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TMI Blog2019 (6) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... .8.2018 was received by the Government of India Press for the purpose of publishing the same in the Official Gazette. Be that as it may, the respondents have come up with a plausible explanation insofar as the manner in which the Bills of Entry in case of two parties were cleared within the short window between the time of withdrawal of the restriction and reimposition thereof. Besides, just like the petitioner came to know about the notification withdrawing the restriction and placed import orders immediately, the said parties upon coming to know of such withdrawal appear to have acted immediately to take advantage of the same. Therefore, no further inquiry is required to be made in this regard by this court. In the opinion of this Court, in light of what is discussed hereinabove, the contention of the petitioner that he had entered into contract on the date when the restriction came to be removed and, therefore, he is entitled to import of such goods, does not merit acceptance. The relevant date for the purpose of import of peas as described in the impugned notifications is the date of import and the date on which the contract has been entered into by the petitioner is not rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. In the meanwhile, the learned standing counsel for the Director General of Foreign Trade and for the customs authorities shall file affidavits in Special Civil Application No.15620 of 2018, explaining as to under what circumstances a huge quantity of 7500 MT of yellow peas were permitted to be imported by ETC Agro Processing India Pvt. Ltd. as is evident from the Bill of Entry at page 81 to page 100 of the affidavit-in-rejoinder filed by the petitioner within the short window that was available on 29th August, 2018. The learned counsel shall also place on record the exact time when the notifications dated 29th August, 2018 and 30th August, 2018 were published and made known to the public. 3. Since the above referred notifications restricted imports till 30th September, 2018 and 31st March, 2019 respectively, both the notifications have run their course and the period for which the import was restricted under those notifications has expired. Subsequently, the Central Government in exercise of powers under section 3 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as the Foreign Trade Act ) read with paragraphs No.1.02 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import of peas was restricted. With regard to the implementation of Notification No.4/20152020 dated 25.04.2018, Trade Notice No. 05/2018 dated 9.5.2018 and Trade Notice No. 12/2018 dated 18.5.2018 were issued by the DGFT. 5.6 Subsequently, the Ministry of Commerce vide Notification No. 15/20152020 dated 2.7.2018, carried out further amendment in the import policy of peas and the restriction which was effective till 30.6.2018 as per Notification No. 4/20152020 dated 25.4.2018 was extended till 30.9.2018. 5.7 With regard to the implementation of Notification No.4/20152020 dated 25.4.2018, Trade Notice No.19/2018 dated 5.7.2018 was issued by the DGFT wherein it was clarified as under 2. Many representations/applications have been received from various associations/importers requesting for allowing imports which are backed by part advance payments. Considering the hardship faced by the trade, it has been decided to allow imports of Peas under Exim Code 07131000 against advance payments for that much quantity proportional to the part advance payment made before 25. 4.2018. 3. Eligible applicants may accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xim Code 07131000 (including Yellow peas, Green peas, Dun Peas and Kaspa peas) is Restricted till 30.9.2018. 5.12 Being aggrieved the petitioner filed the present petition challenging the said notification. Subsequently, by a notification dated 28.12.2018 the import of peas came to be restricted till 31.3.2019, moved an amendment to the petition challenging the said notification which was allowed. 6. In Special Civil Application No.15620/2018 (hereinafter referred to as the second petition ), the petitioner is engaged in the business of import and export of the agricultural products including the peas. It is the case of the petitioner that by a notification dated 2.7.2018, export of the peas was restricted upto 30.9.2018. However, the petitioner came to know on 29.8.2018 that by notification No.31/20152020, the restriction imposed on import of peas came to be withdrawn and as a result thereof, it was open to import the peas. Therefore, on the same day, he placed two orders and paid necessary amounts. The two orders consisted of the deal to supply 50,000 MT + 3000 MT of yellow peas. The total amount payable for 3000 MT of yellow peas was US D 6,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No.31/2015 dated 29.8.2018 by which the restriction was withdrawn does not even refer to the first restriction Notification No.4/2015 dated 25.4.2018 and only gives a reference to the subsequent restriction Notification No. 15/2015 dated 2.7.2018. According to the learned counsel, therefore, for the period prior to 2.7.2018, there seems to be no restriction at all. 7.1 The learned counsel further contended that Notification No.32/20152020 dated 30.8.2018 is bad in law inasmuch as it is a standalone notification issued for the first time on 30.8.2018. It does not even refer to any of the past restricting notifications nor does it try to save the acts done for the past period under the earlier restricting notifications. It was contended that Notification No.32/2015 dated 30.8.2018 creates a restriction for the first time on 30.8.2018 for the imports made prior to its date on the basis of already concluded contracts. 