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TMI Blog2011 (7) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... was granted to file the reply to the Custom Authority who is the main contesting party. 3. Learned counsel appearing on behalf of the petitioner has made a statement before us that at this stage the petitioner is only pressing the following relief made in CM. No. 8010/2011 which is listed for disposal: To permit the petitioner to export 135 MT of casein lying at ICD Tuglkabad, New Delhi and 70 MT of casein lying in the godowns of the petitioner. Further the petitioner be permitted to fulfill their total pending export orders of 560 MT of Casein as enumerated in ANN-P-XII. 4. Both the parties were heard in the interim application and orders were reserved on 27.06.2010. 5. The brief facts of the case relevant for the disposal of the present writ petition are that the petitioner is a manufacturer of dairy products having factory at Agra-Aligarh By-pass Road, Khaireshwar Dham (U.P.) which is duly registered with the Central Excise Division-Aligarh (Lucknow Commissionrate) under Registration No. AACCB2221MXM001. 6. The petitioner is eligible for opting clearance of goods for export and examination thereof at the factory itself in terms of CBEC's Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milk and milk products, including 'casein' and 'casein products', which the petitioner was exporting. 11. The containers of the goods arrived at ICD Tughlakabad on various dates and the petitioner thereafter presented the Shipping Bills to the adjudicating authority for formal 'Let Export Order', however, the adjudicating authority disallowed the exports on the reason that the goods that the goods were presented for examination before the Custom Officer on 21.02.2011. Therefore, it cannot be permitted in terms of the said notification. Thereafter the petitioner filed the appeal in the office of Commissioner of Customs (Appeals) bearing No. CCA/ICD/207/2011. 12. After hearing the parties on 27.04.2011, the said appeal was allowed and the impugned order disallowing the export of the in goods was set aside. The Commissioner of Customs (Appeals) came to the conclusion that the said order was not legal in view of the notification No. 31/1997-Cus(NT) dated 07.07.1997 wherein it is mentioned that all Supreintendents and Inspectors of Central Excise Department in any place of India have been appointed as Officers of Customs and therefoere presentation of goods for examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibition imposed under Notification No.23 (RE-2010)/2009-2014 dated 18.02.2010 (ANN-P-I) as the same are covered under transitional provision of the said notification. In view of the above, the impugned order is not legal and is therefore set aside." 14. Learned counsel appearing on behalf of respondent No.3 has informed the Court that the order dated 27.04.2011 has been challenged by the respondent No.3 by filing an appeal on 23.06.2011 before the Custom Excise and Service Tax Tribunal, New Delhi. Since the said appeal is yet to be listed and there is no stay of the operation of the said order, thus, the order dated 27.04.2011 is operational. 15. The main concern of the petitioner at this stage is that the petitioner has already suffered a demurrage to the tune of rupees Twenty lacs, (now Twenty Seven lacs approximately) and the same is being continued to be levied at an escalating rate. Further the product in question 'casein' has no domestic market. It has a shelve life of one year. The goods in question were manufactured in January-February 2011. Thus, the five months have passed. After clearance the required shipping time to destination is one and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of Addl. Commissioner Customs, ICD Dadri ANN-P-XVI Page 122 and athe product which was factory stuffed and examined by officers of the Central Excise was permitted to be exported by the Custom Officials. 21. Respondent No. 3 has filed reply affidavit of Sh. Navraj Goel, Deputy Commissioner of Customs (Export) on 24.6.2011 who has stated in his affidavit that the petitioner export 135 MT of casein is hit by prohibition imposed under notification 23(RE-2010)/2009-2012 dated 18.2.2011. In the affidavit it is not denied that the petitioner filed four shipping bills for export of Acid Casein at ICD, Tuglakabad which are on or before 18th February, 2011. However, the contention of the respondent No. 3 is that the date of assessment of shipping bill and the date of production of cargo to customs were subsequent to the date of notification as the cargo was handed over to the customs for examination and export subsequent to the said date. In nut shell, respondent No. 3 states that the goods ought to have handed over to the customs on or before 18th February, 2011 for examination of export. Further contention of respondent No. 3 is that in case of factory stuffed cargo, where goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Customs station, Coastal por, Customs preventive post, Customs Intelligence post or a Customs warehouse. 