2020 (10) TMI 829 - HC - Customs

Prohibition on export of all varieties of onions with immediate effect - Validity of N/N. 31/2015-20 dated 14.09.2020 issued by Director General of Foreign Trade, Department of Commerce, Ministry of Commerce and Industry, Government of India - basic grievance of the Petitioners are that their bills for export of onions were prior to issuance of notification dated 14th September, 2020 whereby export of onions has been prohibited; yet those are not being permitted to be exported. HELD THAT - A conjoint reading of sections 50 and 51 of the Customs Act would prima facie indicate that a great deal of sanctity is attached to a shipping bill and a bill of export, shipping bill in the present case. While presenting a shipping bill the exporter has to disclose all the relevant information pertaining to the export and has to make a declaration as to the truthfulness of the contents of the shipping bill - In exercise of the powers conferred by section 157 (general power to make regulations) read with section 50 of the Customs Act, the Central Board of Indirect Taxes and Customs have made a set of regulations called the Shipping Bill (Electronic Integrated Declaration and Paperless Processing) Regulations, 2019 (2019 Regulations). Authorized person has been defined to mean an exporter or a person authorized by him under regulation 2(b). Electronic integrated declaration has been defined under regulation 2(c) to mean particulars relating to the export goods that are entered in the Indian Customs Electronic Data Interchange System. Under regulation 2(d), ICEGATE has been defined to mean the customs automated system of Central Board of Indirect Taxes and Customs. Shipping bill has been defined under regulation 2(g) to mean an electronic integrated declaration accepted and assigned a unique number by the Indian Customs Electronic Data Interchange System, and includes its electronic records or print outs. Thus, filing and generation of shipping bill is not an empty formality. It has a definite meaning assigned to it under the 2019 Regulations. It sets in motion the process of exportation of goods. The 2019 Regulations only reinforces the sanctity attached to a shipping bill under section 50 of the Customs Act - we may also usefully refer to internal communication of the Central Board of Indirect Taxes and Customs dated 18.09.2020 whereby clarification has been issued on date of shipment / dispatch in respect of exports having regard to the provisions contained in paragraph 9.12(B) of handbook of procedure. It says that wherever procedural / policy provisions have been modified to the disadvantage of the exporters, the same shall not be applicable to consignments already handed over to the customs for examination and subsequent exports upto public notice / notification date. It has been clarified by the Central Board of Indirect Taxes and Customs that this provision would remain applicable wherever the conditions are met. In continuation of our order dated 25.09.2020, export of onions in respect of the shipping bills which were presented and generated prior to 22 28 11 hours on 14.09.2020 shall be allowed subject to the clarification given by the Central Board of Indirect Taxes and Customs in its communication dated 18.09.2020 - List this matter in the first week of December, 2020 for fixing a date of hearing.

Issues Involved:
1. Challenge to the notification prohibiting the export of onions.
2. Validity of shipping bills filed before the issuance of the notification.
3. Allegations of insider information and arbitrary actions by customs authorities.
4. Procedural compliance under the Customs Act, 1962 and related regulations.

Detailed Analysis:

1. Challenge to the Notification Prohibiting the Export of Onions:
The petitioners challenged the notification No.31/2015-20 dated 14.09.2020 issued by the Director General of Foreign Trade, which prohibited the export of all varieties of onions with immediate effect. They argued that the notification was arbitrary, unreasonable, and contrary to the Foreign Trade Policy, 2015-20. The court acknowledged the petitioners' grievance and directed that shipping bills filed prior to the issuance of the notification should not be considered lapsed until the court decided the matter.

2. Validity of Shipping Bills Filed Before the Issuance of the Notification:
The petitioners contended that their shipping bills for the export of onions were filed before the issuance of the notification and should be allowed for export. The court noted that the shipping bills set in motion the process of exportation and held significant legal sanctity under section 50 of the Customs Act, 1962 and the Shipping Bill (Electronic Integrated Declaration and Paperless Processing) Regulations, 2019. The court directed that the consignments with shipping bills filed and generated before 22:28:11 hours on 14.09.2020 should be allowed for export, subject to the clarification given by the Central Board of Indirect Taxes and Customs in its communication dated 18.09.2020.

3. Allegations of Insider Information and Arbitrary Actions by Customs Authorities:
The petitioners alleged that the customs authorities had insider information about the impending notification and arbitrarily stopped processing Let Export Orders for their consignments on 14.09.2020. The court observed that the respondents did not specifically deny these allegations in their affidavits. The court took into account the procedural requirements under sections 50 and 51 of the Customs Act, 1962, and the 2019 Regulations, which emphasize the accuracy and completeness of information in shipping bills and the proper procedure for export clearance.

4. Procedural Compliance Under the Customs Act, 1962 and Related Regulations:
The court examined the procedural compliance under sections 50 and 51 of the Customs Act, 1962, which deal with the entry and clearance of goods for exportation. The court emphasized that a shipping bill is a crucial document that initiates the export process and must be treated with due sanctity. The court also referred to the internal communication from the Central Board of Indirect Taxes and Customs dated 18.09.2020, which clarified that procedural or policy modifications to the disadvantage of exporters should not apply to consignments already handed over to customs for examination and export before the notification date.

Conclusion:
The court issued a rule and granted interim relief, allowing the export of onions for shipping bills presented and generated before 22:28:11 hours on 14.09.2020. The matter was listed for further hearing in the first week of December 2020. The court's order emphasized the importance of procedural compliance and the legal sanctity of shipping bills in the export process.

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