2018 (11) TMI 194 - HC - Customs

Restriction on import of yellow peas - Validity of notification dated 25.04.2018, a trade notice dated 18.05.2018 and a further notification dated 30.08.2018 - It appears that the petitioner applied for registration but, such registration was not granted - vide notification No. 4 of 20152000 the category of peas changed from existing free category to the restricted category - petitioner contends that through the trade notice dated 18.05.2018, the Government of India could not have made amendments or changes in the notification dated 25.04.2018. Accordingly in case of those importers like the present petitioner who has already made advance payment in part for the imports, policy change brought about by virtue of notification dated 25.04.2018 would have no application. Held that - In case of Kinshuk Overseas Pvt Ltd versus Union of India 2018 (10) TMI 1424 - GUJARAT HIGH COURT , we had occasion to examine these policy changes in the background of facts where the petitioners' therein were the importers had not only placed import orders coupled with advance part payment before 25.04.2018, but were also granted registration for import which registrations were sought to be cancelled. Subsequent to issuance of the trade notice dated 18.05.2018, the Court had granted interim relief protecting their imports. Substantial imports were made - In case of the present petitioners even registration was not granted. The petitioner's first contention therefore must be rejected. The petitioner's second grievance is that the restrictions were withdrawn by notification dated 29.08.2018. Though the same may have been reimposed on 30.08.2018, at least for one day, no restrictions were prevailed. The case of the petitioner should have been cleared on such date - Held that - The notification was withdrawn only in view of the interim order passed by the Madras High Court and presumably to cure a technical defect. Very next day, the same set of restrictions were reimposed. The petitioner cannot argue that in this window of one day, the petitioner's imports should have been cleared. The petitioner had not made the imports during the period when even if we accept the petitioner's contention to be true, such restrictions did not apply - The insistence of verification of full advance payment therefore is confined to any claim of importer that he falls within the description of import already made. This contention of the petitioners is therefore rejected. Petition disposed off.

Summary

Issues Involved:
1. Challenge to the notifications and trade notices issued by the Government of India.
2. Legality of the Government of India making amendments or changes through a trade notice.
3. The impact of the withdrawal and re-imposition of restrictions on the import of yellow peas.
4. Reasonableness and fundamental right implications of the 100% advance payment condition.

Detailed Analysis:

1. Challenge to the Notifications and Trade Notices:
The petitioner, a private limited company engaged in imports and exports, challenged the notifications dated 25.04.2018 and 30.08.2018, and a trade notice dated 18.05.2018. The Government of India issued a notification on 25.04.2018 changing the category of yellow peas from 'free' to 'restricted' and imposed a limit of one lakh MT for the period from 01.04.2018 to 30.06.2018, including shipments backed by Irrevocable Commercial Letter of Credit (ICLC) and advance payment made through banking channels. The trade notice dated 18.05.2018 clarified that only shipments backed by 100% advance payments before 25.04.2018 would qualify for registration. The petitioner contended that these changes adversely affected their import orders.

2. Legality of Amendments Through Trade Notice:
The petitioner argued that the Government of India could not amend or change the notification dated 25.04.2018 through the trade notice dated 18.05.2018. The Court referenced the case of Kinshuk Overseas Pvt Ltd versus Union of India, where it was observed that the trade notice dated 18.05.2018 was merely clarificatory and did not amend the original notification. The term "already imported" was clarified to mean only shipments backed by 100% advance payments. The Court held that the trade notice did not change the original notification and thus rejected the petitioner's first contention.

3. Impact of Withdrawal and Re-imposition of Restrictions:
The petitioner contended that the restrictions were withdrawn on 29.08.2018 and re-imposed on 30.08.2018, and thus, for one day, no restrictions prevailed. They argued that their case should have been cleared on that date. The Court noted that the restriction was withdrawn due to an interim order by the Madras High Court and was re-imposed the next day. The Court held that the petitioner could not argue that their imports should have been cleared during this one-day window as the imports were not made during this period. Thus, the petitioner's second contention was rejected.

4. Reasonableness and Fundamental Right Implications of the 100% Advance Payment Condition:
The petitioner argued that the 100% advance payment condition was unreasonable and restrictive of their fundamental right to do business. The Court observed that this condition was not universal for all imports but was adopted for a limited period to protect local farmers against cheaper imports. The restriction was to ensure that not more than one lakh MT of peas would be imported during the specified period. The insistence on full advance payment was to verify claims of imports already made. The Court found no fault with the Government's policy and rejected the petitioner's contention regarding the reasonableness of the 100% advance payment condition.

Conclusion:
The Court disposed of the petition, rejecting all the contentions raised by the petitioner. The notifications and trade notices issued by the Government of India were upheld as valid and reasonable measures to protect local farmers and regulate imports. The petitioner's grievances were not found to be justified, and the interim reliefs granted earlier were vacated.