Bombay High Court
M/S Shah Nanjinagsi Exports Pvt. Ltd., ... vs Union Of India, Through The Secretary, ... on 21 September, 2018
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2968 OF 2018
M/s Shah Nanji Nagsi Exports Pvt. Ltd.,
a Company incorporated under Indian
Companies Act, having its office at Anaj
Bazar, Itwari, Nagpur, through its
Director Shri Ashwin s/o Sudhir Shah,
aged about 50 years, resident of Raj
Nagar, Nagpur. ... PETITIONER
VERSUS
1. Union of India, through the Secretary,
Ministry of Commerce and Industry,
New Delhi - 110 001.
2. The Commissioner of Customs and
Central Excise, Seminary Hills,
Nagpur.
3. The Director General of Foreign
Trade, Udyog Bhavan, New Delhi.
4. The Joint Director,
Director General of Foreign Trade,
Seminary Hills, Nagpur.
5. Commissioner of Customs and Central
Excise, Jawaharlal Nehru Custom
House, Seva, Tal-Uran, Distt. Raigad,
Maharashtra 400 707. ... RESPONDENTS
....
Shri M.G. Bhangade, Senior Advocate for the petitioner.
Shri U.M. Aurangabadkar, ASGI with Smt. Mugdha Chandurkar,
Advocate for respondent Nos.1, 3 and 4.
Shri Kunal Nalamwar, Advocate for respondent No.5.
....
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CORAM : B.P. DHARMADHIKARI AND
Z.A. HAQ, JJ.
DATED : 21ST SEPTEMBER, 2018.
ORAL JUDGMENT : (Per B.P. Dharmadhikari, J.)
Rule. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the parties.
2. After the matter was closed for judgment on 16 th August, 2018, subsequent events having material bearing occurred, Civil Application No. 2133 of 2018 is already allowed. Similarly, later applications seeking leave to bring on record other events vide Civil Application Nos.2241 of 2018 and 2342 of 2018 are filed, opportunity has been given to respondents. Respondents have argued the matter today and reply affidavit has been filed vide Stamp No. 12496 of 2018 on 10.09.2018. Those applications are also allowed.
3. Though various contentions have been raised by learned Senior Counsel and learned ASGI has replied to it, in view of the subsequent events we need not ponder over the same.
4. Insofar as grievance made in relation to relaxation permitted on 17th August, 2018 vide trade notice No.10/2018-19 is concerned, it is not in dispute that said trade notice needs to be considered only if the restriction ::: Uploaded on - 25/09/2018 ::: Downloaded on - 26/09/2018 23:44:19 ::: 3 wp2968.18 extended on 02nd July, 2018 is found to be in force on 17 th August, 2018 and thereafter. Learned Senior Counsel has submitted that therefore the omission on the part of respondents to extend benefit of this relaxation to petitioner needs to be independently considered.
5. Learned ASGI has pointed out that on 31.08.2018, against two contracts, petitioner sought leave to import 125 MT each i.e. 250 MT of Yellow Peas from Ukraine. He submits that respondents have considered that request and granted it. The necessary authorization is forwarded to petitioner under Speed Post AD. The petitioner's grievance in relation to relaxation is, therefore, redressed.
6. Copy of registration certificate signed by Shri R.R. Borikar dated 19.09.2018 is also made available by him on record. It is taken on record as "Exh.X". In view of this document, we do not find it necessary to consider the grievance in relation to omission to pass suitable orders on request of petitioner.
7. The respondents have on 29th August, 2018, issued a notification which withdraws the restrictions extended vide Notification No.15 dated 02.07.2018. This Notification No. 31/2015-20 is on subject of withdrawal of that notification and it also mentions orders of Madras High Court in Writ Petition Nos. 15021 to 15024 of 2018 and other writ petitions. Restriction on import of Yellow Peas extended till 30 th September, 2018 by Notification dated ::: Uploaded on - 25/09/2018 ::: Downloaded on - 26/09/2018 23:44:19 ::: 4 wp2968.18 02nd July, 2018 has been withdrawn. Effect of this withdrawal is given in that notification only, hence after 29th August, 2018, no restriction on such import existed.
8. Immediately on next day, i.e. on 30 th August, 2018, the restriction has been imposed. This Notification No. 32/2015-20 dated 30 th August, 2018 does not make any mention to any earlier notification. Notification by itself, therefore, cannot be read as referring to withdrawal on 29 th August, 2018 or then extension notification dated 02 nd July, 2018. This notification, therefore, restricts import from 30th August, 2018.
9. Thus, after withdrawal of notification dated 02 nd July, 2018, on 29th August, 2018, there is no ban on 29 th August, 2018 till its imposition on 30 th August, 2018.
10. Our attention was invited to judgment of Hon'ble Apex Court in the case of Director General of Foreign Trade and another .v. Kanak Exports and another (reported at 2016(2) SCC, 226) to contend that such circular and trade notifications cannot have retrospective effect. This ruling helps the cause of petitioner. We need not delve more since in present matter only, while issuing trade notice No. 10 on 16 th May, 2018, respondents have observed as under :-
"In this regard, please refer to Notification No. 5 dated ::: Uploaded on - 25/09/2018 ::: Downloaded on - 26/09/2018 23:44:19 ::: 1 wp2968.18 25.4.2018 wherein the revised Para 1.05 of FTP (2015-20) clarifies that whenever Government brings out a policy change of a particular item, the change will be applicable prospectively, from the date of Notification unless otherwise provided for."
11. Thus, respondents are clear that policy change on a particular item applies prospectively from the date of Notification unless it is otherwise provided for. Here, while imposing restriction on 30 th August, 2018, no words providing otherwise are employed. There is nothing on record, therefore, to show that the Notification No. 32/2015-20, dated 30 th August, 2018 has to operate retrospectively.
12. The documents filed by petitioner along with petition show that against two contracts, the balance 90 per cent amount was paid respectively on 23.05.2018 and 04.06.2018. Yellow Peas forming subject matter of those two contracts were to be loaded at Ukraine and unloaded at Nhava Sheva Port. The shipments were accordingly loaded on 28.04.2018 and 10.05.2018 and have reached the port of discharge on 23.05.2018 and 31.05.2018. These details, therefore, show that before 30th August, 2018, the contract was fully executed.
13. In this situation, without observing anything more, we direct respondents to take necessary steps to permit petitioner to lift and use imported Yellow Peas in these two shipments without subjecting them to the restriction imposed vide Notification No. 32 dated 30 th August, 2018. ::: Uploaded on - 25/09/2018 ::: Downloaded on - 26/09/2018 23:44:19 :::
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14. Accordingly, we allow this writ petition.
15. Learned ASGI Shri Aurangabadkar seeks stay of this order for three weeks so as to enable the respondents to approach Hon'ble Apex Court in the matter.
16. Request is being opposed by learned Senior Counsel Shri Bhangade.
17. In this situation, we stay this order for the period of one week. Interim order shall cease to operate automatically thereafter.
18. Certified copy be expedited.
JUDGE JUDGE
*rrg.
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