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TMI Blog2011 (12) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of its issue, and states the period of shipment. Hence its validity should be from the date of its issue, and not from the date of the relevant airway bill. The purport of clause 2.12.2 readwith clause 9.11A of Handbook of Procedure of Foreign Trade Policy 2009-14, is only to say that the import made under an import license shall be construed as valid with reference to the date of shipment/despatch of goods from the supplying country, and not by reference to the date of arrival of the goods at the Indian port. Clause 2.13 of handbook of procedure clearly permits the revalidation of the import license for upto six months from the date of expiry of its validity. Writ petition is allowed. - W.P.(C.) No. 1137/2011 & C.M. No. 7613/2011 - - - Dated:- 8-12-2011 - MR. JUSTICE VIPIN SANGHI Represented By: Mr. Rohit Priya Ranjan, Advocate. For Petitioner Mr. A.S. Chandhiok, ASG along with Mr.Jatan Singh, CGSC and Mr.Ritesh Kumar, Mr. Piyush Sanghi, Mr.Sumit Goyal Mr. Prashant Ghai, Advocates. For Respondents JUDGMENT VIPIN SANGHI, J. 1. The petitioner has preferred the present writ petition under Article 226 of the Constitution of India to seek the quas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity. The health status of these horses was doubted as pre-import requirements were not properly certified and lacked authenticity. It was stated that keeping in view the national health security, the consignment cannot be allowed to enter the country. He stated that the same be deported to the country of origin immediately without any further delay. 5. The petitioner, aggrieved by the said communication, preferred W.P.(C.) No. 6603/2010 before this Court. The said writ petition was dismissed by the learned Single-Judge of this Court vide order dated 08.10.2010. The Court held that as long as the place of origin of the three horses imported by the petitioner is Austria, the essential condition of the import license, that the three imported horses should be from Australia, cannot be said to be satisfied. The Court held that this fact cannot be changed merely because the horses had been registered with the Australian Warmblood Horse Association Limited. Since the aforesaid essential condition of the license, namely, the place of origin of the horses was not satisfied, it was held that the Court could not issue a direction to the respondents to allow the three horses in question to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch need to be taken note of. The Additional Commissioner of Customs passed the order in Original No. 17/2010 on 27.10.2010. By this order, the declared value of the goods was rejected under Rule 12 of the Valuation Rules, 2007. The value of the horses were re-assessed as US$ 10,000/- each (FOB). The total assessable value of goods was assessed as Rs.16,73,560/-. The Additional Commissioner of Customs ordered the confiscation of the three horses under Section 111 (d) (m) of the Customs Act, 1962. Since the goods could not be allowed clearance for home consumption, the petitioner was allowed to re-export the same on payment of redemption fine of Rs.3,00,000/-. A penalty of Rs.50,000/- was imposed on the petitioner s mother considering that he was a minor, under Section 112 (a) of the Customs Act. A further penalty of Rs.1,00,000/- was imposed on one Sh. Kapil Modi under Section 112 (a) of the Customs Act. 9. The Celebi Delhi Cargo Terminal Management India Private Limited (hereinafter referred to as the CELEBI) to whom the three horses were handed over, filed W.P.(C.) No. 7998/2010 with the grievance that the respondents namely the Department of Animal Husbandry, Dairying and Fis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the petitioner s application for amendment of the import license has been passed without application of mind. The petitioner contends that the respondents are hell bent, not to allow the petitioner to take the horses. Reliance is placed on the Handbook of Procedure of Foreign Trade Policy 2009-14, clause 2.13 whereof provides that the RA concerned may re-validate an import authorization on merits, for six months from the date of expiry of validity. 12. Learned counsel for the petitioner submits that clause 2.12.2 of the said handbook provides that the validity of an import authorization is decided with reference to the date of shipment/despatch of goods from supplying country as given in para 9.11A, and not the date of arrival of the goods at the Indian port. The date of shipment/despatch when the mode of transportation is by air, like in the present case, is the date of relevant airway bill. He submits that since the airway bill in the present case represents the date on which the goods, namely, the horses, left the last airport in the country from which the import was effected, the date of shipment in the present case would be 08.09.2010. Learned counsel submits that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re presently negative for Contagious Equine Metritis (CEM) . 