Gujarat High Court
M/S. Maya Agri Impex Pvt. Ltd vs Union Of India on 27 September, 2023
Author: Biren Vaishnav
Bench: Biren Vaishnav, Bhargav D. Karia
NEUTRAL CITATION
C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16017 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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M/S. MAYA AGRI IMPEX PVT. LTD.
Versus
UNION OF INDIA
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Appearance:
AMAL PARESH DAVE(8961) for the Petitioner(s) No. 1,2,3,4,5
MR PARESH M DAVE(260) for the Petitioner(s) No. 1,2,3,4,5
NOTICE NOT RECD BACK for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
PRIYANK P LODHA(7852) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 27/09/2023
ORAL JUDGMENT
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NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1.Heard learned advocate Mr.Paresh Dave for the petitioners and learned advocate Mr.Priyank P. Lodha for respondent no.2. Though served no one appears for the respondent nos.3 and 4, respondent no.1 is a Union of India, notice is not received back but the respondent no.1 is a formal party.
2.Rule returnable forthwith, learned advocate Mr.Priyank Lodha waives service of notice of rule for the respondent no.2.
3.By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:
"(A) That Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate writ, direction or order directing Respondent No.2 to finally assess 10 shipping bills (listed at Annexure-"B", i.e. B1 to B5) thereby making an order under Section 51 of the Customs Act, permitting clearance and loading of the goods covered under these shipping bills for exportation of 13,500 MTs of Non-Basmati Rice on board vessel M.V. KEN COLON;Page 2 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023
NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined (B) Pending hearing and final disposal of the present Petition. Your Lordships may be pleased to direct the Respondent No.2 and concerned Custom Officers of Kandla Customs subordinate to Respondent No.2, to forthwith allow export of the Petitioners' cargo of 13.500 MTs of Non-Basmati Rise by issuing LEOs on shipping bills (listed at Annexure-"B". i.e. B1 to B5) thereby permitting clearance and loading of the export goods on board vessel M.V. KEN COLON, and to grant Port Clearance (PC) for vessel M.V. KEN COLON to sail from Kandla Port with the Petitioner's cargo of entire 55,000 MTs of Non-Basmati Rice."
4.By this petition the petitioners have challenged the action of the respondent nos.2 and 3 for not permitting the petitioner to export of Non-Basmati Rice from Kandla Port.
5.The petitioners have received orders from one M/s Ranima Commodity FZC of Mozambique for supply of Non-Basmati Rice against advance payment of total quantity of 55,000 metric tons in the month of June and July, 2023.
6.The petitioners brought varying consignments Page 3 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023 NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined of Non-Basmati Rice and stored at warehouses outside the area of Kandla Port as there was no storage facility available within the port premises.
7.It is the case of the petitioners that 46 shipping bills for total quantity of 55,000 metric tons of rice have been submitted to the customs authority through EDI System before 20.07.2023. The respondent no.2 accepted all the shipping bills on the system and acknowledgment numbers were also given.
8.The respondent no.3-Director General Foreign Trade (for short DGFT) by notification vide notification no.20 of 2023 prohibited the export of Non-Basmati Rice with effect from 09.57 p.m. on 20.07.2023 but export of consignments in transit were allowed under the said notification subject to fulfillment of pre-conditions specified in para 2 thereof. Prior to notification issued at 09.57 p.m. on 20.07.2023, export duty at the rate of 20% was imposed on Non-Basmati Rice. The petitioner paid the duty for 36 shipping bills covering quantity of 41,500 metric tons.
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9.The petitioners along with other members of the association of Indian Rice Exporter's Federation made representation before the Ministry as well as DGFT for allowing export of their goods because export cargo though brought at the port and all arrangement for transportation were made, the same were not permitted to be exported as per the notification.
10. The Union Government through the DGFT issued the Trade Notice dated 18.08.2023 clarifying that export of consignments of rice was allowed if anyone and not all the three conditions specified in para no.2 of the notification no.20 of 2023 is satisfied.
11. Another notification no.29 of 2023 was issued on 29.08.2023 by the Government amending the original notification no.20 of 2023 specifying that one more condition/ situation for allowing export of rice for the goods on which export duty was paid prior to 09.57 p.m. on 20.07.2023.
