Delhi High Court
M/S Bhole Baba Dairy Industries Ltd. vs Union Of India And Ors. on 5 July, 2011
Author: Manmohan Singh
Bench: Manmohan Singh, Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 5th July, 2011
C.M. No. 8010/2011 in WP(C) 3839/2011
M/S BHOLE BABA DAIRY INDUSTRIES LTD. ..... Petitioner
Through : Mr. Maninder Singh, Sr. Adv.
with Mr. J.S. Bakshi and Mr.
Amitesh Singh, Advs.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through : Mr. Nitish Gupta and
Mr. Ravinder Aggarwal, CGSC
for respondent No.1 and 2
Mr. Mukesh Anand and
Mr. Shailesh Tiwari, Advs. for
respondent No.3
CORAM:-
HON'BLE MR JUSTICE MANMOHAN SINGH
HON'BLE MR JUSTICE SURESH KAIT
1. Whether Reporters of local papers may be allowed to
see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
MANMOHAN SINGH, J
1. The petitioner has filed the present writ petition under
Article 226 and 227 of the Constitution of India thereby amongst
others challenging the Notification No. 23 (RE-2010)/2009-2014
dated 18.02.2010(ANN-P-I), Notification No. 25 (RE-2010)/2009-
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 1 of 23
2014 dated 24.02.2011 (ANN-P-II), Notification No. 37 E (RE-
2010)/2009-2014 dated 24.03.2011 (ANN-P-III) and sought other
reliefs.
2. The matter was listed first time before the court on
31.05.2011 when notice was issued. On oral request the prayer to
implead the Custom Authority was allowed. The matter was
adjourned to 17.06.2011 before the Vacation Division Bench. When
the matter was listed on 17.06.2011, time was granted to file the reply
to the Custom Authority who is the main contesting party.
3. Learned counsel appearing on behalf of the petitioner has
made a statement before us that at this stage the petitioner is only
pressing the following relief made in CM. No. 8010/2011 which is
listed for disposal:
To permit the petitioner to export 135 MT of casein
lying at ICD Tuglkabad, New Delhi and 70 MT of casein
lying in the godowns of the petitioner. Further the
petitioner be permitted to fulfill their total pending
export orders of 560 MT of Casein as enumerated in
ANN-P-XII.
4. Both the parties were heard in the interim application
and orders were reserved on 27.06.2010.
5. The brief facts of the case relevant for the disposal of the
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 2 of 23
present writ petition are that the petitioner is a manufacturer of dairy
products having factory at Agra-Aligarh By-pass Road, Khaireshwar
Dham (U.P.) which is duly registered with the Central Excise
Division-Aligarh (Lucknow Commissionrate) under Registration No.
AACCB2221MXM001.
6. The petitioner is eligible for opting clearance of goods
for export and examination thereof at the factory itself in terms of
CBEC‟s Circular No. 60/2001-Cus dated 01.11.2001, being a Central
Excise registered manufacturer. It is the admitted position that the
petitioner had time to time applied and obtained the permission for
factory stuffing under Excise provision in terms of the aforesaid
Circular.
7. The petitioner had time bound export contractual
obligations of 560 MT of casein prior to 18.02.2011, the details of the
order in respect of the same are:
(i) P.O. No.0004916 dated 21.01.2011 quantity
153MT.
(ii) P.O. No.0004930 dated 07.02.2011 quantity
102MT.
(iii) P.O. No.11563 dated 25.01.2011 quantity 51
MT.
(iv) P.O. No.11566 dated 14.02.2011 quantity 102
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 3 of 23
MT.
(v) P.O. No.0004920 dated 24.01.2011 quantity
102MT.
(vi) P.O. No.LE 110046 dated 02.02.2011 quantity
50MT.
8. Consignment of 135 MT of casein was made ready for
export to the importers. The petitioner filed four shipping bills and
sought factory stuffing permission in respect of the same. In terms of
the factory stuffing permission the petitioner requisitioned seven
containers for stuffing of the consignments for exports at the
petitoner‟s permission and thereafter applied to the jurisdictional
Central Excise Officers for examination of the goods, stuffing thereof
in the containers, seeking of the containers and endorsement of the
ARE-1‟s.
