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TMI Blog2019 (3) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... the 10% of the invoice value. Upon satisfaction of the aforesaid conditions, the consignments shall be released forthwith. Waiver of demurrage charges incurred in respect of the detained consignments - Held that:- In the light of Rule 6(l) of the Handling of Cargo in Customs Areas Regulations, 2009, which provides that the Customs Cargo Provider shall not, subject to any other law for the time being in force, charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be, there shall be a waiver of demurrage charges. Petition disposed off. - WP. Nos.5598, 5601, 5604, 5781, 5785, 5790, 5795 & 5797 of 2019 And WMP. Nos.6371, 6373, 6376, 6607, 6611, 6615, 6622, 6627 of 2019 - - - Dated:- 1-3-2019 - Dr. Justice Anita Sumanth For the Petitioner : Mr.K.Mohanamurali in WP. Nos.5598, 5601 5604 of 2019 Mr.B.Mohan for Mr.P.Sidharthan in WP.Nos.5781, 5785, 5790, 5795 5797 of 2019 For the Respondents : Ms.Aparna Nandakumar, Central Government Standing Counsel in WP. Nos.5598, 5601, 5604 of 2019 Mr.S.Rajasekar, Standing Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e earliest matter in the batch came up on 15.02.2019 when learned standing counsel for the Revenue took notice as well as time to file a counter. Be that as it may, both sides have addressed the Court by way of detailed submissions, circulating relevant material as well as case-law in support of their contentions. 3. Mr.G.Rajagopalan, learned Assistant Solicitor General intervenes in the matter to urge that the Director General of Foreign Trade (DGFT), the entity that has issued certain relevant Notifications, be made a party to the Writ Petitions. However, since the Writ Petitioners seek only a mandamus and do not challenge the Notifications itself, I do not believe that the DGFT is a necessary party to the proceedings. In fact, these very petitioners before me have challenged Notification dated 25.04.2018 by way of Writ Petitions in W.P.Nos.15921 to 15924 of 2018; Notification dated 02.07.2018 in W.P.Nos.17387 to 17391, 19684 and 18840 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 man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be imported. The Policy condition was set out in paragraph 4 of the notification, extracted below: During the period from 01st April to 30th June 2018 total quantity of one lakh MT of yellow peas minus the quantity already imported from 01.04.2018 till date will be allowed against licence as per procedure to be notified by DGFT. Already Imported will include shipment already arrived from 01.04.2016 till 25.04.2018 and those shipments backed by Irrevocable Commercial Letter of Credit (ICLC) and Advance Payment made through Banking Channel before 25.04.2018. Both these categories will be required to be registered with Jurisdictional Regional Authority as per Para 1.05 of Foreign Trade Policy, 2015-20. 9. The second notification bearing No.15/2015-2020 was issued on 02.07.2018 for the period 1st July 2018 to 30th September, 2018 continuing the restriction for the subsequent three months as well. Again, vide Notification bearing No.37/2015-2020 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly not permitted to be cleared by the authorities. 13. The legal defence raised is that the imports would not be covered by the Notifications in question in so far as, for reckoning the date of import, it would be the date of Bill of Entry that would be relevant and not the date of Bill of Lading. 14. Learned counsels circulate an internal Instruction issued by the Directorate General of Foreign Trade dated 31.01.2019 referring to the dismissal of the Special Leave Petition (SLP) against the order of the Gujarat High Court and instructing all officers within India not to permit clearance of the goods. They also stress upon the fact that it was only by reason of the stay granted by the learned single Judge of this Court that several imported consignments have been permitted to be cleared. To this, learned counsels for the petitioners point out that the Calcutta High Court has accepted the challenge to the Notification in question vide its decision 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 learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of duty and tariff for the purpose of valuation of imported goods as the date of Bill of Entry, may not be relevant. 18. The Supreme Court, in the case of Union of India V. Asian Food Industries (supra), considered the validity of exports of certain consignments of pulses. The admitted position was that the transactions for exports had been negotiated and finalised by the petitioner at a time when the exports was permitted. While this is so, the Central Government took the decision to ban export of pulses. The aforesaid decision was reported widely in the media. But the notification banning the export was issued only later in exercise of power under section 5 of the Foreign Trade (Development and Regulation Act), 1992, under which the Government prohibited export of various goods for a period of six months from the date of notification. By the time the said notification came to the knowledge of the petitioner, the consignments were under shipment, but were detained upon arrival 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 vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted out in the aforesaid letter according to which palm seed is specially extracted from fruits while kernel is a product obtained after sterilisation, digestion at 95 Celsius, pressing, decarping, shelling etc. The Palm Kernel will lose its viability due to the above processes and cannot be used for germination. Under Appendix 5 Part (b) Item 5 of the Import Policy under the heading. Oils/seeds only Palm oil/Palm seeds have been mentioned. We agree with the view taken by the High Court in this regard that Palm Kernel cannot be included under the item palm seeds and the two commodities were different as understood in commerce or trade. We do not want to burden this judgment by citing those authorities which have already been considered for deciding this controversy by the High Court. We do not see any force in the contention of the learned Solicitor General in this regard that the government had only made a clarification vide Notification dated July 27, 1987 by introducing 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 Extraordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present cases as well. 4. 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. 5. The authorities are at liberty to initiate proceedings in respect of the transactions in question and if done, the petitioners shall appear, be heard and file their submissions pursuant to which orders shall be passed by the authorities in accordance with law. 6. The petitioners have also prayed for waiver of demurrage charges incurred in respect of the detained consignments. In the light of Rule 6(l) of the Handling of Cargo in Customs Areas Regulations, 2009, which provides that the Customs Cargo Provider shall not, subject to any other law for the time being in force, charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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