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TMI Blog2019 (4) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... that the DGFT has done is to make the amendments in the import policy of peas under Chapter 7 of the ITC(HS), 2017, Schedule 1 (Import Policy). The second contention is that there was a restriction imposed by Notification No.15/2015-2020 dated 2nd July, 2018 on import of peas, but that was withdrawn by the second respondent by notification of 29th August, 2018. In view thereof, there is no restriction in force during the period 1st July, 2018 to 29th August, 2018 and the purported restriction was imposed only from 30th August, 2018. At the time of the import of goods i.e. on 28th August, 2018, no restriction was prevailing and not permitting clearance of imported goods is unsustainable. Once the notification of 25th April, 2018 is extended till 30th September, 2018 and the notification of 29th August, 2018 not wiping out the restriction as projected, but promptly restoring the earlier notifications and continuing the restriction till 30th September, 2018, further extending it by the notification at Exhibit B till 31st December, 2018, makes the position clear. There was a restriction and insofar as that notification continuing the restriction till 30th September, 2018 havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercising powers conferred upon him under the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as the FTDR Act ) and the Foreign Trade (Development and Regulation) Rules, 1993 (hereinafter referred to as the FTDR Rules ). Respondent nos. 3 and 4 are officers of respondent no.1 discharging duties and exercising powers conferred upon them under the Customs Act, 1962 and the rules framed thereunder. 5. In the ordinary course of its business, the petitioner entered into Sales Contract No. CS0001083 dated 19.04.2018 for supply of 30,000 MTS (+/- 10% at the Seller s option) of Whole Yellow or Green Peas falling under Exim Code 0713 1000 packed in bulk containers of foreign origin through their overseas supplier M/s ILTA Agribusiness DMCC, Dubai. The terms of the said contract require part sale consideration payment in advance and the balance payment in Cash against documents through petitioner s bank at site. 6. In terms of the said Sales Contract No. CS0001083 dated 19.04.2018, the petitioner has already paid 60,000 USD to ILTA DMCC, Dubai on 20th April, 2018. In the meantime, respondent no. 2 issued Notification No.04/2015-2020 dated 25th April, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the goods are presently lying at the bonded warehouse. The petitioner had to warehouse the goods to prevent further demurrage and detention charges. 14. Even the appraising officer has taken the same stand and now the petitioner is stuck and the goods cannot be claimed by it for home consumption. 15. The petitioner maintains that there was no restriction on peas import from 1 st July, 2018 till 29 th August, 2018 and import of peas with bills of lading on and between these dates should be allowed to be cleared by the Customs and the Directorate General of Foreign Trade (hereinafter referred to as DGFT ). 16. The petitioner has been representing its case by inviting the attention of the authorities to orders of various High Courts staying the impugned notification. The petitioner is, thus, not allowed the clearance of the imported goods until it provides the SIL. This is the understanding of the respondents and they believe that without this licence, the import of imported goods, which is restricted by the above notifications, is impermissible in law. 17. It is the above actions which are challenged in this petition on several grounds. The grounds are enumerated at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Government is required to strike a balance between the interests of domestic producers and importers. Whenever it is observed that large imports of an item are adversely impacting the interest of the domestic producers, due to fall in prices in the local market, the Government in consultation with all the stakeholders tries to protect the interests of the domestic producers by way of putting various kind of restrictions viz. port restrictions, imposition of Minimum Import Price (MIP) and Quota Restrictions. 10. I say that the considering that despite imposition of import duty of 60% and reward of 7% under MEIS, the average domestic prices of gram in major producing states namely M.P., Maharashtra and Karnataka were ruling below MSP of ₹ 4400/quintal and that the current average domestic prices of gram in M.P., Maharashtra and Karnataka were ₹ 3452/quintal, ₹ 3425/quintal and ₹ 3662/quintal respectively, which was leading to considerable distress among Chana/Gram growing farmers in these states the government was constrained to take steps to soothe the farming community. 11. I say that the Government also noted that flour of peas/yellow pea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 dated 5th July, 2018 decided to allow imports of Peas under Exim Code 0713 1000 against advance payments for that much quantity proportional to the part advance payment made before 25-04-2018. 16. I say that the considering that the clarification on inclusion or all kind of peas under 07131000 was issued on 165-2018, the issue as to how to treat the peas (other than Yellow Peas) imported during the period 25-4-2018 to 15-5-2018 was clarified vide Trade Notice No.21/2018-19 dated 6th July, 2018 that consignment of peas (other than Yellow peas) imported during the period 25-4-2018 to 15-05-2018 and awaiting clearance at Customs or consignments of peas (other than Yellow peas) with Bill of Lading is prior to 16-5-2018 are permitted freely. 17. Further, considering the representations/applications from various small importers, the Government vide Trade Notice No.25/2018-19 dated 17th August, 2018 decided to allow import of minimum 125 MT (5 FCL) of Peas (under Exim Code 0713 10 00) per contract or less (entire quantity as applied), irrespective of the advance payment made before 25-04-2018. 