9. The excise officers examined the goods under four
shipping bills (in seven containers) on 16.02.2011, 16.02.2011,
16.02.2011 and 18.02.2011 and thereafter the same were removed
from the factory on the same very date and they were handed over at
ICD Tuglakabad on 17.02.2011 (at 06:07 am and 06:06 am in two
containers); 18.02.2011 (at 04.26 am and 04.26 am in two
containers); 17.02.2011 (at 07:23 am and 11:49 am in two
containers);19.02.2011 (at 2.47 am in one container). A chart
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 4 of 23
depicting the said movement of goods is already filed.
10. In the meanwhile, three notifications were isued by
respondent No.2 i.e. Notification No.23(RE-2010)/2009-2014 dated
18.02.2011, Notification No.25 (RE-2010/2009-2014) dated
24.02.2011, Notification No.37 E(RE-2010)/2009-2014 dated
24.03.2011 issued by the respondent No.2 purportedly in the exercise
of the powers conferred by the Section 5 of the Foreign Trade
(Development & Regulation) Act, 1992 whereby Director General of
Foreign Trade has prohibited the export of inter alia various milk and
milk products, including „casein‟ and „casein products‟, which the
petitioner was exporting.
11. The containers of the goods arrived at ICD Tughlakabad
on various dates and the petitioner thereafter presented the Shipping
Bills to the adjudicating authority for formal „Let Export Order‟,
however, the adjudicating authority disallowed the exports on the
reason that the goods that the goods were presented for examination
before the Custom Officer on 21.02.2011. Therefore, it cannot be
permitted in terms of the said notification. Thereafter the petitioner
filed the appeal in the office of Commissioner of Customs (Appeals)
bearing No. CCA/ICD/207/2011.
12. After hearing the parties on 27.04.2011, the said appeal
was allowed and the impugned order disallowing the export of the in
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 5 of 23
goods was set aside. The Commissioner of Customs (Appeals) came
to the conclusion that the said order was not legal in view of the
notification No. 31/1997-Cus(NT) dated 07.07.1997 wherein it is
mentioned that all Supreintendents and Inspectors of Central Excise
Department in any place of India have been appointed as Officers of
Customs and therefoere presentation of goods for examination before
the jurisdictional Central Excise Officers for export is nothing but
presentation of goods for Customs examination for export in terms of
Para 9.12 of the Foreign Trade Policy and the stipulatinos of
Notification 37 (RE-2010)/2009-2014 dated 24.03.2011. As the
goods were presented for examination before the said officers prior to
18.02.2011 the exports are not hit by the probhibition imposed under
the Notification 23(RE-2010)/2009-2014 dated 18.02.2011 as the
same are covered under transitional provision of the said notification.
13. The operating part of order of Commissioner (Appeals)
dated 27.04.2011 reads as under:-
"I find that in terms of Para 9.12 of the
Handbook of procedures 2009-14, in
change of policy provisions, the same shall
not be applicable to the consignment
already handed over to Customs for
examination and subsequent exports upto
public Notice/Notification date. The
relevant provisions are as below:
"However, wherever procedural
/policy provisions have been modified
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 6 of 23
to disadvantage of exporters, same shall
not be applicable to consignment already
handed over to Customs for examination
and subsequent exports upto Public
Notice/Notification date.
Similarly, in such cases where goods
are handed over to the customs
authorities before expiry of export
obligation period but actual Exports take
place after the expiry of the export
obligation period, such exports shall be
considered within export obligation period
and taken towards fulfillment of export
obligation."
I find that export goods can be stuffed
in containers at the Port of Export as well
as at the factory premises of a
manufacturer. The Appellant being a
registered unit under the Central Excise
registered with Registration No.
AACCB2221 MXM001 was permitted
factory stuffing in terms of CBEC's circular
No.60/2001 dated 01.11.2001. I also find
that in terms of Notification 31/1997-
Cus(NT) dated 07.07.1997 all
Superintendents and Inspectors of Central
Excise Department in any place of India
have been appointed as Officers of Customs
and therefore presentation of goods for
examination for export in terms of para 9.12
of the Foreign Trade policy and the
stipulations of Notification No.37 E(RE-
2010)/2009-2014 dated 24.03.2011(ANN-P-
III). As the goods were presented for
examination before the said officers prior to
18.02.2011, the exports are not hit by the
prohibition imposed under Notification
No.23 (RE-2010)/2009-2014 dated
18.02.2010 (ANN-P-I) as the same are
covered under transitional provision of the
said notification.
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 7 of 23
In view of the above, the impugned
order is not legal and is therefore set
aside."
