Notification as to whether all the three conditions are independent of each other or exporter has to fulfill all the conditions together and for that, the clarification was issued that all the three conditions are independent of each other and export is allowed in case of completion of any one of the conditions of para 2 of the said Notification by the exporter. However, in the facts of the case, none of the conditions is fulfilled by the petitioner, and therefore, even the Notification No. 23/2023 would not be applicable to the facts of the case. [16] The Hon ble Delhi High Court, in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shipping bills and had received the vessel call number (VCN) and the customs rotation number but the vessel had not berthed or arrived and anchored in Indian port, and therefore, this condition has also not been satisfied by the Petitioner. The third paragraph states that where Non-basmati rice consignment has been handed over to the Customs before this Notification and is registered in their system / where Non-basmati rice consignment has entered the Customs Station for exportation before this Notification and is registered in the electronic systems of the concerned Custodian of the Customs Station with verifiable evidence of date and time stamping of these commodities having entered the Customs Station prior to 20.07.2023. The period of export shall be upto 31.08.2023 . The third paragraph was amended by the notification dated 29.08.2023. The said amendment specified the time limit on 20.07.2023 by which time the non-basmati rice had to be handed over to the customs stations and registered in the system. The said paragraph also provides that even if the non-basmati rice consignment had not been handed over to the customs station but had entered the customs station for exporta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment is in the best position to decide what is best for the interest of the national economy and Courts cannot dictate or sit in appeal as to how policies are to be framed. Policy making is exclusively within the province of the Government and such matters do not ordinarily attract the power of judicial review. The Government in its wisdom and taking into account the relevant factors has come out with a decision to ban export of Non-basmati rice in the country. The Government has also with its wisdom has carved out certain exemptions. 21. The Notification bearing No. 20/2023 dated 20.07.2023 and the subsequent amendment to the said Notification vide Notification No. 29/2023 dated 29.08.2023 issued by the Government are not under challenge in the instant writ petition. What the Petitioner is actually seeking is a writ of mandamus to compel the Government to breach its own Notification for which a writ of mandamus cannot lie. It is well settled that a writ of mandamus cannot lie to compel the State to act contrary to law. No mandamus can be issued directing the Government not to enforce its own Notification unless and until it is violative of Article 14 of the Constitution of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification i.e. by the plain terms of the exemption. 31. Of course, some of the provisions of an exemption notification may be directory in nature and some are mandatory in nature. A distinction between the provisions of a statute which are of substantive character and were built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in their nature, on the other, must be kept clearly distinguished. In TISCOLtd. [(2005) 4 SCC 272] this Court held that the principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed literally. An eligibility criterion, therefore, deserves a strict construction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fusingly or incorrectly written that an earnest effort at compliance should be accepted. 34. The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the substance or essence of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the essence of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance with those factors which are considered as essential. 25. The Petitioner has not been able to fulfil any of the condition under which it could have exported the rice in its entirety. The ship had not berthed before 20.07.2023. Loading had not started before 20.07.2023. 11,000 MT of rice which is sought to be exported had not entered the customs station for exportation before the issuance of Notification. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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