7.2 In support of his submissions, learned counsel placed reliance upon the decision of Madhya Pradesh High Court in All India Steel ReRollers Association v. Union of India , 2017(347) E.L.T. 53 (M.P.), for the proposition that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government. In support of such submission, the learned counsel placed reliance upon the decisions of Supreme Court in Union of India v. Asian Food Industries , 2006 (204) ELT 8 as well as decision in case of Director General of Foreign Trade and another v. Kanak Exports and another , 2015 (326) ELT 26 , for the proposition that the Government cannot take away a vested right of an assessee by issuing a circular or a notification which is retrospective in effect. The attention of the court was invited to the interim order dated 28.6.2018 of the Madras High Court whereby Notification No.4/20152020 dated 25.4.2018 has been stayed as well as order dated 16.8.2018 of the Madras High Court whereby Notification No. 15/20152020 dated 2.7.23018 had been stayed. It was submitted that when the matter came up for hearing on 24.8.2018, the interim order granted earlier was extended, and based upon these orders, the importers therein were allowed to import and clear the yellow peas. It was submitted that the orders passed by the Madras High Court have not been challenged before the Supreme Court and have not been stayed. It was submitted that the Director General of Foreign Trade by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification dated 29.8.2018 to indicate that it was adhoc in nature and, therefore, on the same day, that is, on 29.8.2018, the petitioner placed two orders and paid the necessary amounts. However, on 30.8.2018, he was informed that by the impugned notification, the restriction was imposed again. 8.1 It was argued that the action of the respondents of withdrawing the restriction and thereafter, imposing restriction on the next day is arbitrary and there is no logic behind it. It was submitted that the petitioner acted on the basis of the promise held out by the respondents that the restriction on import of peas was removed. However, the respondents arbitrarily once again imposed the restriction to the detriment of the petitioner. It was submitted that the action of the respondents is arbitrary and not supported by any logic, rationale or reason. Reliance was placed on the decision of Supreme Court in case of Shayra Bano v. Union of India and others , (2017) 9 Supreme Court Cases 1 , wherein the court held thus: 101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers v. Union of India, (1985) 1 SCC 641, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was a concluded contract between the parties about grant and acceptance of loan, the failure of the Corporation to carry out its part of the obligation may amount to breach of contract for which a remedy lies elsewhere but a writ of mandamus cannot be issued compelling the Corporation to specifically perform the contract. It is too late in the day to contend that the instrumentality of the State which would be 'other authority' under Article 12 of the Constitution can commit breach of a solemn undertaking on which other side has acted and then contend that the party suffering by the breach of contract may sue for damages but cannot compel specific performance of the contract. It was not disputed and in fairness to Mr. Bhatt, it must be said that he did not dispute that the Corporation which is set up under Section 3 of the State Financial Corporation Act, 1955 is an instrumentality of the State and would be 'other authority' under Article 12 of the Constitution. By its letter of offer dated July 24, 1978 and the subsequent agreement dated Feb. 1, 1979 the appellant entered into a solemn agreement in performance of its statutory duty to advance the loan of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invited to act, the result would be that the Government would be bound by a contractual obligation even though no formal contract in the manner required by Article 299 was executed. But this contention was negatived and it was pointed out by this Court that the respondents are not seeking to enforce any contractual right: they are seeking to enforce compliance with the obligation which is laid upon the Textile Commissioner by the terms of the Scheme, and we are of the view that even if the Scheme is executive in character, the respondents who were aggrieved because of the failure to carry out the terms of the Scheme were entitled to seek resort to the Court and claim that the obligation imposed upon the Textile Commissioner by the Scheme be ordered to be carried out . It was thus laid down that a party who has, acting in reliance on a promise made by the Government, altered his position, is entitled to enforce the promise against the Government, even though the promise is not in the form of a formal contract as required by Article 299 and that Article does not militate against the applicability of the doctrine of promissory estoppel against the Government. This C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of interference by this court is very limited. 