14. Learned counsel appearing on behalf of respondent No.3
has informed the Court that the order dated 27.04.2011 has been
challenged by the respondent No.3 by filing an appeal on 23.06.2011
before the Custom Excise and Service Tax Tribunal, New Delhi.
Since the said appeal is yet to be listed and there is no stay of the
operation of the said order, thus, the order dated 27.04.2011 is
operational.
15. The main concern of the petitioner at this stage is that the
petitioner has already suffered a demurrage to the tune of rupees
Twenty lacs, (now Twenty Seven lacs approximately) and the same
is being continued to be levied at an escalating rate. Further the
product in question „casein‟ has no domestic market. It has a shelve
life of one year. The goods in question were manufactured in
January-February 2011. Thus, the five months have passed. After
clearance the required shipping time to destination is one and a half
month and the importers also accept the product if approximate six
months of the shelve life of the products is remaining. As on date
five and a half months of shelve life of the product only remains.
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 8 of 23
16. The petitioner states that the effect of the impugned
notifications is that all the plant and machinery worth crores of rupees
is lying idle and the dues of the bank over Rs.150 Crores are
mounting and the Petitioner has the liability of paying the interests
and term loan repayment. The Petitioner has given direct
employment to hundreds of skilled and unskilled workers,
professionals, technicians, scientists in the filed of Diary Science,
Nutrition, Veterinary, Food Technology, life sciences and research
professionals.
17 The petitioner imported machinery against the EPCG
license. As pr the terms of this license, import duty was partially
waived of against the guarantee given by the petitioner that they will
make exports to the tune of certain crores and as per the said license.
If the petitioner fails in discharging the said obligation, then the
petitioner shall have to pay the import duty that was waived on the
import of the machines along with interest.
18. The petitioner submits that Commissioner of Customs
ICD Tuglakabad New Delhi has not till date, permitted the Petitioner
to export 135 MT of casen of the Petitioner, in spite of the clear
Orders dated 27.4.2011 passed by the Commissioner (Appeals) in the
Appeal filed by the Petitioner wherein he, inter alia, held that the
petitioner was to be permitted to export Casen as the case of the
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 9 of 23
Petitioner was covered under notification dated 24.03.2011.
Therefore, the petitioner had no alternative except to file the present
writ petition.
19. It is also mentioned in the petition that the Additional
Commissioner Customs ICD Dadri NOIDA in the matter of another
exporter vide orders dated 04.05.2011 was pleased to permit the
export of the skimmed milk powder in respect of the goods as were
handed over to the Customs for export before the dead line i.e.,
18.02.2011 as per the notification dated 24.03.2011 and the
examination of the goods by the „Excise Officer‟ were taken to be
examination by the „Customs Officer‟.
20. It is further stated by the petitioner that in the case of
M/s VRS Foods Ltd., the department did not file any appeal against
the Orders dated 04.05.2011 of Addl. Commissioner Customs, ICD
Dadri ANN-P-XVI Page 122 and athe product which was factory
stuffed and examined by officers of the Central Excise was permitted
to be exported by the Custom Officials.
21. Respondent No. 3 has filed reply affidavit of Sh.
Navraj Goel, Deputy Commissioner of Customs (Export) on
24.6.2011 who has stated in his affidavit that the petitioner export 135
MT of casein is hit by prohibition imposed under notification 23(RE-
2010)/2009-2012 dated 18.2.2011. In the affidavit it is not denied
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 10 of 23
that the petitioner filed four shipping bills for export of Acid Casein
at ICD, Tuglakabad which are on or before 18 th February, 2011.
However, the contention of the respondent No. 3 is that the date of
assessment of shipping bill and the date of production of cargo to
customs were subsequent to the date of notification as the cargo was
handed over to the customs for examination and export subsequent to
the said date. In nut shell, respondent No. 3 states that the goods
ought to have handed over to the customs on or before 18 th February,
2011 for examination of export. Further contention of respondent No.
3 is that in case of factory stuffed cargo, where goods are examined in
the factory in the presence of jurisdiction Central Excise Officers, the
goods are not produced to Customs at the ICD/Port. Hence, it was
not permissible to permit export of impugned goods due to
prohibition in the notification.
22. Other submission of learned counsel for respondent No.
3 is that since the appeal has been filed by the respondents against the
order dated 27th April, 2011 therefore the issue in question is now
sub-judice and no order can be passed in the present writ petition,
however, some directions may be issued to the CESTAT for early
disposal of the appeal filed by respondent No. 3.
