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TMI Blog2019 (4) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 direct 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. Detailed submissions of Mr.Vijay Narayan, learned Advocate General appearing for Mr.R.Satish Sundar, Mr.P.Wilson, learned Senior Counsel appearing for Mr.A.Suresh, Mr.P.Sidharthan, Mr.C.Vigneshwaran, Mr.K.Mohanamurali and Mr.G.Ethirajulu, learned counsels appearing for the petitioners and Mr.S.R.Sundar, Ms.Aparna Nandakumar, Mr.Madhana Gopal Rao and Mr.K.Umesh Rao, learned standing counsels for the respondents have been heard. No counters have been filed till date though the earliest matter in the batch came up o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 August 2017 onwards in the case of dhalls. As far as Toor, Moong and Urad Dhalls are concerned, the respondents have issued two notifications bearing numbers (i) No.22/2015-2020 dated 21.08.2017 and (ii) 06/20152020 dated 04.05.2018. The Notifications restrict the quantum of import of dhalls and the operation of the said notifications has been stayed by orders of this Court dated 31.08.2018 in W.P.Nos.21454 and 21455 of 2018 and WMP Nos.25197, 25198 and 25200 of 2018. 8. As far as peas are concerned, initially a notification was issued on 25th April 2018 for the period 01.04.2018 to 30.06.2018 that placed a restriction on the quantum of peas liable to be imported. The Policy condition was set out in paragraph 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. 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 in several High Courts. The challenge had been rejected by a Division Bench of the Gujarat High Court vide its order dated 19.12.2018 in the case of Premium Pulses Products V. Union of India (R/special Civil Application Nos.16765, 17290, 17573 and 17664 of 2018). The importers had challenged the decision of the Gujarat High Court by way of a petition for Special Leave that had been rejected by the Supreme Court vide judgement dated 28.01.2019 in SLP (C) No.1922 of 2019 in the case of Kusum Agency V. Union of India and others. Accordingly, they would submit that goods in question assumed the character of prohibited goods and rightly not permitted to be cleared by the authorities. 13. The legal defence raised is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llow 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 there is any embargo on the import of the consignments of peas imported during 01.10.2018 and 31.12.2018 and covered by Bills of Lading for the aforesaid period. 17. As regards the first issue, Regulation 9.11 of the Foreign Trade Policy specifically states that for the purpose of reckoning the date of import, the relevant date would be the date of Bill of Lading only. In the light of the aforesaid the Foreign Trade Policy being a complete code by itself, reference by the learned counsels for the Revenue to section 15 of the Customs Act, which fixes the date for determination of rate 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 Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 advanced by the learned counsel for the parties and have thoroughly perused the record. We have to first consider whether 'Palm Kernel' and 'palm seed' were two different commodities or 'Palm Kernel' was included in 'Pal, seed' for the purposes of import. The difference between 'palm seed' and 'Palm Kernel' has been explained in the letter of the Central Plantation Crops Research Institute date January 21, 1987 (placed on record), it reads as under: "The difference between Palm Kernel and palm seeds has also been pointed out in the aforesaid letter according to which palm seed is specially extracted from fruits while kernel is a product obtained after sterilisation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 refrain from adverting to the same. 23. The grant of stay of operation of the relevant Notifications and the pendency of the said stay as on the date of import is admitted. Thus, and in conclusion, on the basis of the admitted position on facts as recorded 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." 3. In the light of the aforesaid, the conclusions as arrived at by me in my order above will equally apply in the present case as well. 4. The petitioner will remit the entire duty component of the consignments imported by him in case were such duty is leviable as per paragraph 15( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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