9911796707
TMI Blog2004 (1) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed irrevocable Letter of Credit ("LC" for short) in the form and substance acceptable to the seller. The value of LC should be for minimum US$ 6,750,000.00. There were various other terms and conditions specified in the LC which are not relevant for the purposes of the present petition. 3. It is the petitioners' case that pursuant to the above contract, on 25.11.2003, Punjab National Bank opened an irrevocable LC under which 25,000 MTS + 10% of SKO was to be purchased as per the contract dated 12.11.2003. The LC was for US$ 1,339,000.00 in the following terms:- "Currency Code Amount US$ 1,339,000.00. PCT Credit Amount Tolerance Plus/Minus 10 PCT." The LC further provided for "latest date of shipment" as "31st Jan. 2004". It is the petitioners' case that after the aforesaid LC was opened on 25.11.2003, the petitioners' came to know that Government of India has issued notification dated 25.11.2003 imposing restriction on import of SKO and canalizing it only through State Trading Agencies. The petitioners, therefore, requested the Director General of Foreign Trade that since the LC was opened on 25.11.2003 before the notification was made available to the public at large, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents do not accept the say of the petitioners that the petitioners came to know about the notification dated 25.11.2003 only on 27.11.2003. The respondents have contended that the contract was made on 12.11.2003 but the LC was opened only on 25.11.2003,, i.e., the date on which restriction was imposed and made effective. Hence the petitioners are not entitled to get benefit of the LC opened on the date of imposition of the restrictions. In the affidavit filed on behalf of respondent No.3, detailed reasons are given for the change of policy as embodied in the notification dated 25.11.2003. It is stated that decision to restrict the import through State Trading Agencies was taken in order to prevent diversion of SKO for adulteration in diesel and also being substituted for transportation and for power generation and also because the domestic production of kerosene matches with the demand and also to prevent illegal activities of parallel marketers. 6. At the hearing of this petition, Mr. Rawal, learned counsel with Mr. K.S. Jhaveri for the petitioners have submitted as under: (i) Para 1.3 of the EXIM Policy has been framed in order to protect the persons who have made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is in public interest that the Government imposed restrictions on import of SKO through State Trading Agencies in order to prevent diversion of such kerosene for illegal purposes such as adulteration in diesel and illegitimate use for power generation or as fuel. 7.4 In any view of the matter, the contract for supply of 25,000 MTS SKO provided that the LC should be for minimum US$ 6,750,000.00 whereas the LC has been opened for only US$ 1,339,000.00 and, therefore, the contract is not valid. 8. Having heard the learned counsel for the parties, it appears to us that the scope and ambit of para 1.3 of the Exim Policy has not been properly appreciated by the respondents. Paras 1.1 and 1.3 of the Exim Policy for the period from 1.4.2002 to 31.3.2007 read as under: "1.1. In exercise of the powers conferred under Section 5 of The Foreign Trade (Development and Regulation Act), 1992 (No.22 of 1992), the Central Government hereby notifies the Export and Import Policy for the period 2002-2007. This Policy shall come into force with effect from 1st April, 2002 and shall remain in force upto 31st March, 2002 and will be co-terminus with the Tenth Five Year Plan (2002-2007). Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made available to the public by publishing in the gazette and making such notification available by Government Printing Press or any such place of distribution, the restriction does not come into force. 10. On the above issue there is no dispute that the notification dated 25.11.2003 was made available to the public at large on 27.11.2003. It is not the case of the respondent authorities that the notification was made known to the public through any public media such as television broadcast. In view of the above factual aspect, we proceed on the footing that the Government notification dated 25.11.2003 imposing restriction on the import of SKO though State Trading Agencies came to the knowledge of the public at large only on or after 27.11.2003. In such an eventuality, it is obvious that the party which had opened irrevocable LC on 25.11.2003 cannot be made to suffer and that is the object of para 1.3 of the Exim policy itself. We do not go into further details as it is not the case of the respondents that the notification was made known to the public before 27.11.2003. 11. We may at this stage refer to the definition of the term "To publish" and also to refer to a few ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, 1962 and hence ... the notification must be deemed to have been published and brought to the notice of the concerned individuals on the 25th of November, 1962." Even applying the aforesaid principle, in absence of any averments by the respondent authorities about publication of the notification in any other mode, the notification published in the Gazette of India on November 25, 2003 can at the highest be deemed to have been published and brought to the notice of the people at large on November 26, 2003. 11.4 In BK Srinivasan vs. State of Karnataka, (1987) 1 SCC 658, the Apex Court dealt with the principle of publication of subordinate legislation and made the following observations :- "There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the 'conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's "Unconscientious bad mad" seeking to avoid the law, law must be known, that is to say, it mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bulk requires 24 hours for publication from the time of the receipt in the press if it is upto two pages of typewritten matter. All these instructions go to show that it is not the date which is printed on the Official Gazette which is relevant, but the date on which the Gazette is made available to the public is that relevant. 19. What is the use of the Official Gazette which is lying in the printing press of the Government of India or any Government Department and is not made known to the public who are to be affected by such a Gazette. We have seen what is meant by the words 'notification' and 'publication'. Principle "ignorance of law" is no excuse" cannot be invoked unless that law is made public. It is, therefore, the date on which the Official Gazette is made available to the public that matters, and not the date on which it is shown to have been printed." 11.7 The aforesaid case law on the subject, therefore, leaves no room for doubt that the delegated legislation or orders must be made known to the public at large or to the persons likely to be affected thereby and that there must be reasonable publication of some sort before such delegated legislation or orders can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said request and submits that no such extension may be granted. 15. Having heard the learned counsel for the parties on this aspect, we are of the view that as the petitioners' request was not granted in response to the representation dated 3.12.2003 or thereafter, they ought to have approached this Court as expeditiously as possible. Anyhow the petitioners approached this Court immediately on reopening of the Court on 12.1.2004 after winter vacation and, therefore, we direct that the authorities shall exclude the period from 27.12.2003 (i.e. the date on which the winter vacation of this Court commenced) till today i.e., 23.1.2004, while considering the validity of the irrevocable LC dated 25.11.2003, that is, validity period of the LC dated 25.11.2003 shall be treated as 28.2.2004. 16. In view of the above discussion, the petition is allowed. The respondents are directed to permit the petitioners to import SKO to the extent of US$1,339,000.00 plus/minus ten per cent as per the irrevocable LC dated 25.11.2003 within the time limit as stipulated in the aforesaid irrevocable LC after excluding the period from 27.12.2003, (i.e. the date on which the winter vacation of this Court comme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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