23. Now the question before this Court is as to whether the
exports are hit by prohibition imposed under notification dated 18th
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 11 of 23
February, 2011 or some are covered under transitional provision of
the notification and in terms of notification 31/1997-Cus(NT) dated
7th July, 1997 wherein the Superintendents and Inspectors of Central
Excise Department in any place of India have been appointed as
Officers of Customs and therefore the presentation of goods for
examination before the jurisdictional Central Excise Officers for
export is nothing but presentation of goods for Customs examination
for export.
24. The notification No. 31/97-Cus.(N.T.), dated 7th July,
1997 reads as under:-
"Appointment of Appraisers, Examiners,
Superintendents, Inspectors, Preventive Officers,
Women Searchers, Ministerial Officers and Class
IV officers in the Customs Department in any
place in India. Officers of DRI, Narcotics Control
Bureau and EIB appointed as "Officers of
Customs". - In exercise of the powers conferred
by sub-section (1) of section 4 of the Customs Act,
1962 (52 of 1962) and in supersession of the
notification of the Government of India in the
Ministry of Finance (Department of Revenue) No.
38/63-Customs, dated 1st February, 1963 the
Central Government hereby appoints the following
persons to be the Officers of Customs, namely:-
1. Appraisers, Examiners, Superintendent
Customs (Preventive), Preventive Officers ,
Women Searchers, Ministerial Officers and
Class IV Officers in the Customs Department
in any place in India.
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 12 of 23
2. Superintendents, Inspectors, Women Searchers,
Ministerial staff and Class IV staff of Central
Excise Department, who are for the time being
posted to a Customs port, Customs airport,
Land-Customs station, Coastal por, Customs
preventive post, Customs Intelligence post or a
Customs warehouse.
3. Superintendents, and Inspectors of Central
Excise Department in any place in India.
4. All Officers of the Directorate of Revenue
Intelligence.
5. All Officers of the Narcotics Control Bureau.
6. All Intelligence Officers of the Central
Economic Intelligence Bureau."
25. The learned counsel for respondent No. 3 has not
shown/produced any other contrary notification other than the
notification dated 7th July, 1997 referred by the learned counsel for
the petitioner wherein it is clearly mentioned that all the
Superintendents and Inspectors of Central Excise Department in any
place of India have been appointed as Officers of Customs.
26. In the present case it is not disputed fact that the
petitioner is eligible for opting clearance of goods for exports and
examination thereof at the factory itself in terms of CBEC‟s Circular
No. 60/2001-Cus dated 01.11.2001 and the exports are permissible
for dairy products manufactured by the petitioner till 18.02.2011. The
respondent No.3 has also not disputed the fact that the petitioner
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 13 of 23
sought stuffing permission in respect of the same. The Circular No.
60 dated 1st November, 2001 referred by the petitioner reads as
under:-
"CIRCULAR NO. 60 DATED
st
1 November 2001
I am directed to refer to Board‟s instructions
issued vide telex/ letter F.No. 434/47/95-
Cus.IV, dated 9.10.95 and Circular No.
90/98-Cus. dated 8/12/98 regarding factory
stuffing on containers with export cargo.
The said instructions provide detailed
guidelines for factory stuffing of container.
It has been brought to the notice of the
Board by the trade that exporters are
required to obtain permission for factory
stuffing from Customs every six months. It
has been suggested that the Customs should
do away with the practice of six monthly
permission for factory stuffing and this
should be made one time permission.
2. The matter has been examined by the
Board. It has been decided to discontinue
the practice of renewal of permission for
factory stuffing every six months. The
permission for factory stuffing shall be
granted on one time basis and exporters
shall not be required to come to Customs
every six months for renewal of the same.
However, in case something adverse is
noticed against the exporter, the Customs
may withdraw the permission.
3. These instructions may be brought to
the notice of all concerned by way of
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 14 of 23
issuance of suitable Public Notice/ Standing
Order.
4. Difficulties, if any, in implementation
of these instructions, may be brought to the
notice of the Board. Kindly acknowledge
receipt of this circular.
G. Circular No. 20/2010-Customs
F. No.450/ 98 /2010-Cus.IV
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
North Block, New Delhi
22nd July, 2010
To
All Chief Commissioners of Customs /
Customs (Prev.).
All Chief Commissioners of Customs &
Central Excise.
All Commissioners of Customs / Customs
(Prev.).
All Commissioners of Customs (Appeals).
All Commissioners of Customs & Central
Excise.
All Commissioners of Customs & Central
Excise (Appeals).
