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2018 (3) TMI 1149 - HC - CustomsWithdrawal of No Objection Certificate granted to the petitioner for import of 2000 MTs of Pigeon Peas from Mozambique - withdrawal on the ground that subsequently the Government of Mozambique informed the Government of India mandating only ICM (Institute de Cereasi de Mozambique) to be the sole designated agency responsible for regulating export of pulses to India under Memorandum of Understanding. Held that - On a perusal of the trade notice, it could be seen that nowhere it has been mentioned that service would be only by ICM. In the impugned communication, it has been stated that the decision taken by the Government of Mozambique much after the sale contract dated 10.10.2017 was entered into for supply of pigeon peas and after issuance of the No Objection Certificate by the 1st respondent vide proceedings dated 28.11.2017 - Admittedly, the decision of Government of Mozambique stating that the certification would be only by ICM is a subsequent decision. When there is no mention in the impugned order as to the withdrawal of the No Objection Certificates already issued in favour of the importers, there is no necessity for withdrawing the existing No Objection Certificates issued in favour of the importers. The respondents could have very well advised the petitioner to approach the Government of Mozambique for getting suitable clearance based on the No Objection Certificates already issued in their favour - When the 1st respondent had issued the No Objection Certificate in favour of the petitioner, they cannot withdraw the No Objection Certificate merely because the Government of Mozambique had taken a subsequent decision asking the importers to get No Objection Certificates from ICM. Petition allowed.
Issues Involved:
1. Validity of the withdrawal of the "No Objection Certificate" (NOC) issued to the petitioner. 2. Applicability of the doctrine of promissory estoppel. 3. Retrospective effect of the decision by the Government of Mozambique. Detailed Analysis: 1. Validity of the Withdrawal of the "No Objection Certificate" (NOC) Issued to the Petitioner: The petitioner argued that the withdrawal of the NOC by the 1st respondent was arbitrary and violated the principles of natural justice. The petitioner had entered into a sale contract on 10.10.2017 for the import of 2000 MTs of "Pigeon Peas" from Mozambique and had obtained a NOC on 28.11.2017 based on a trade notice dated 17.11.2017. However, the 1st respondent later withdrew the NOC on 18.12.2017, citing a subsequent directive from the Government of Mozambique mandating that only the Instituto de Cereasi de Mozambique (ICM) could issue the Country of Origin Certificate (COO) for pulses exported to India. The court observed that the decision by the Government of Mozambique was a subsequent development and there was no statutory prohibition for issuing the NOC initially. The court held that the withdrawal of the NOC was not justified as there was no retrospective application of the directive from the Government of Mozambique. 2. Applicability of the Doctrine of Promissory Estoppel: The petitioner contended that the 1st respondent was estopped from withdrawing the NOC as it had already granted a valid NOC based on the trade notice dated 17.11.2017. The petitioner relied on several judgments to support the argument that promissory estoppel applies when a party has acted on a representation to its detriment. The court agreed with the petitioner, citing judgments that established the principle that promissory estoppel can be applied against the government in its executive functions. The court noted that the petitioner had acted on the NOC by making arrangements for the import of pigeon peas and that the subsequent directive from the Government of Mozambique could not invalidate the already issued NOC retrospectively. 3. Retrospective Effect of the Decision by the Government of Mozambique: The court examined whether the directive from the Government of Mozambique, which mandated that only ICM could issue the COO, could have retrospective effect. The court found that the directive was a subsequent decision and there was no indication that it was intended to apply retrospectively. The court emphasized that retrospective application of such directives must be explicitly mentioned, which was not the case here. Therefore, the court concluded that the directive could only have prospective effect and could not affect the NOC already issued to the petitioner. Conclusion: The court set aside the impugned order dated 18.12.2017, which withdrew the NOC granted to the petitioner. The court held that the withdrawal was not justified as the directive from the Government of Mozambique did not have retrospective effect and there was no statutory prohibition against issuing the NOC initially. The court also applied the doctrine of promissory estoppel, noting that the petitioner had acted on the NOC to its detriment. The petitioner was advised to approach the Government of Mozambique for clearance based on the NOC issued by the Chamber of Commerce of Mozambique - Beira. The writ petition was allowed with no costs.
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