3. Superintendents, and Inspectors of Central Excise Department in any place in India. 4. All Officers of the Directorate of Revenue Intelligence. 5. All Officers of the Narcotics Control Bureau. 6. All Intelligence Officers of the Central Economic Intelligence Bureau." 25. The learned counsel for respondent No. 3 has not shown/produced any other contrary notification other than the notification dated 7th July, 1997 referred by the learned counsel for the petitioner wherein it is clearly mentioned that all the Superintendents and Inspectors of Central Excise Department in any place of India have been appointed as Officers of Customs. 26. In the present case it is not disputed fact that the petitioner is eligible for opting clearance of goods for exports and examination thereof at the factory itself in terms of CBEC's Circular No. 60/2001-Cus dated 01.11.2001 and the exports are permissible for dairy products manufactured by the petitioner till 18.02.2011. The respondent No.3 has also not disputed the fact that the petitioner sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding Permission for factory stuffing. 2. The Task Force of the Department of Commerce to reduce transaction cost involved in exports has recommended the grant of a single factory stuffing permission valid for all the customs stations instead of customs station wise permission. This recommendation has been accepted by the Government. 3. Accordingly, it has been decided by the Board to provide for the grant of a single factory stuffing permission valid for all the customs stations instead of customs station wise permission. The facility will be subject to the following safeguards: (i) The exporter may be asked to furnish to customs a list of customs stations from where he intends to export his goods. (ii) The customs house granting the factory stuffing permission should maintain a proper register to keep a track-record of such permissions, and also create a unique serial number for each of such permissions. (iii) The customs house granting the factory stuffing permission should circulate the permission to all customs houses concerned. The communication should clearly indicate the name and contact details of the Preventive Officer/Inspector an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods arrived at ICD Tughlakabad on various dates and the petitioner thereafter presented the Shipping Bills to the adjudicating authority for formal 'Let Export Order'. There is a force in the submission of the petitioner that the petitioner has completed all the formalities for exportable goods under the compliance of notification dated 07.07.1997 which provides that all Superintendents and Inspectors of Central Excise Department in any place of India have been appointed as Officers of Customs. 29. In terms of para 9.12 of Handbook procedures 2009-14, which provides that in case of change of policy provisions, the same shall not be applicable to the consignment already handed over to Customs for examination and subsequent exports up to Public Notice/Notification date. The relevant provisions are as below: "However, wherever Procedural/Policy provisions have been modified to disadvantage of exporters, same shall not be applicable to consignments already handed over to Customs for examination and subsequent exports upto Public Notice/Notification date. Similarly, in such cases where goods are handed over to the customs authorities before expiry of export obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts Ltd. v. Union of India dated 16th August, 2007 has allowed the export in similar situation. Para 10 of the judgment reads as under:- "10. The above principles, if applied to the present case, would show that the doctrine of legitimate expectancy, and for limited extent of constructive promissory estoppel, would have some application. The petitioner has invested huge amount to establish a plant and export facilities of international standards. The declared policy was to operate during the period of 2004 to 2009. Prospective application of the ban is not in question before us. On various grounds the same could even be justified. However,if the concluded contracts, which have been acted upon between the parties partially prior to the cut off date are not fulfilled, it would, to a great extent, amount to disturbing the settled things. Such an approach would be greatly unacceptable in view of the fact that the respondent themselves had reserved the right to examine on case to case basis the existing export obligations. Nowhere in the order, and for that matter even in the counter affidavit, it is stated what would be the existing export obligation and under what circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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