Subject: Provision of single factory
stuffing permission valid for all Customs
Houses - regarding.
Sir/ Madam,
I am directed to invite your attention
to Board's instructions issued vide
telex/letter F.No.434/47/95-Cus.IV, dated
9.10.95, Circular No. 90/98-Cus dated
8/12/98 and Circular No. 60/2001-CUS
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 15 of 23
dated 1st November, 2001 regarding
Permission for factory stuffing.
2. The Task Force of the Department
of Commerce to reduce transaction cost
involved in exports has recommended the
grant of a single factory stuffing permission
valid for all the customs stations instead of
customs station wise permission. This
recommendation has been accepted by the
Government.
3. Accordingly, it has been decided by
the Board to provide for the grant of a
single factory stuffing permission valid for
all the customs stations instead of customs
station wise permission. The facility will be
subject to the following safeguards:
(i) The exporter may be asked to
furnish to customs a list of customs stations
from where he intends to export his goods.
(ii) The customs house granting the
factory stuffing permission should maintain
a proper register to keep a track-record of
such permissions, and also create a unique
serial number for each of such permissions.
(iii) The customs house granting the
factory stuffing permission should circulate
the permission to all customs houses
concerned. The communication should
clearly indicate the name and contact
details of the Preventive Officer/Inspector
and Superintendent concerned of the
customs house granting the permission as
well as those of the Central Excise Range
concerned to facilitate real time
verifications, if required.
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 16 of 23
(iv) In case, something adverse is
noticed against the exporter, the customs
station concerned shall promptly intimate
the customs house which has granted the
permission, which will, in turn, withdraw
the permission, and inform to all customs
houses concerned.
4. Board‟s earlier instructions
/circulars stand modified to the extent
mentioned above.
5. These instructions may be brought
to the notice of all concerned by way of
issuance of suitable Public Notice /
Standing Order.
6. Difficulties, if any, in
implementation of the Circular may be
brought immediately to the notice of the
Board.
Yours sincerely,
(Navraj Goyal)
Under Secretary (Customs)"
27. In case we see the entire matter on merit, it is obvious
that in fact, the petitioner has filed the present petition for
compliance of the said order dated 27.04.2011 passed by the
Commissioner of Customs (Appeals). It is not denied by the
respondent No.3 that on the date of filing of the petition, the
petitioner has incurred demurrage of Rs. 20 lac and the amount of
demurrage against the petitioner are continuing every day. The
petitioner‟s case is that the notification dated 18.02.2011 was issued
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 17 of 23
without any intimation/notice whatsoever given by the respondents to
the petitioner or any concerned parties though many courts have time
and again held that legitimate expectations but a fact of the Rule of
Law and Administrative action must be in conformity with the
Legitimate Expectation of persons. The petitioner says that in view
thereof, the respondents have no power to take away any vested
rights with retrospective effect.
28. The respondent No.3 has not disputed the fact that the Excise
Officers examined the goods under four shipping bills (in seven
containers) on 16.02.2011, 16.02.2011, 16.02.2011 and 18.02.2011
and thereafter the same were removed from the factory on the same
very date and they were handed over at ICD Tuglakabad on
17.02.2011 (at 06:07 am and 06:06 am in two containers); 18.02.2011
(at 04.26 am and 04.26 am in two containers); 17.02.2011 (at 07:23
am and 11:49 am in two containers);19.02.2011 (at 2.47 am in one
container). The defendant No.3 has also not denied that the
containers of the goods arrived at ICD Tughlakabad on various dates
and the petitioner thereafter presented the Shipping Bills to the
adjudicating authority for formal „Let Export Order‟.
There is a force in the submission of the petitioner that
the petitioner has completed all the formalities for exportable goods
under the compliance of notification dated 07.07.1997 which provides
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 18 of 23
that all Superintendents and Inspectors of Central Excise Department
in any place of India have been appointed as Officers of Customs.
29. In terms of para 9.12 of Handbook procedures 2009-14,
which provides that in case of change of policy provisions, the same
shall not be applicable to the consignment already handed over to
Customs for examination and subsequent exports up to Public
Notice/Notification date. The relevant provisions are as below:
"However, wherever Procedural/Policy
provisions have been modified to
disadvantage of exporters, same shall not be
applicable to consignments already handed
over to Customs for examination and
subsequent exports upto Public
Notice/Notification date.