9.1 It was submitted that the restriction placed on import of peas is a well deliberated decision and there is an object and rationale behind the policy. The attention of the court was invited to the averments made in the affidavitinreply filed on behalf of the respondents, wherein it has inter alia been stated thus: VI. after InterMinisterial Consultations among Secretary, Department of Food Public Distribution, Department of Food Public Distribution, Department of Agriculture, Cooperation and Farmers, Welfare, Department of Consumer Affairs, Department of Commerce, Department of Revenue, Director General of Foreign Trade and Food Corporation of India, it was decided to restrict the import of peas (Pisumsativum), under Exim Code 0713 10 00. Accordingly the Government vide Notification NO 4 dated 25th April, 2018 amended the import policy of Peas (Pisumsativum), Under Exim Code 0713 10 00, from Free to Restricted for the period from 1st April, 2018 to 30th June, 2018 subject to the following Policy condition 4 of Chapter 7 of ITC (HS), 2017, ScheduleI (Import Policy): ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be much below that of chana/gram despite the 50% duty, which acts as an incentive to blend pea flour with gram flour for preparing besan. X Consequently, in order to boost the mandi prices of chana/Bengal gram the Government decided to restrict the import of yellow peas (HS Code 07131000) upto one lakh tons for three months from date of issue of notification to restrict supply of peas and create demand for chana/gram which is currently being harvested in various part of the country. 9.2 It was submitted that the impugned notification is not retrospective and does not affect any vested right of the petitioner. As regards the contention of the petitioner that he had already executed the contracts prior to the restrictions having come into force is concerned, the attention of the court was invited to the following averments made in the affidavitinreply filed on behalf of the respondents: XI. Based on the demands from the trading community and keeping in view the trade impact, the Government took a conscious decision to review the situation and their InterMinisterial Committee under the Chairmanship of Secretary, Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as applied), irrespective of the advance payment made before 25.04.2018. XVI Thus, the above sequence of events amply clarifies that despite the amendment in the import policy of peas from free to restricted , the Government took all possible steps to address the grievances of the trade. 9.3 It was submitted that therefore, due care has been also taken to ensure that people who had placed contracts prior to the date of restriction coming into force did not have to incur losses, to the extent possible. It was submitted that insofar as the bill of entry presented by the petitioner on 30.8.2018 is concerned, in view of impugned notification having come into force, the petitioner was not permitted to import the same. It was submitted that for the purpose of considering whether the petitioner was entitled to import the goods in question, the relevant date is the date of import and that on the date when the goods were sought to be imported, they were restricted goods. 9.4 It was submitted that insofar as the validity of the impugned notifications are concerned, the same are in the nature of a policy decision taken by the Central Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that till 29.8.2018, until the notification was issued, import restriction on peas was very much in place and no import could have taken place without the import license/authorisation or the registration certificate issued by the DGFT. 9.6 It was submitted that since the notification dated 2.7.2018 had been withdrawn for technical reasons, immediately on the next day, the Central Government issued Notification No.32/20152020 dated 30.8.2018 restricting the import of peas till 30.9.2018. It was submitted that the above measures taken by the Government are in pursuance of its endeavours to strike a balance between the farmers and the importers and frame policies in the larger interest of the public, safeguarding the interests of both the domestic farmers/producers and the importers and, therefore, no interference is called for by this court. 10. Mr. Nikunt Raval, learned senior standing counsel for respondents No. 1 to 4 and 7 in the second petition, reiterated the submissions advanced by Ms. Trusha Patel, learned senior standing counsel for the respondents in the first petition and further submitted that the policy makers are not concerned with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing manner: 12. There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to the policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. Any decision be it a simple administrative decision or policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution. 16. The power of the Court under writ jurisdiction has been discussed in Asif Hameed and Others v. State of Jammu and Kashmir and Others in paras 17 and 19, which read as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 We would also like to refer to the judgment of this Court in the case of Premier Tyres Limited v. Kerala State Road Transport Corporation wherein this Court held that when a policy decision is taken in the public interest, Courts need not tinker with the same. 20. The locus classicus allowing freedom to the Executive to take economic decisions is remarkably dealt with by this Court in R.K. Garg v. Union of India and the following discussion from the said judgment is again worth quoting: 8. Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or straitjacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of peas which under the existing policy was free came to be restricted under the revised import policy. Subsequently, by a notification dated 2.7.2018, the restriction came to be extended till 30.9.2018. However, it appears that since such notifications were signed by the DGFT, certain orders came to be passed by the Madras High Court from time to time staying such notifications, mainly on the ground that the DGFT had no power to issue a notification under section 3 of the Foreign Trade Act. It appears that the court was taking a strict view of the matter and hence, with a view to comply with such orders, as is evident on a plain reading of the notification dated 29.8.2018, the notification dated 2.7.2018 extending the restriction on import of peas classified under Exim Code 0713 10 00 till 30.9.2018, came to be withdrawn. The said notification reads thus : Government of India Ministry of Commerce Industry Department of Commerce Udyog Bhawan, New Delhi Notification No. 31/20152020 Dated the 29 August, 2018 Subject Withdrawal of N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te to him. The court following the decision of the Supreme Court in case of Director General of Foreign Trade v. Kanak Exports (supra) had granted interim relief staying the notification. Since the main ground for staying the notification was that such powers were to be exercised by the Central Government and not by the DGFT, it appears that to remove this technical objection, the notification dated 2.7.2018 came to be withdrawn by a notification dated 29.8.2018 and another notification came to be issued on 30.8.2019 after removing the technical defect. 15. In the opinion of this Court, the withdrawal of the notification in compliance of the order passed by the Madras High Court cannot by any stretch of imagination be termed a promise held out by the respondents that the import of peas would be free henceforth. In fact, the notification itself clearly states as to why it has been issued. 16. At this juncture, reference may be made to the judgment and order dated 24.10.2018 passed by this court in BPS Minerals Export Pvt. Ltd. v. Union of India rendered in Special Civil Application No.15342/2018, wherein this court held thus : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffidavitinreply filed on behalf of the respondents, it is evident that the decision has been taken in the public interest. Besides, the respondents have also taken care that the interests of people who had entered into contracts prior to the restrictions being imposed is also taken care of, to the extent possible. 19. Insofar as decision of the Supreme Court in case of Union of India v. Asian Food Industries (supra), on which reference has been placed by Mr. Alok Yadav, learned counsel for the petitioner in the first petition is concerned, in that case the notification was issued on 27.6.2006 but was sought to be made applicable with effect from 22.6.2006 when the policy was announced. Therefore, in facts of the said case, in fact, the policy was sought to be made applicable retrospectively. Hence the said decision would have no applicability to the facts of the present case. 20. It may be noted that restriction on import of peas came to be imposed initially by a notification dated 25.4.2018. The notification provides that during the period from 1st April to 30th June, 2018 total quantity of one lakh MT yellow peas minus the quantity already impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered by the Regional Authorities of DGFT. 22. Subsequently, by the Trade Notice No.19/20182019 dated 5th July, issued in relation to implementation of Notification No.04 dated 25.04.2018, it was stated that many representations/applications have been received from various associations/importers requesting for allowing imports which are backed by part advance payments. Considering the hardship faced by the trade, it has been decide 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 25.4.2018. It is an admitted position that the petitioner in the first petition has availed of the benefit under such trade notice. Thus the impugned notification restricting the import of peas has not put a blanket ban on import of peas but has taken care of those contracts which have been issued prior to issuance of notification. 23. It has been contended on behalf of the petitioner in the first petition that transitional arrangements contemplated under paragraph 1.05 of Chapter 1A of the Foreign Trade Policy and Handbook of Procedures have not been followed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( iii) Duty payable. It is averred that since the Bills of Entry were filed when there was no restriction, the Assessing Officer assessed the same in accordance with law and cleared them. 26. A perusal of the Bills of Entry reveals that they were presented between 7:20 pm to 8:05 pm and at a later period than that. From the details furnished by the learned counsel for the Central Government, there is nothing to show that as to at what time the letter dated 29.8.2018 was received by the Government of India Press for the purpose of publishing the same in the Official Gazette. Be that as it may, the respondents have come up with a plausible explanation insofar as the manner in which the Bills of Entry in case of two parties were cleared within the short window between the time of withdrawal of the restriction and reimposition thereof. Besides, just like the petitioner came to know about the notification withdrawing the restriction and placed import orders immediately, the said parties upon coming to know of such withdrawal appear to have acted immediately to take advantage of the same. Therefore, no further inquiry is required to be made in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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