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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 ..... 01.2019, BLPLRGN1900126 dated 20.01.2019, BLPLRGN1900084 dated 20.01.2019, VSSIN13342 dated 25.01.2019, VSSIN13339 dated 25.01.2019, YGN/MAA/190110 dated 25.01.2019, YGN/MAA/190109 dated 25.01.2019 and YGN/MAA/190111 dated 25.01.2019 in terms of the orders of this Court in W.M.P. No.28263 to 28265 of 2018 in W.P. Nos.24249 of 2018 dated 17.09.2018 containing 'Peas' and 'Dhall' and a further direction to the respondents to issue a 'Detention Certificate' for waiver of Demurrage and Container Detention Charges in terms of Regulation 6(1)(l) of Handling of Cargo in Customs Areas Regulations 2009. 2. The identical issue as arising in these Writ Petitions has been considered by me vide my order dated 27.02.2019 in W.P.No.4403 of 2019 (batch) in the case of M/s.Royal Impex V. Commissioner of Customs. The aforesaid order is applicable to the present cases on all fours. The entire order is extracted herein for the sake of clarity: "Sixty Six (66) petitioners are before this Court seeking issuance of a writ of mandamus to the respondents to release consignments of 'Peas' and 'Dhall' imported by the petitioner under the Bills of Entry in terms of earlier orders of this Court and further d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.) Hepper or Vigna radiata (L.) Wilczek. 6. The petitioners in W.P.Nos. 4721, 4726, 5107, 5079, 5167, 5137, 5088, 5091, 5102, 5098, 5117, 5108, 4826, 4830, 4932, 4990, 4993, 4956, 4961, 4964, 4908, 5323, 5335, 5340, 5344, 5348, 5357, 5359, 5388, 5400, 5390, 5390 and 4428 of 2019 are importers of dhalls and the petitioners in W.P.Nos.4403, 5041, 5043, 5046, 5048, 5084, 5093, 4985, 4432, 4417, 5112, 5119, 5101, 5113, 4712, 4719, 4722, 4838, 4941, 4926, 4923, 4916, 4912, 5332, 5339, 5342, 5345, 5379, 5385, 5383, 5370 and 5377 of 2019 are importers of different varieties of peas. 7. The import of both products has been subject to restriction placed by the Customs authorities under a series of notifications issued from April 2018 onwards in the case of peas and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite 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. Tarapada Dey and others ((1987) 4 SCC 398) iv. Gursharan Singh and others V. New Delhi Municipal Committee and others ((1996) 2 SCC 459) 11. The respondents, for their part, draw support from the Policy of the Government to restrict imports of products available indigenously in order to encourage local farmers. The Notifications, according to them, echo the aforesaid Policy decision and have been issued only to advance the object and rationale of the policy itself. Accordingly, they would urge that this Court should take into account the fact that if clearance of the imported consignments is permitted, small farmers would be greatly prejudiced and negatively impacted. 12. Learned counsels also point out that the Notifications in question had been the subject of challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 26464, 26471, 26475, 26479, 27319, 27327, 27336, 27370 of 2018. A learned Single Judge of this Court has stayed the operation of the Notification in question and such order of stay was valid and in subsistence at the time when the imports, have been made. (iii) The liability to duty of the goods in question is as follows: Yellow Peas, Green Peas, Dun Peas, Kaspa Peas: 50% Pigeon Peas/ Toor Dal : 10% Urad Dal and Moong Dal : Nil 16. The limited questions that I am called upon to consider in the light of the admitted facts as above, are twofold: (i) Whether the relevant date for the reckoning the date of the imports would be the date of Bill of Lading or Bill of Entry; (ii) Whether there is any embargo on the import of the consignments of dhalls in the present cases; (iii) Whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-`-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 Delhi High Court, however, in our view correctly opined that the notification dated 4.07.2006 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. 18. In the case of Priyanka Overseas Private Ltd. And another V. Union of India and others, the Supreme Court held as follows: 31.We have given our careful consideration to the arguments adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 various dated i.e. On June 26, 1987 and July 25, 1987. It is no longer in dispute that if the Palm Kernel was not a canalised item before July 27, 1987 then it could have been imported under the OGL before that date. The crucial dates in this regard are June 26, 1987 and July 25, 1987 when the goods were actually loaded in the ship and not the date of arrival of the ship in the territorial waters of India. (emphasis by underlining, mine) 21. In the light of the above, the relevant date for reckoning the import of the consignments of peas is the date of Bill of Lading. 22. Some submissions have been made on the merits of the challenge to the notifications itself. However, insofar as the Writ Petitions challenging notifications are, admittedly, pending decision before another learned single Judge of this Court, I consciously refra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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