18. I say that the above sequence of events amply clarifies that despite the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal validity period of an irrevocable commercial letter of credit, established before the date of imposition of such restriction. The condition that the shipment should be covered by irrevocable letter of credit is dispensed with in the revised paragraph 1.05(b). The revised paragraph 1.05(b) permits the import of restricted/prohibited/state trading or 'otherwise regulated' goods if the import/export already made before the date of such regulation/restriction will not be affected. If the date of import/export is earlier, then, the restriction is inapplicable. The date of import/export is defined in para 2.17 of the FTP 2015-2020. 23. Mr. Shah submits that the Bill of Lading in the present case is dated 28.08.2018. The restriction is imposed on 30.08.2018. The petitioner is covered by the revised paragraph 1.05(b) of the FTP. Thus, in the present case the Bill of Lading of the goods imported by the petitioner is prior to the imposition of restriction. 24. Mr.Shah further submits that this Hon'ble Court in its judgment dated 03.07.2018 passed in Writ Petition (Lodging) No.1810 of 2018, in the case of Taj Agro Commodities Private Limited Versus Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew Delhi. Notification No.32/2015-2020 Dated the 30th August, 2018 Subject:- Amendment in the import policy of Peas under Chapter 7 of the ITC (HS) 2017, Schedule-I (Import Policy). S.O.(E) : In exercise of powers conferred by Section 3 of FT (D R) Act, 1992, read with paragraph 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, the Central Government hereby, makes the following amendment in ITC (HS) 2017, Schedule I (Import Policy): Import of Peas classified under Exim Code 0713 10 00 (including Yellow peas, Green peas, Dun peas and Kaspa peas) is Restricted till 30.09.2018. Effect of this Notification: Import of Peas classified under Exim Code 0713 10 00 (including Yellow peas, Green peas, Dun peas and Kaspa peas) is Restricted till 30.09.2018. This issues with the approval of the Commerce and Industry Minister. (ALOK VARDHAN CHATURVEDI) Director General of Foreign Trade Ex-Officio Additional Secretary to the Government of India Email: [email protected] 31. A perusal of this notification reveals that there is an amendment in the import policy of peas and import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Restricted for the period from 01st April to 30th June, 2018 and subject to Policy Condition 4 of this Chapter Policy Condition 4 : 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 license as per procedure to be notified by DGFT. Already Imported will include shipment already arrived from 01.04.2018 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. 2. Effect of this Notification : Import policy of Yellow Peas under Exim Code 0713 1000 is revised from free' to 'restricted' for a period of three month only. (Alok Vardhan Chaturvedi) Director General of Foreign Trade Email: [email protected] 35. A perusal of this notification would reveal that the existing policy made the import free. Thus, import of peas was free and the revised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to register the Letter of Credit with jurisdictional Regional Authority (RA) against computerized receipt, within 15 days of the imposition of any such restriction or regulation. (b) Item wise Import/Export Policy is delineated in the ITC (HS) Schedule I and Schedule II respectively. The importability/ exportability of a particular item is governed by the policy as on the date of import/export. The date of import/export is defined in para 2.17 of HBP, 2015-20. Bill of Lading and Shipping Bill are the key documents for deciding the date of import and export respectively. In case of change of policy from free' to 'restricted/prohibited/state trading' or 'otherwise regulated', the import/export already made before the date of such regulation/ restriction will not be affected. However the import through High Sea sales will not be covered under this facility. Further, the import/export on or after the date of such regulation/ restriction will be allowed for importer/ exporter has a commitment through Irrevocable Commercial Letter of Credit (ICLC) before the date of imposition of such restriction/regulation and shall be limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.09.2018, is withdrawn. (ALOK VARDHAN CHATURVEDI) Director General of Foreign Trade Ex-Officio Additional Secretary to the Government of India Email: [email protected] 37. Hence, the argument of Mr.Shah is that the petitioner has imported Green Peas from Canada. Having forwarded all the documents and considering the cumulative impact of the notification, it is evident that the restriction up to 30th September, 2018 issued by the notification dated 2nd July, 2018 was withdrawn and then reinstated by notification dated 30th August, 2018. In other words, there was no restriction on import of peas from 1st July, 2018 to 29th August, 2018. Therefore, all consignments of peas with bill of lading on and between 1st July, 2018 till 29th August, 2018 have to be allowed to be cleared by the Customs and the DGFT. 38. On the other hand, it is argued that the petitioner s contention is totally incorrect and that there was a restriction insofar as import of peas from 1st July, 2018 to 29th August, 2018. 