12. As the export duty was paid on 41,500 metric tons of rice covered under 36 out of 46 shipping bills, prior to issuance of Page 5 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023 NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined notification NO.20 of 2023 read with notification no.29 of 2023, the respondent No.2-Custom authority allowed export of the same, however Let Export Orders were not issued for the quantity of 13,500 metric tons for remaining ten shipping bills which were filed before the notification but export duties was paid after the notification was issued.
13. The reason for not allowing the export of remaining 13,500 metric tons of rice is stated by the respondent no.2 that condition no.(ii) of para no.2 of the notification no. 20 of 2023 was not satisfied because the vessel did not arrive at Kandla Port on 20.07.2023.
14. It is the case of the petitioners that the petitioners were supposed to export the cargo of 13,500 metric tons of Non-Basmati Rice through vessel M.V.KEN COLON. Learned advocate Mr.Dave submitted that the vessel M.V.KEN COLON arrived at Kandla Port on 11.07.2023 for discharging cargo of coal which was imported by some other party and took berth and rotation number was allotted to the said vessel by the Port Authority.
Page 6 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined After discharging the cargo of 30,000 metric tons of coal at Kandla Port, the vessel sailed to Bhavnagar for discharging 25,000 metric ton of coal at Bhavnagar Port on 14.07.2023.
15. It was submitted that since the vessel was to return to the Kandla Port for loading cargo of rice of the petitioner, the Kandla Port Authority allotted rotation no.27727 on 18.07.2023 for Kandla Port for loading export cargo of rice. It was submitted that however, the vessel returned to Kandla Port on 26.07.2023 for loading of export cargo of remaining 13,500 metric tons of rice and therefore the respondent no.2-authority did not permit the export of cargo in view of the notification no.20 of 2023 whereby the export of Non-Basmati Rice is prohibited.
16. Learned advocate Mr.Dave therefore submitted that in fact the vessel has arrived on Indian Port on 11.07.2023 and thereafter sailed at Bhavnagar Port on 14.07.2023. It was also pointed out that Voyage Call Number (VCN) was also allotted by the Authority on 18.07.2023 and the Port Authority allotted the rotation number for berth of the vessel Page 7 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023 NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined for loading of the cargo also on 18.07.2023 which was prior to 20.07.2023 and therefore the condition no.2(ii) of the notification no.20 of 2023 is fulfilled and the respondent authority ought to have permitted the export of the remaining 13,500 metric tons of cargo for which the petitioner submitted ten shipping bills prior to 20.07.2023.
17. It was submitted that the petitioners have already received the advance payment for export of the cargo and have also brought the cargo within the premises of Kandla Port and are incurring demurrage of about Rs.6,00,000/- per day for keeping the cargo in warehouse since 20.07.2023.
18. It was therefore submitted that as the petitioners have fulfilled the condition no.2(ii) of the notification no.20 of 2023, the respondent may be directed to permit the petitioners to export the remaining cargo of 13,500 metric tons of Non-Basmati Rice.
19. On the other hand learned advocate Mr.Lodha appearing for the respondent no.2 submitted that as per the custom authority, the vessel did not berth or arrive at the Page 8 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023 NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined Kandla Port prior to 20.07.2023 for the purpose of export of Non-Basmati Rice and therefore there is no fulfillment of condition no.2(ii) of the notification no.20 of 2023. In support of his submissions reliance was placed on the following averments made in the affidavit-in-reply filed on behalf of the respondent no.2.
"(7) The Petitioner has prayed for directing the Respondent Authority to pass order under section 51 of the Customs Act, permitting clearance and loading of goods being 13,500 MT's of Non-Basmati Rice on Board vessel MV KEN COLON.
(8) At the outset it is submitted that in so far as the shipping bills of 13,500 MT's of Non-Basmati Rice are concerned, none of the exceptions provided in the Notification No. 20/2023 dated 20/7/2023 shall apply and consequently because of the Revised Export Policy, the concerned goods are now prohibited for export.
(9) The Petitioner has submitted that that condition (1) of para 2 was satisfied. Condition is of para Page 9 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023 NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined 2 reads as follows:
"Where the shipping bill is filed and vessel have already arrived and anchored in Indian ports and their rotation number has been allocated before this notification. The approval of loading in such vessel will be issued only after confirmation by the concerned Port authorities regarding anchoring/ birthing of the ship for loading Non-basmati rice pnor to the Notification."