16. The petitioner further submits that respondent no.2, i.e. Department of Animal Husbandry, Diaries and Fisheries has issued a notification dated 07.05.2010, whereunder the import of horses from CEM infected country is allowed/permitted. On the basis of this recommendation of respondent no.2 contained in the said notification, respondent no.1 DGFT has issued import license to number of importers to import horses from CEM infected countries, such as Germany, USA etc. A copy of the said notification has been placed on record. This notification, inter alia, provides: (c) If the horses come from the Contagious Equine Metritis infected country, import is allowed on the following conditions; (i) males up to seven years and female up to five years of age which have not been mated, or (ii) the breeding horses that have mated and pregnant mares comes from an establishment which has been free from Contagious Equine Metritis for at least three years : 17. It further provides: 4. Post Import Quarantine: After import in India, the animal shall be kept in quarantine for a minimum period of thirty days at the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no reason to deny the same since horses have regularly been imported from Austria/Germany in the recent past as well. 21. So far as the allegation of the respondent that the certificate issued by Dr. Erdmann is not valid, as he is not the official veteranian, learned counsel submits that the same doctor has been issuing certificates in the past for import of horses into India, and such certificates have been accepted by the respondents. He submits that there was no way that the petitioner could have known whether Dr. Erdmann had been authorized to issue the certificates, or not. He submits that, in any event, the horses have been repeatedly been tested for presence of various diseases including CEM, and they do not have any such disease. 22. On the other hand, the submission of learned counsel for the respondent DGFT is that, the validity of the license having expired on 25.11.2010, the application for amendment could not even be considered as it was filed after the said expiry on 09.12.2010. It is also argued that the petitioner is merely a facade and the real importer is someone else who is carrying on a commercial activity by importing such livestock. It is argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual import, even though the license may have been issued nearly two years prior to the actual date of import, and even though the import license explicitly gives the period of its validity as 24 months. It is, therefore, clear that the petitioners case did require extension of the validity of the import license. 26. However, there is no reason given by the respondents as to why the petitioner s case did not warrant favorable consideration for extension of the validity of the import license and its amendment. Pertinently, the petitioner had been litigating for the release of the horses since September 2010. The application of amendment of import license was made by the petitioner after making a statement before the Division Bench in LPA No.851/2010 that the petitioner would seek an amendment. This statement was made on 03.12.2010, and the application appears to have been made on 04.12.2010 itself. Even if the license originally issued expired on 25.11.2010, there was hardly a delay of about ten days in making of the application. 27. Clause 2.13 of handbook of procedure clearly permits the revalidation of the import license for upto six months from the date of expiry of its vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been aware of the aforesaid position while considering the petitioners application to seek amendment of the original import license by inclusion of Austria/Germany as the country of origin. 31. Reliance placed by learned counsel for the respondent on the communication dated 22.09.2010 issued by the Federal Ministry of Health, Austria, no doubt, shows that Dr. Erdmann was not officially approved to issue certificates on behalf of the Republic of Austria. However, this certificate also shows that Dr. Erdmann, who denied having issued the certificates for export of the horses to India, as a matter of fact, accompanied the said horses while they were being transferred from Frankfurt, Germany to India. His statement that he has not issued the certificate has to be taken with a pinch of salt, and appears to be an attempt on his part to save his skin from the German Authorities. 32. The Commissioner of Customs (Appeals) has already held in his order dated 29.04.2011 that the adjudicating authority should explore the possibility whether the horses can be released for home consumption, on payment of fine, penalty and duty, and subject to fulfillment of conditions as per law, and on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for home consumption, subject to the various conditions detailed hereinafter. 36. The petitioner must take full responsibility for irregularly importing the horses from Austria/Germany. The import license was valid for import from Australia. For this irregularity, the petitioner has already been subjected to fine and penalty by the customs authorities. The petitioner has not been able to undertake delivery of the horses while, at the same time, he has had to maintain the same in quarantine. 37. These horses have been tested and have been found to be perfectly healthy. I fully agree with the view of S. Muralidhar, J. in W.P.(C.) No.6603/2010 that the requirement of quarantine department is not negotiable. However, the petitioner has shown that the import of horses from Austria/Germany has been undertaken and permitted in the past. Not only civilians, even the Army has imported horses and mules from these countries. Import is permitted even from countries which are CEM positive, subject to tests and conditions. There is no reason, not to permit the import of these horses if they satisfy the tests and conditions laid down para-4 in the notification dated 07.05.2010 referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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