39. If we consider the factual position, the sales contract in this case is dated 19th April, 2018 and the petitioner claims to have made payment of 60,000 USD on 20t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and increasing exports. The Central Government, by sub-section (2) is empowered to make provision for prohibiting, restricting or otherwise regulating in all cases or in specified classes of cases and subject to such exception, if any, as may be made by or under the order, the import or export of goods or services or technology. Sub-section (3) says that all goods to which any order under sub-section (2) applies shall be deemed to be goods, the import or export of which has been prohibited under section 11 of the Customs Act, 1962, and all the provisions of that Act shall have effect accordingly. Then, sub-section (4) says that without prejudice to anything contained in any other law, rule, regulation, notification or order, no permit or licence shall be necessary for import or export of any goods, nor any goods shall be prohibited for import or export except, as may be required under this Act or rules or orders made thereunder. Thus, by sub-section (2) of section 3, there is a power conferred in the Central Government to publish an order making prohibition or prohibiting or otherwise regulating the import or export of goods or services or technology. This can be subject to exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any such restriction or regulation. 36. A perusal of this para would indicate as to how clause (a) provides for continuation of a licence/authorisation, certificate etc bestowing financial or fiscal benefit issued commencement of FTP, 2015-20. Clause (b) says that in case of an export or import that is permitted freely under FTP is subsequently subjected to any restriction or regulation, such export or import will ordinarily be permitted, notwithstanding such restriction or regulation, unless otherwise stipulated. This is subject to the condition that the shipment of export or import is made within the original validity period of an irrevocable commercial letter of credit, established before the date of imposition of such restriction and it shall be restricted to the balance value and quantity available and time period of such irrevocable letter of credit. For operationalising such irrevocable letter of credit, the applicant shall have to register the Letter of Credit with jurisdictional Regional Authority (RA) against computerized receipt within 15 days of the imposition of any such restriction or regulation. 43. Then, para 37 onwards, this court referred to the restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o restriction on import of peas till 28th August, 2018. That is incorrect. On the date of shipment of goods on 28th August, 2018, there was indeed a restriction and the restriction has been withdrawn only on 29th August, 2018 (see Exhibit I at page 39). The withdrawal cannot be made effective from a date prior to the date of this Notification No. 31 dated 29th August, 2018. it is clear that this notification was issued in pursuance of an order that was passed by the High Court of Judicature at Madras and the issue that was considered in those matters has been referred by the respondents in their affidavit. They have pointed out that there was a restriction already in place and which was extended by Notification No.15 dated 2nd July, 2018 till 30th September, 2018. There were orders of the High Court of Judicature at Madras and which are referred to in para 20 of this affidavit. It is clarified that Notification No.31 dated 29th August, 2018 was issued purely on technical reasons. That is simply because a confusion was sought to be created and that confusion has been cleared by issuance of Trade Notice No.29 dated 30th August, 2018 (see para 21 of the affidavit in reply at running ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notification dated 30th August, 2018 bearing No.32, copy of which is at Exhibit A , the restriction is again restored and the date till which it was to continue is the same, namely, 30th September, 2018. Had this not been the position, then, the restriction already in place could not have been continued by the further notifications. The withdrawal of the notification dated 2nd July, 2018 will not wipe out the effect of Notification No. 4 dated 25th April, 2018 for that is extended till 30th September, 2018. That notification was in force and that was not withdrawn. It is only the notification of 2nd July, 2018 which is withdrawn albeit for a day. Hence, the restriction was operative and Mr.Jetly is right in contending that the argument that there was no restriction on import of peas till 29th August, 2018 is untenable in law. 50. We have no hesitation in rejecting this argument. There is no question of any saving clause and in-built and to be found or discernible from the notification dated 29th August, 2018. Once the effect is understood in the aforesaid terms, then, this argument of Mr.Shah need not detain us. Mr. Shah is not right in urging that there was no restriction on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the relaxation, the grievance was redressed. The surviving issue actually did not arise for consideration, but since some submissions were canvassed, the Division Bench considered it. 54. With great respect to the Division Bench and in the absence of full particulars and details, we do not think that the observations in the paragraph relied upon by Mr.Shah would constitute a ratio decidendi. These observations have been made after the grievance was redressed. Hence, this order is of no assistance to the petitioner before us. 55. As far as other issues are concerned, they are covered by the judgment and order of this court in the case of Taj Agro (supra). To be fair, Mr.Shah has also not reopened any of the matters concluded by this judgment. 56. We also hold that the respondents committed no error in refusing to take note of the representation dated 4th December, 2018, copy of which is at Exhibit M to the petition. That representation is based on an incorrect and improper understanding of the notifications as well as the provisions of the Customs Act, 1962. 57. As a result of the above discussion, this writ petition fails. Rule is discharged. There would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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