Similarly, in such cases where goods are
handed over to the customs authorities
before expiry of export obligation period
but actual Exports take place after expiry of
the export obligation period, such exports
shall be considered within export obligation
period and taken towards fulfilment of
export obligation."
The grievance of the petitioner is that the respondent
No.3 has not informed the concerned parties about the notification
dated 18.02.2011otherwise there was no occasion on the part of the
petitioner not to comply any other formality, if left and is required by
the custom authorities.
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 19 of 23
30. After having considered the above, we feel that in case there is
any procedural delay, the petitioner cannot be blamed as the petitioner
has completed the formalities in terms of notification dated
07.07.1987. Therefore, it is apparent on the face of it that the exports
are not hit by the provision imposed under the notification dated
18.02.2011.
31. It is not understood why the respondent No.3 has not
challenged the order dated 27.04.2011 promptly if respondents were
serious about the said order, rather the appeal was filed after filing
the present writ petition by that time the petitioner had to incur
demurrages of Rs. 20 lac on the date of filing.
32. In similar situations in the case of M/s VRS Foods
(supra) orders were passed by Additional Commissioner, ICD on 4 th
May, 2011 and in the said case the goods were examined by the
Central Excise Officer under their supervision for container No.
SGCU 2458144 & TGHU 0144617 and brought in the customs area
on 18.02.2011 (but after office hours) already had been examined by
the Central Excise Officer on 18.02.2011.
33. The respondents have banned the export casein which is
made from less than 0.25% of the total milk production in the country
as per the case of the petitioner while it is an admitted position that
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 20 of 23
the respondents have not banned the export of the other milk products
like cheese, ghee, butter etc.
34. In the present case, in case the export of Casein and
Casein products of the petitioner are not allowed, it will cause
irreparable loss and injury to the petitioner as the said goods cannot
be re-used. It is also a fact that there is no loss of custom duty as
admitted by the respondent No.3. Therefore, the balance of
conveyance even otherwise lies in favour of the petitioner and against
the respondents. The Division Bench judgment of Bombay High
Court titled Parag Milk and Milk Products Ltd. v. Union of India
dated 16th August, 2007 has allowed the export in similar situation.
Para 10 of the judgment reads as under:-
"10. The above principles, if applied to the
present case, would show that the doctrine of
legitimate expectancy, and for limited extent of
constructive promissory estoppel, would have
some application. The petitioner has invested huge
amount to establish a plant and export facilities of
international standards. The declared policy was to
operate during the period of 2004 to 2009.
Prospective application of the ban is not in
question before us. On various grounds the same
could even be justified. However,if the concluded
contracts, which have been acted upon between the
parties partially prior to the cut off date are not
fulfilled, it would, to a great extent, amount to
disturbing the settled things. Such an approach
would be greatly unacceptable in view of the fact
that the respondent themselves had reserved the
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 21 of 23
right to examine on case to case basis the existing
export obligations. Nowhere in the order, and for
that matter even in the counter affidavit, it is stated
what would be the existing export obligation and
under what circumstances the benefit of the
decision could be given to the affected parties.
Public interest is a term of wide connotation and it
has to be considered keeping in view the facts and
circumstances of each case. The Authorities
concerned while passing the order dated 30th
April, 2007 had ignored these aspects of the matter
while it has taken into consideration what is not on
record. There is nothing even on the court file to
show as to what is intended by existing export
obligation, simplicity except obligation in relation
to free trade items. We may also notice that on
20th April, 2007 some discussion had taken place
between the Director General of Foreign Trade,
Ministry of Commerce and the petitioner. Vide
their letter of the same date they had stated that as
per the discussions the petitioner may be allowed
to export 5000 M.T. Skimmed Milk Powder
against existing contractual obligations. Thus the
petitioner was even willing to restrict its trade to
export of 5000 M.T. The impugned order does not
even touch this aspect of the matter in its proper
perspective."
35. From the above discussion, we allow the interim
application filed by the petitioner. We direct the respondents to
allow the petitioner to export the goods in question in terms of the
prayer made in the application.
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 22 of 23
WP(C) 3839/2011
Notice has already been issued in the writ petition. The
respondent No.3 is granted four weeks time to file the counter
affidavit with advance copy to the learned counsel for the petitioner
who may file the rejoinder thereto within two weeks thereafter.
List the matter before the Roster Bench on 26.08.2011.
MANMOHAN SINGH, J.
SURESH KAIT, J. JULY 05, 2011 ns/ak/dp C.M. No. 8010/2011 in WP(C) 3839/2011 Page 23 of 23