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TMI Blog2019 (3) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by me in paragraph 15 of this order and bearing in mind the balance of convenience in the present case, the consignments in question are liable to be released, though conditionally - The petitioners will remit the entire duty component of the consignments imported by them in cases were such duty is leviable as per paragraph 15(iii) above along with a bank guarantee for the 10% of the invoice value. In cases where the duty impact is neutral, the petitioners shall furnish a bank guarantee for the 10% of the invoice value. Upon satisfaction of the aforesaid conditions, the consignments shall be released forthwith. The authorities are at liberty to initiate proceedings in respect of the transactions in question - petition disposed off. - W.P.Nos. 4403, 4417, 4428, 4432, 4712, 4719, 4721, 4722, 4726, 4826, 4830, 4838, 4908, 4912, 4916, 4923, 4926, 4932, 4941, 4956, 4961, 4964, 4985 of 2019 & connected WMPs. - - - Dated:- 27-2-2019 - Dr.Justice Anita Sumanth W.P.Nos. 4990, 4993, 5041, 5043, 5046, 5048, 5079, 5084, 5088, 5091, 5093, 5098, 5101, 5102, 5107, 5108, 5112, 5113, 5117, 5119, 5137, 5167, 5323, 5332, 5335, 5339, 5340, 5342, 5344, 5345, 5348, 5357, 5359, 5370, 5379 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40 of 2018; Notifications dated 05.08.2017, 21.08.2017 and 04.05.2018 in W.P.Nos.21454, 21455 and 26486 of 2018 and Notification dated 28.09.2018 in W.P.Nos.26440 and 26433 of 2018 wherein the DGFT has, rightly, been made a party. 4. The mandamus sought before me is based on the strength of the interim stay granted by this Court and admittedly in force at time when the consignments in question have been imported. The entire batch of Writ Petitions filed challenging Notification Nos.04/2015-20 dated 25.04.2018, 15/2015-2020 dated 02.07.2018, 19/2015-20 dated 05.08.2017, 22/2015-20 dated 21.08.2017, 06/2015-20 dated 04.05.2018 and 37/2015-20 dated 28.09.2018 has been heard by a learned single Judge of this Court and orders have been reserved on 09.01.2019. 5. The facts in relation to all the above Writ Petitions are more or less uniform and the defence put forth by the respondents is also the same in all cases. The petitioners are importers of two kinds of products (i) various varieties of peas such as Yellow Peas, Green Peas, Dun Peas, Kaspa Peas, Pigeon Peas (Cajanus Cajan), and (ii) dhalls, being Toor, Moong and Urad Dhall (Black Matpe) (Beans of the species Vigna mungo (L.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-2020 dated 28.09.2018 the restriction was continued for the period 01.10.2018 to 31.12.2018. 10. The Writ Petitioners are concerned with imports effected during the period of Notification dated 28.09.2018, in the case of peas, and pursuant to Notification 04.05.2018, in the case of dhalls. The case of the petitioners is that the transactions of imports had crystallised even prior to the date of the relevant Notifications. The dates of shipment/date of bills of lading in all cases is between the period 01.10.2018 and 31.12.2018. Similar/identical consignments that had been shipped and imported during the period in question have been permitted to be cleared by the customs authorities. However, the authorities have illegally detained the present consignments in spite of there being a stay of operation of the Notifications in question having been granted by this Court. The petitioners rely on the following judgments of the Supreme Court in support of their arguments. i) Union of India V. Asian Food Industries (2006 (204) ELT 8 (SC)) ii) Priyanka Overseas Private Ltd. And another V. Union of India and others ((1991) SUPP 1 SCC 102) iii) Rajkumar Dey and others V. Tara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Sanmarg Pvt. Ltd. Vs. Union of India [2019 (365) E.L.T. 273 (Cal)] and the aforesaid decision have not been challenged by the Revenue. A copy of the aforesaid decision is placed on record. 15. Heard learned counsel. The relevant facts that are admitted before me are: (i) In the case of import of peas, substantially all imports in question are covered by Bills of Lading drawn between the dates of 01.10.2018 and 31.12.2019. There are however, a few instances where the Bills of Lading have been drawn after 01.01.2019 in which event this Order would not be applicable. This order will be applicable, in the case of imports of peas, only in respect of those consignments covered under Bills of Lading during the period 01.10.2018 to 31.12.2018. As far as import of consignments of dhalls are concerned, since the notification did not stipulate any time period, this restriction will not apply to the Writ Petitions filed in cases of imports of dhalls. (ii) Some petitioners before me have challenged Notification bearing No.37/2015-2020 dated 28.09.2018 applicable for the period 01.10.2018 to 31.12.2018 by way of Writ Petitions in W.P.Nos.26433, 26440, 26495, 27056, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ival by the customs authorities, who were of the view that the consignments were prohibited in the light of the notification issued. In the aforesaid circumstances, the Delhi High Court had expressed a view in favour of the customer. The view was affirmed by Supreme Court holding that a vested or accrued right cannot be taken away by reason of a policy. The relevant portions of the judgment are extracted below: 33. The scheme of the Foreign Trade Policy postulates that when the policy provisions are amended which are disadvantageous to the exporters, the modification would not be attracted........... 36. Different stages for the purpose of the said Act would, therefore, be different. For interpretation of the provisions of the 1992 Act and the policy laid down as also the procedures framed thereunder vis-`- vis the provisions of the 1962 Act, the rate of custom duty has no relevance. What would be relevant for the said purpose would be actual permission of the proper officer granting clearance and loading of the goods for exportation. As soon as such permission is granted, the procedures laid down for export must be held to have been complied with............. 48. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in Appendix 5 Part (b) Item No.5 all other oils/seeds/any other material from which oil can be extracted . It is significant that in the aforesaid notification published in the Gazette of India Extraordinary para (1) Section 121, it was clearly mentioned that the same was issued as an amendment to the earlier Notice No.1-ITC (PN)/85- 88 dated April 12, 1985. The notification stated that the following amendment shall be made in the Policy at proper places indicated below and then under the head amendment the new provision which included all other seeds from which oil can be extracted was mentioned. It is therefore evident that the government of India itself, realised the difference in the two commodities therefore it amended its previous policy. We are therefore of the opinion that prior to July 27, 1987 'Palm Kernel was not a canlised item and the High Court rightly held that 'Palm Kernel' was not included with in the entry of 'palm seed'. Since 'Palm Kernel' was not included within 'palm seed' the customs authorities had no legal justification to confiscate or impose redemption fine, or penalty, as the goods had already been shipped on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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