2017 (3) TMI 342 - HC - Customs

Permission to Export Shark Fins - prohibited item - export of Shark Fins was prohibited as per N/N. 110 (RE-2013)/ 2009-2014 dated 06.02.2015 issued by the Director General of Foreign Trades, New Delhi, and that this Court has stayed the above notification up to 09.03.2016, the Purchase Order was dated 18.02.2016 and there was sufficient time for fulfilling the export obligation as the stay was up to 09.03.2016 - Held that - The fact remains, 3,788 Kgs. of Dried Shark Fins, admittedly collected by the petitioner before 09.03.2016, are remaining with the petitioner. There is no local market for the Shark Fins, according to the petitioner. I am of the considered opinion that if the Shark Fins are not exported, and if there is no local market for the same, it transforms itself into huge waste, and the Government of India suffer adverse financial consequences, even though in a small measure. There is every possibility that the same could generate as a waste, and thereby create environmental pollution also, adding to the already existing adverse environmental conditions - a further short period can be provided to the petitioner to export the same - petition allowed - decided in favor of petitioner.

Summary

Issues:
1. Petitioner's request to export 3,788 Kgs. of Dried Shark Fins declined by the respondent.
2. Interpretation of previous judgments (Ext.P4 and P9) regarding export obligations.
3. Denial of time extension for export by the respondent.
4. Application of Foreign Trade Policy 2015-20 "Transitional Arrangement."
5. Legal entitlement of petitioner to export remaining Shark Fins.

Analysis:
The petitioner filed a writ petition seeking direction to export 3,788 Kgs. of Dried Shark Fins after the respondent declined the request. The court considered previous judgments (Ext.P4 and P9) which directed the respondent to permit export to fulfill pending obligations. The respondent permitted export of 15,369 Kgs. of Shark Fins, but the petitioner could only export 11,581 Kgs. within the specified time. The petitioner sought an extension, which was refused by the respondent citing directives from the court judgments. The respondent argued that the export obligation should be based on legally established orders, not stock availability. The court analyzed the procurement timeline and the petitioner's efforts to fulfill obligations.

The court noted that the petitioner procured the Shark Fins before the cut-off date and made efforts to fulfill export obligations. Despite facing challenges like stock damage, the petitioner could not export the entire quantity. The court acknowledged the government's intent to protect shark species but also considered the financial and environmental implications of wasted Shark Fins. The petitioner argued the lack of a local market for Shark Fins and emphasized the potential waste and adverse consequences. Considering these factors, the court set aside the respondent's order and directed the petitioner to export the remaining 3,788 Kgs. within two months, providing a final opportunity.

The court discussed the implications of the Foreign Trade Policy 2015-20 "Transitional Arrangement," emphasizing the need to balance policy restrictions with contractual obligations. It considered the petitioner's situation, the lack of local market, and the potential waste of Shark Fins. The judgment balanced conservation concerns with practical challenges faced by the petitioner, ultimately allowing a short extension for export. The decision aimed to address both the petitioner's concerns and the broader environmental and financial implications of wasted Shark Fins, providing a pragmatic solution within the legal framework.