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TMI Blog2006 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... racts were executed between 22-4-2006 and 2-5-2006. It received US $ 294942 being approximately 20% of the contract amount by way of advance towards the said supply from the importers on 9-5-2006. Shipment of 20 containers out of the 107 containers consisting of 415 MT took place during the period between 22-6-2006 and 24-6-2006. The remaining 87 containers were cleared and Let Export Orders dated 23-6-2006, 24-6-2006 and 26-6-2006 were issued by the custom authorities at Kandla Port. Bills of lading were also issued therefor. 5. In the meanwhile, a purported decision was taken by the Central Government to ban export of pulses on 22-6-2006. The said decision is said to have been widely reported in the electronic media and print media, but the notification banning the export of pulses was issued by the Central Government only on 27-6-2006 in purported exercise of its power under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (for short "the 1992 Act") wherein the Central Government prohibited export of various goods mentioned therein for a period of six months from the said date, the relevant portion whereof reads as under : "S.O.(E) In exercise of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said para : Further the transitional arrangements notified under para 1.5 of the Foreign Trade Policy, 2006 shall not be applicable for export of pulses against irrevocable Letters of Credit opened on or after 22-6-2006 as the decision of the Government prohibiting the export of pulses was announced and got widely publicised on 22-6-2006 in the electronic and print media. 2.This issues in Public Interest." 8. The respondents, however, addressed various correspondences with the authorities to grant permission to shift the 87 containers of vessels in view of the notification dated 4-7-2006 but the same was refused. A writ petition questioning the said action on the part of the authorities filed by them in the Gujarat High Court has been allowed by reason of the impugned judgment. Fact Re : M/s. Agri Trade India Services P. Ltd. 9. M/s. Agri Trade India Services P. Ltd., Respondent No. 1 herein was awarded a contract by Trade Corporation of Pakistan for supply of 3000 MT of chick peas. An irrevocable letter of credit was opened in favour of the respondent on 24-6-2006. On 27-6-2006, the respondent filed shipping invoices and bill with customs authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its contents. Section 51 provides for clearance of goods for exportation in the following terms : "51. Clearance of goods for exportation. - Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation." 15. The Parliament also enacted the 1992 Act to provide for the development and regulation of foreign trade by facilitating imports into and augmenting exports from India and for matters connected therewith or incidental thereto. 16. "Export" has been defined to mean taking out of India any goods by land, sea or air. Section 3 of the 1992 Act empowers the Central Government to make provisions by order published in the Official Gazette for the development and regulation of foreign trade by facilitating imports and increasing exports. Sub-section (2) of Section 3 thereof empowers the Central Government to make provisions for prohibiting, restricting or otherwise regulating in all cases or in spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters. Paragraph 9.12 lays down the manner in which date of shipment/dispatch of exports would be reckoned. It inter alia provides : "However, wherever the Policy provisions have been modified to the disadvantage of the exporters, the same shall not be applicable to the consignments already handed over to the Customs for examination and subsequent exports upto the date of the Public Notice. Similarly, in such cases where the goods are handed over to the customs authorities before the expiry of the export obligation period but actual Exports take place after expiry of the export obligation period, such exports shall be considered within the export obligation period and taken towards fulfillment of export obligation." High Court Judgments 22. Whereas the Gujarat High Court invoking Paragraph 9.12 of the Handbook and having regard to the fact that the customs authorities cleared and permitted the loading of the goods and moreover the bill of lading had also been filed, opined that the respondents were entitled to export the goods in terms of the policy decision despite the said notification dated 27-6-2006, the Delhi High Court declared the notification dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed in terms of the 1992 Act. 27. The purport and object for which the 1992 Act was enacted was to make provision for the development and regulation of foreign trade inter alia by augmenting exports from India. While laying down a policy therefor, the Central Government, however, had been empowered to make provision for prohibiting, restricting or otherwise regulating export of goods. 28. Section 11 of the 1962 Act also provides for prohibition. When an order is issued under sub-section (3) of Section 3 of the 1992 Act, the export of goods would be deemed to be prohibited also under Section 11 of the 1962 Act and in relation thereto the provisions thereof shall also apply. 29. Indisputably,the power under Section 3 of the 1992 Act is required to be exercised in the manner provided for under Section 5 of the 1992 Act. The Central Government in exercise of the said power announced its Foreign Trade Policy for the years 2004-2009. It also exercised its power of amendment by issuing the notification dated 27-6-2006. Export of all commodities which were not earlier prohibited, therefore, was permissible till the said date. 30. Theimplementation of the said policy was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal Appraiser (Exports), Collectorate of Customs and Central Excise and Others v. Esajee Tayabally Kapasi, Calicut [(1995) 6 SCC 536] wherein this Court was concerned with the change in the rate of duty and in that context the construction of Sections 16(1), 39 and 51 of the 1962 Act fell for its consideration. In relation to the rate of duty it was held that the date of "entry outwards" would be the relevant date with reference to which the rate of custom duty on the exported duty is to be worked out. 38. In that case, the goods were cleared for a vessel known as S.S. Neils Maersk. However, for want of space therein goods were shut out. Necessary space for exporting those were secured in another vessel named S.S. P'Xilas wherefor fresh shipping bill was filed on 9-8-1996. It was in the peculiar fact of that case, this Court opined that the rate of export duty prevalent as on 9-8-1996 would be leviable stating : "...It becomes thus clear that the shipping bill as well as the ultimate entry outwards for the goods concerned sought to be exported must have reference to the vessel through which such goods are to be exported. Therefore, before any goods are exported out of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed therein, viz., the effect of failure to honour foreign contracts owing to change in law imposing ban on goods covered thereby whether would attract the plea of frustration of contract was not decided stating : "...This contention may have to be considered here or elsewhere, but, if we may anticipate our conclusion even here, this question is being skirted by us because the kismet of this case can be settled on other principles. The discipline of the judicial process forbids decisional adventures not necessary, even if desirable." 42. We may, however, notice that M/s. C. Damani (supra) was explained by this Court in State Trading Corporation of India Ltd. v . Union of India and Others [1994 Supp (3) SCC 40]. It is not necessary for us to advert thereto as the said judgment has no application in the instant case. 43. We are, however, not oblivious of the fact that in certain circumstances regulation may amount to prohibition. But, ordinarily the word "regulate" would mean to control or to adjust by rule or to subject to governing principles [See U.P. Cooperative Cane Unions Federations v. West U.P. Sugar Mills Association and Others [(2004) 5 SCC 430] whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notification dated 4-7-2006 could not have been taken into consideration on the basis of the purported publicity made in the proposed change in the export policy in electronic or print media. Prohibition promulgated by a statutory order in terms of Section 5 read with the relevant provisions of the policy decision in the light of sub-section (2) of Section 3 of the 1992 Act can only have a prospective effect. By reason of a policy, a vested or accrued right cannot be taken away. Such a right, therefore, cannot a fortiori be taken away by an amendment thereof. 49. In construingsuch a prohibitory order, whereas the rule of strict construction must be followed, the interpretation which subserves the intention of the Central Government as laid down in the policy as well as in the procedure should be given effect to. A statute as is well known may have to be construed in the light of the subordinate legislations framed thereunder. When subordinate legislation has been framed by the same authority which exercises the power under the policy, the intention of such policy maker must be found out from the words used therein albeit having regard to the rights of the exporters which a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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