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TMI Blog2020 (10) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner No.1 before us is the registered association of exporters of onions whereas petitioner No.2 is a member of petitioner No.1 being proprietor of Fair Agro Enterprises. 3. Challenge made in this writ petition filed under Article 226 of the Constitution of India is to the notification No.31/2015-20 dated 14.09.2020 issued by Director General of Foreign Trade, Department of Commerce, Ministry of Commerce and Industry, Government of India prohibiting the export of all varieties of onions with immediate effect; further, petitioners seek a direction to the respondents to release the goods (onions) for export where shipping bills of export were filed and generated with respondent Nos.4, 5 and 6 before issuance of the impugned notification. 4. When the case was taken up on 25.09.2020, the following order was passed:- "Heard learned Counsel for the parties. 2 Basic grievance of the Petitioners are that their bills for export of onions were prior to issuance of notification dated 14th September, 2020 whereby export of onions has been prohibited; yet those are not being permitted to be exported. 3 Mr. Jetly, learned Sr. Counsel submits on instructions that a decision has been t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e their exit, those would be allowed to be exported. While deferring the matter to 13.10.2020, it was observed that if the petitioners received details of the balance containers, those should be furnished to the office of Mr. Singh for verification as well. 6. On 13.10.2020, respondent Nos.4 to 6 filed additional affidavit. It may be mentioned that prior to that the said respondents had filed two affidavits. Thus, respondent Nos.4 to 6 have filed three affidavits in all. On a query by the Court, learned senior counsel for the petitioners, Mr. Shroff submitted that petitioners' assailment to the legality and validity of the impugned notification dated 14.09.2020 would stand and they would like to press the same as and when Court decides to finally hear the matter. After hearing learned counsel for the parties, the matter was reserved for orders. 7. While challenge to the impugned notification is on the ground that the same is arbitrary and unreasonable besides being contrary to the Foreign Trade Policy, 2015-20, in so far the second prayer is concerned, it has been alleged in paragraphs 8(b) and 18 of the writ petition that even before the impugned notification was published for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers as well. In para 8 of this affidavit, it is stated that customs authorities processed Let Export Orders for containers parked inside the parking plaza after completion of gate-in procedures and registration formalities. It is admitted that petitioners' submission that Let Export Orders of 68 containers which were kept outside the parking plaza were not processed is quite possible as the containers were not brought inside the parking plaza nor documents relating to the containers were registered; at the same time there is an evasive denial by the said respondents to the allegation that customs authorities acted arbitrarily on 14.09.2020 by not processing Let Export Orders for the 68 containers. 8.1. In the second affidavit filed on 05.10.2020, the procedure for export has been explained. While sections 50 and 51 of the Customs Act, 1962 lay down the basic framework of procedure for export of goods, it is however stated that only at the stage when the exporter approaches the customs officer with the relevant documents after parking the goods in the parking plaza that handing over of goods to the customs for verification takes place. Let Export Order is issued if everything is fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and acting upon such insider information did not accept any container of onions during the whole day of 14.09.2020, the same has not been specifically denied by respondent Nos.4, 5 and 6 in the three affidavits. 10. Be that as it may, Chapter VII of the Customs Act, 1962 (briefly 'the Customs Act') deals with clearance of imported goods and export goods. Sections 50 and 51 forming part of the said Chapter under the heading "Clearance of Export Goods" deals with entry and clearance of goods for exportation. As the heading itself suggests, section 50 deals with entry of goods for exportation. As per sub-section (1), the exporter of any goods shall make entry thereof by presenting electronically on the customs automated system to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill and in the case of goods to be exported by land, a bill of export in the prescribed form and manner. As per sub-section (2), the exporter of any goods while presenting a shipping bill or bill of export shall make and subscribe to a declaration as to the truth of its contents. Sub-section (3) is more specific. It says that the exporter who presents a shipping bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the services at the service centre. 10.5. Regulation 4 provides for a situation when shipping bills are deemed to be filed and self-assessment completed. It says that the shipping bill shall be deemed to have been filed and self-assessment completed when after entry of the electronic integrated declaration on the ICEGATE or by way of data entry through the service centre, a shipping bill number is generated by the Indian Customs Electronic Data Interchange System for the said declaration. 10.6. Regulation 8 provides for imposition of penalty on any authorized person who contravenes or fails to comply with any of the provisions contained in the 2019 Regulations. 10.7. Thus, filing and generation of shipping bill is not an empty formality. It has a definite meaning assigned to it under the 2019 Regulations. It sets in motion the process of exportation of goods. The 2019 Regulations only reinforces the sanctity attached to a shipping bill under section 50 of the Customs Act. 11. In this connection, we may also usefully refer to internal communication of the Central Board of Indirect Taxes and Customs dated 18.09.2020 whereby clarification has been issued on date of shi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding it has been held by the Supreme Court that the revised rate of import duty in terms of the notification would apply to bills of entry presented for home consumption after the notification was uploaded in the e-gazette at 20:46:58 hours on 16.02.2019. All the civil appeals were dismissed. 14. Our attention has also been drawn to the gazette notification dated 14.09.2020. Though respondents have stated in their first affidavit that they received copy of the same at 7:59 p.m. of 14.09.2020, from a perusal of the notification we find that the same was uploaded digitally on 14.09.2020 at 22:28:11 hours. 15. Thus having regard to the above and considering all aspects of the matter, we are of the view that a case for admission and interim relief is made out. Accordingly, we pass the following orders:- 1. Let Rule be issued; 2. Since the parties are already represented, issuance of further notice stands obviated; 3. In continuation of our order dated 25.09.2020, export of onions in respect of the shipping bills which were presented and generated prior to 22:28:11 hours on 14.09.2020 shall be allowed subject to the clarification given by the Central Board of Indirect T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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