2023 (10) TMI 13 - HC - Customs

Permission for clearance and loading of the goods - Non-Basmati Rice for exportation on board vessel M.V. KEN COLON - notification no. 20 of 2023 - HELD THAT - Condition no. (ii) of para no. 2 of the notification provides that where the shipping bill is filed and the vessels have already berthed or arrived and anchored in Indian ports and their rotation number has been allocated before the notification then the approval of loading in such vessel will be issued after confirmation by the concerned Port Authorities regarding anchoring/ berthing of the ship for loading of Non-Basmati Rice prior to the notification, whereas applying this condition to the facts of the case it is not in dispute that the vessel M.V.KEN COLON arrived Land Anchored in Indian Port (Kandla) on 11.07.2023 and it sailed to Bhavnagar Port on 14.07.2023 for unloading of coal and returned to the Kandla Port for loading of the export cargo of the petitioners on 26.07.2023. It is also not in dispute that the VCN Export Number as well as the rotation number was allotted by Port Authority on 18.07.2023. The condition no.(ii) of para 2 of the notification no. 20 of 2023 stands fulfilled and the interpretation of the respondent no. 2 authority that the vessel ought to have arrived in India for the purpose of export and ought to have berthed prior to 20.07.2023 is not the case as the vessel had arrived in India prior to 20.07.2023 and it has anchored in two Indian Ports namely at Kandla Port on 11.07.2023 and at Bhavnagar Port on 14.07.2023, it is not necessary that the vessel ought to have arrived at Indian Port for export of the cargo coupled with the fact that the Voyage Call Number as well as the rotation number was issued for berthing of the said vessel for export of the cargo on 18.07.2023 i.e. prior to issuance of prohibitory Notification No. 20 of 2023 dated 20.07.2023. The respondent No. 2-authority ought to have permitted the petitioners to export the cargo of the remaining 13,500 metric tons of Non-Basmati Rice with regard to ten shipping bills which were already filed prior to issuance of notification no. 20 of 2023 dated 20.07.2023. The respondent authorities are directed to finally assess ten shipping bills listed at Annexure B by making an order under Section 51 of the Customs Act permitting the clearance and loading of the goods covered under these shipping bills for export of 13,500 metric tons of Non-Basmati Rice on board of the vessel which now the petitioners may hire for export of the same - petition allowed.

Summary

Issues Involved:
1. Legality of non-permission to export Non-Basmati Rice.
2. Interpretation of Notification No. 20 of 2023 regarding conditions for export.
3. Compliance with conditions specified in the notification by the petitioners.

Summary:

Issue 1: Legality of Non-Permission to Export Non-Basmati Rice
The petitioners challenged the action of respondent nos. 2 and 3 for not permitting the export of Non-Basmati Rice from Kandla Port. They had received orders from a Mozambique-based company for 55,000 metric tons of Non-Basmati Rice and had submitted 46 shipping bills before the prohibitory notification was issued on 20.07.2023. The customs authority accepted all shipping bills and provided acknowledgment numbers. However, the export of 13,500 metric tons covered under ten shipping bills was not permitted as the export duty was paid after the notification.

Issue 2: Interpretation of Notification No. 20 of 2023
The key contention revolved around the interpretation of condition no. (ii) of para 2 of Notification No. 20 of 2023, which allowed export if the vessel had berthed or arrived and anchored in Indian ports before the notification. The petitioners argued that the vessel M.V. KEN COLON arrived at Kandla Port on 11.07.2023 and was allotted a rotation number on 18.07.2023, thus fulfilling the condition. However, the customs authority contended that the vessel did not berth for the purpose of export before 20.07.2023.

Issue 3: Compliance with Conditions Specified in the Notification
The court examined whether the petitioners met the conditions specified in para 2 of the notification. It was established that the vessel arrived in Indian ports before 20.07.2023, and the rotation number was allotted on 18.07.2023. The court concluded that the petitioners fulfilled the condition no. (ii) of the notification, as the vessel had anchored in Indian ports and had a rotation number allocated before the notification.

Judgment:
The court held that the petitioners met the requirements of condition no. (ii) of para 2 of Notification No. 20 of 2023. Consequently, it directed the respondent authorities to finally assess the ten shipping bills and permit the clearance and loading of 13,500 metric tons of Non-Basmati Rice on a vessel hired by the petitioners for export. The petition was allowed, and the rule was made absolute to the extent of permitting the export. No order as to costs was made.