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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 ..... under Article 226 and 227 of the Constitution of India thereby amongst others challenging the Notification No. 23 (RE-2010)/2009-2014 dated 18.02.2010(ANN-P-I), Notification No. 25 (RE-2010)/2009-2014 dated 24.02.2011 (ANN-P-II), Notification No. 37 E (RE-2010)/2009-2014 dated 24.03.2011 (ANN-P-III) and sought other reliefs. 2. The matter was listed first time before the court on 31.05.2011 when notice was issued. On oral request the prayer to implead the Custom Authority was allowed. The matter was adjourned to 17.06.2011 before the Vacation Division Bench. When the matter was listed on 17.06.2011, time 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hart depicting the said movement of goods is already filed. 10. In the meanwhile, three notifications were isued by respondent No.2 i.e. Notification No.23(RE-2010)/2009-2014 dated 18.02.2011, Notification No.25 (RE-2010/2009-2014) dated 24.02.2011, Notification No.37 E(RE-2010)/2009-2014 dated 24.03.2011 issued by the respondent No.2 purportedly in the exercise of the powers conferred by the Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 whereby Director General of Foreign Trade has prohibited the export of inter alia various 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2001. I also find that in terms of Notification 31/1997- Cus(NT) dated 07.07.1997 all Superintendents and Inspectors of Central Excise Department in any place of India have been appointed as Officers of Customs and therefore presentation of goods for examination for export in terms of para 9.12 of the Foreign Trade policy and the stipulations of Notification No.37 E(RE-2010)/2009-2014 dated 24.03.2011(ANN-P-III). As the goods were presented for examination before the said officers prior to 18.02.2011, the exports are not hit by the 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 operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de orders dated 04.05.2011 was pleased to permit the export of the skimmed milk powder in respect of the goods as were handed over to the Customs for export before the dead line i.e., 18.02.2011 as per the notification dated 24.03.2011 and the examination of the goods by the 'Excise Officer' were taken to be examination by the 'Customs Officer'. 20. It is further stated by the petitioner that in the case of M/s VRS Foods Ltd., the department did not file any appeal against the Orders dated 04.05.2011 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government hereby appoints the following persons to be the Officers of Customs, namely:- 1. Appraisers, Examiners, Superintendent Customs (Preventive), Preventive Officers, Women Searchers, Ministerial Officers and Class IV Officers in the Customs Department in any place in India. 2. Superintendents, Inspectors, Women Searchers, Ministerial staff and Class IV staff of Central Excise Department, who are for the time being posted to a Customs port, Customs airport, Land-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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms and Central Excise. All Commissioners of Customs and Central Excise (Appeals). Subject: Provision of single factory stuffing permission valid for all Customs Houses - regarding. Sir/Madam, I am directed to invite your attention to Board's instructions issued vide telex/letter F.No.434/47/95-Cus.IV, dated 9.10.95, Circular No. 90/98-Cus dated 8/12/98 and Circular No. 60/2001-CUS dated 1st November, 2001 regarding 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter the same were removed from the factory on the same very date and they were handed over at ICD Tuglakabad on 17.02.2011 (at 06:07 am and 06:06 am in two containers); 18.02.2011 (at 04.26 am and 04.26 am in two containers); 17.02.2011 (at 07:23 am and 11:49 am in two containers);19.02.2011 (at 2.47 am in one container). The defendant No.3 has also not denied that 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'. 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reparable loss and injury to the petitioner as the said goods cannot be re-used. It is also a fact that there is no loss of custom duty as admitted by the respondent No.3. Therefore, the balance of conveyance even otherwise lies in favour of the petitioner and against the respondents. The Division Bench judgment of Bombay High Court titled Parag Milk and Milk Products 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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