(10) As per Port Authonties the vessel arrived on 26th July 2023 for loading of rice in bags whereas condition no.(ii) of Para 2 of Notification No.20/2023 dated 20.07.2023 clearly stipulates that loading in 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. As per the port authorities the vessel berthed on 26.07.2023 for loading export cargo which is later than 20th July 2023, the condition stipulated in DGFT notification no 20/2023 dated 20.07.2023. Copy of the email from the email dated August 1, 2023 from the Port Authority submitting that entry and anchorage of the concerned vessel on the port was on 26/7/2023 Page 10 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023 NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined (Annexure R1). Further, copy of the note marked by the port authority submitting that the concerned vessel entered the port on 26/7/2023 to load goods (Annexure R2).
(11) The Petitioner had filed shipping bills pertaining to 55,000 MTs of Non Basmati Rice and wherever the goods were falling in exception, they have been allowed to be exported, however, where the goods for the purposes of exports do not fall under the exceptions / relaxations provided under the said notification, shipping bills of such goods cannot be allowed to be processed further and such goods are prohibited for exports."
20. Referring to the above submissions, it was submitted that as per the interpretation of the condition no.(ii) of para 2 of the notification prohibiting the export of the Non-Basmati Rice, the petitioners are not eligible for the same and the respondent authorities have therefore rightly not permitted the petitioners to export the Non- Basmati Rice with regard to the remaining 13,500 metric tons.
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21. We have considered the submissions made by the learned advocates for both the sides and we have perused the notification no.20 of 2023 and subsequent notification. It would be germane to refer to para no.2 of the notification no.20 of 2023 which lays down the three conditions and reads as under:
"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:
Page 12 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023 NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined iii. 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.
iv. Export will be allowed on the basis of permission granted by the Government of India to other countries to meet their food security needs and based on the request of their Government."
22. We are concerned with the condition no.
(ii) of para no.2 of the notification which provides that where the shipping bill is filed and the vessels have already berthed or arrived and anchored in Indian ports and their rotation number has been allocated before the notification then the approval of loading in such vessel will be issued after confirmation by the concerned Port Authorities regarding anchoring/ berthing of Page 13 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023 NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined the ship for loading of Non-Basmati Rice prior to the notification, whereas applying this condition to the facts of the case it is not in dispute that the vessel M.V.KEN COLON arrived Land Anchored in Indian Port (Kandla) on 11.07.2023 and it sailed to Bhavnagar Port on 14.07.2023 for unloading of coal and returned to the Kandla Port for loading of the export cargo of the petitioners on 26.07.2023. It is also not in dispute that the VCN Export Number as well as the rotation number was allotted by Port Authority on 18.07.2023. Therefore in our opinion the condition no.(ii) of para 2 of the notification no.20 of 2023 stands fulfilled and the interpretation of the respondent no.2 authority that the vessel ought to have arrived in India for the purpose of export and ought to have berthed prior to 20.07.2023 is not the case as the vessel had arrived in India prior to 20.07.2023 and it has anchored in two Indian Ports namely at Kandla Port on 11.07.2023 and at Bhavnagar Port on 14.07.2023, it is not necessary that the vessel ought to have arrived at Indian Port for export of the cargo coupled with the fact that the Voyage Call Number as well as the rotation number was issued for berthing of Page 14 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023 NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined the said vessel for export of the cargo on 18.07.2023 i.e. prior to issuance of prohibitory Notification No.20 of 2023 dated 20.07.2023.
23. In view of the above facts emerging from the record we are of the opinion that the respondent No.2-authority ought to have permitted the petitioners to export the cargo of the remaining 13,500 metric tons of Non- Basmati Rice with regard to ten shipping bills which were already filed prior to issuance of notification no.20 of 2023 dated 20.07.2023.
24. Learned advocate Mr.Dave at this stage submitted that vessel M.V.KEN COLON has already sailed, therefore the petitioners will have to arrange for another vessel to export the cargo.
25. In view of foregoing reasons, the petition succeeds and is accordingly allowed. The respondent authorities are directed to finally assess ten shipping bills listed at Annexure B by making an order under Section 51 of the Customs Act permitting the clearance and loading of the goods covered Page 15 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023 NEUTRAL CITATION C/SCA/16017/2023 JUDGMENT DATED: 27/09/2023 undefined under these shipping bills for export of 13,500 metric tons of Non-Basmati Rice on board of the vessel which now the petitioners may hire for export of the same. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted for respondent no.2.
(BIREN VAISHNAV, J) (BHARGAV D. KARIA, J) URIL RANA Page 16 of 16 Downloaded on : Fri Sep 29 20:40:01 IST 2023