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TMI Blog2006 (9) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No.19 (RE-2006) 2004-2009 dated 4/7/2006 passed by respondent No.2 giving retrospective effect to the Notification No.15(RE-2006) 2004-09 dated 27/6/2006 and No.17(RE-2006) 2004-09 dated 3/7/2006 w.e.f. 22/6/2006, holding that the said Notifications are illegal, unjust, bad in law, against the provisions of settled principles of law, discriminative, violative of Article 14 of the Constitution of India, contrary to principles of natural justice, and also contrary to the provisions of General Clauses Act,1897, as the said Notification cannot be made operative with retrospective effect when principal Act does not provide the same, in view of the judgment of Hon'ble Supreme Court as well as for the reasons stated in the memo of this petition; (B) Your Lordships be pleased to issue an appropriate writ, order and/or direction which Your Lordships may deem fit, and quash and set aside the letter dated 28/6/2006 and 11/7/2006 issued by the respondent No.3 and 4 as the same are also against the provisions of law and against the judgment of Hon'ble Supreme Court; (C) Pending admission and till final disposal of this petition, Your Lordships be pleased to grant stay of operation, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned therein for a period of six months from the date of issuance of the said Notification. It is the say of the petitioner that vide entries pertaining to Lentils and Tur (Arhar) the other consignments which are ready to be shipped are covered apparently, but for the reasons urged the prohibition would not apply to the case of the petitioner. Vide Notification dated 3/7/2006 the period of ban under earlier Notification dated 27/6/2006 came to be extended up to 31/3/2007. However, vide another Notification dated 4/7/2006 (impugned Notification) the earlier Notification dated 27/6/2006 has been amended so as to give retrospective effect with effect from 22/6/2006 on the ground that the announcement regarding the decision of the Government to impose ban/prohibition of the items mentioned in the Notification had received wide publicity in the print and electronic media on 22/6/2006. Respondent No.4 therefore vide communication dated 11/7/2006 has conveyed the decision of Commissioner of Customs, Kandla and stated that only export consignments which were handed over to Customs up to 22/2/2006 would be allowed and in relation to export consignments which were handed over to Customs f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hence was not entitled to any relief. 5.1 Referring to paragraph No.9.12 of the Handbook of Procedures it was submitted that the opening portion of the said paragraph specifically talked of reckoning date of shipment/dispatch for the purpose of export and thus disadvantage could only be in relation to the advantages specified in Chapter Nos. 4 and 5 of the Foreign Trade Policy. That no other disadvantage like suffering of damages etc. on frustration of the contract would form a valid ground to carve out an exception. He submitted that the decision rendered by the High Court of Delhi on 18/8/2006 in W.P.(C) 11691-11692/2006 CM 8807/2006= 2006(204) E.L.T. 161 (Del.)between Agri Trade India Services Pvt. Ltd. and Union of India and others was also therefore not applicable on the facts of the case. 6. Mr.R.M.Chhaya, learned Counsel appearing on behalf of respondent Nos. 3 and 4 has supported the stand of the respondent authorities. However, to a pointed query as to whether the consignments which were handed over to the Customs Authorities for examination had been cleared, he referred to the affidavit-in-reply to submit that the consignments had been received for exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary for the present reads as under : "9.12 Date of shipment/despatch for the purposes of exports will be reckoned as under :- Mode of Dae of Shipment/Dispatch. Transportation. (i) By Sea xxx xxx xxx xxx (ii) By Air xxx xxx xxx xxx (iii) By Post Parcel xxx xxx xxx xxx (iv) By Rail xxx xxx xxx xxx (v) By registered Courier Service xxx xxx xxx xxx (vi) By Road. xxx xxx xxx xxx 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. 11. Thus, on a plain reading paragraph No. 9.12 provides for different dates of shipment/dispatch depending on the mode of transportation, but a general exception is carved out which stipulates that wherever 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. 12. The submission that the phrase "disadvantage of the exp ..... 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