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TMI Blog2019 (11) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... J. Petitioner Through: Mr. Tarun Gulati, Sr. Adv. with Mr. Kishore Kunal, Mr. Pratush Chodhary and Mr. Kumar, Advs. Respondents Through: Mr. Manik Dogra, SCGC with Mr. Dhruv Pande and Ms. Mallika Hiremath, Advs. Mr. Amit Bansal, SSC with Mr. Aman Rewaria and Ms. Vipasha Msihra, Advs. for R Customs Ms. Suparna Srivastava, CGSC with Mr. Tushar Mathur, Advs. for R-1 to 3 Mr. Amit Bansal, SSC with Mr. Aman Rewaria and Ms. Vipasha Msihra, Advs. for R-Customs Mr. Anurag Ahluwalia, CGSC with Mr. Abhigyan Siddhant, JUDGMENT D.N. PATEL, CHIEF JUSTICE (ORAL) 1. The disputes, in these writ petitions, revolve around Notifications Nos. 24/2015-2020 and 25/2015-2020, dated 25th August, 2017, issued by the Directorate General of Foreign Trade (DGFT), and their applicability to gold coins, imported by the petitioners. 2. For ready reference, the impugned Notifications Nos. 24/2015-2020, dated 25th August, 2017 and 25/2015-2020, dated 25th August, 2017, issued by the DGFT, are reproduced thus: Notification No. 24/2015-20, dated 25th August, 2017: "To be published in the Gazette of India Extraordinary Part-II, Section - 3, Sub-Section (ii) Government of India Ministry of Commerce & Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of gold and silver under Exim Codes 7113, 7114, 7115 and 7118 from South Korea is inserted in Chapter 71 of ITC (HS) 2017. Sd./- (Alok Vardhan Chaturvedi) Director General of Foreign Trade E-mail: [email protected]" [Issued from F.No.1/89/180/36/AM-11/PC-2(A)] Facts: 3. The Foreign Trade Policy 2015-2020 (hereinafter referred to as "FTP 2015-20") was notified by the Central Government, under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as " the FT (D&R) Act"), on 1st April, 2015. 4. On the same date, the Handbook of Procedures (hereinafter referred to as "HBP"), containing the procedure to be followed for implementation of the FTP 2015-20, and issued under para 1.03 thereof, was also notified. 5. Paras 2.17 (a) and 9.11 of the HBP 2015-20 read thus: "2.17 Date of reckoning of Import / Export - (a) Date of reckoning of import is decided with reference to date of shipment / dispatch of goods from supplying country as given in Paragraph 9.11 of Handbook of Procedures and not the date of arrival of goods at an Indian port." ***** "9.11 Date of shipment/Dispatch in respect of Imports Date of shipment/dispatch for imports will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o notifications, wherewith the petitioners claim to be aggrieved i.e., Notifications Nos. 24/2015-2020 and 25/2015-2020 - which would, for the sake of ease of reference, be denoted, hereinafter, as "Notification No. 24" and "Notification No. 25" respectively. 14. Notification No. 24 amended para 2.07 of the FTP 2015-20. Prior to its amendment, para 2.07 of the FTP read thus: "2.07 Principles of Restrictions DGFT may, through a Notification, impose restrictions on export and import, necessary for: - (a) Protection of public morals; (b) Protection of human, animal or plant life or health; (c) Protection of patents, trademarks and copyrights, and the prevention of deceptive practices; (d) Prevention of use of prison labour; (e) Protection of national treasures of artistic, historic or archaeological value; (f) Conservation of exhaustible natural resources; (g) Protection of trade of fissionable material or material from which they are derived; (h) Prevention of traffic in arms, ammunition and implements of war." 15. Notification No. 24 added, after the aforesaid eight clauses (a) to (h) in para 2.07 of the FTP 2015-2020, a ninth clause, viz. clause (i), by virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysis thereof 21. We have heard Mr. Tarun Gulati, learned Senior Counsel appearing on behalf of the petitioners, as well as Mr. Manik Dogra, Ms. Suparna Srivastava and Mr. Anurag Ahluwalia, learned CGSC for Respondent No.1 and Mr. Amit Bansal, learned SSC for the Customs authorities, at length. 22. There can be no dispute about the fact that, by combined operation of Notification Nos. 24 and 25, dated 25th August, 2017 and Public Notice No. 20, dated 25th August, 2017, which came into existence, as triplets, on 25th August, 2017, gold coins could not be freely imported, and had to be imported in accordance with country-specific restriction/prohibition on imports/export of items contained in Appendix-2(X), which was engrafted by the aforesaid Public Notice No.20/2015-2020. 23. The petitioners, however, contend that the gold coins imported by them could not be subjected to the rigours of the aforesaid Notification Nos. 24 and 25, or of Public Notice No. 20, for the simple reason that they already stood imported before the impugned notifications and Public Notice came into force. 24. It is averred, in the writ petition, that the above Notifications and Public Notice were published, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, order, by-law, notification or any other matter is published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form." 31. In terms of the Section 8 of the IT Act, the following Office Memorandum (OM) was issued by the PSP Division in the Ministry of Urban Development on 30th September, 2015: "No. O-17022/1/2015-PSP-I Government of India Ministry of Urban Development (PSP Division) Nirman Bhawan, New Delhi Dated: 30th September, 2015 OFFICE MEMORANDUM Subject: E-publishing of Government of India Gazette Notification Discontinuing of the practice of physical printing. In compliance with the provisions of Section 8 of the Information Technology Act, 2000, it has been decided in consultation with Department of Legal Affairs to switch over to exclusive e-publishing of the Government of India Gazette Notification on its official website with effect from 01.10.2015 and to do away with the physical printing of Gazette Notification. The date of publishing shall be the date of e-publication on official website by way of electronic gazette in respect of Gazette Notifications. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scated under Section 111 (d) of the Customs Act, 1962 as they had been imported in violation of the restrictions imposed by the impugned Notification Nos. 24 and 25, dated 25th August, 2017, and as to why penalty be not imposed on the petitioners. 38. Taking stock of the aforesaid factual and legal position, this Court had, vide its interim order dated 14th September, 2017, observed that there was, prima facie, merit in the case of the petitioners, and had, therefore, permitted provisional release of the gold coins imported by them subject to furnishing of a Bond covering 100% of the value of the gold coins. Adjudication of the show cause notices issued to the petitioners was also stayed. 39. The Show Cause Notice has been challenged in WP (C) No. 8667/2017, though there is no specific prayer, in any of the other writ petitions, for quashing, or setting aside, the Show Cause Notice. 40. In the absence of any challenge, to the Show Cause Notices issued to the petitioners in these writ petitions (except in WP (C) 8667/2017) it is not possible for this Court to quash the show cause notices, dated 8th September, 2017, issued to the petitioners (except to the petitioners in WP (C) 86 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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