9911796707
TMI Blog2021 (4) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... 02.10.2020, (iii) 9028862 dated 02.10.2020, (iv) 8845847 dated 17.09.2020, (v) 8843086 dated 17.09.2020, (vi) 8842485 dated 17.09.2020, (vii) 8985829 dated 29.09.2020, (viii) 8987173 dated 29.09.2020, (ix) 8982222 dated 28.09.2020, (x) 8994149 dated 29.09.2020, (xi) 9008104 dated 02.10.2020, (xii) 9029328 dated 02.10.2020, and (xiii) 9029262 dated 02.10.2020 for home consumption (hereinafter referred to as "the bills of entry") which have been held up inspite of having valid registration of Advance Payment Certifcate bearing File No.03/27/008/ 00161/AM18 dated 06.09.2017 and issued on 27.09.2017 by the ofce of the respondent No.5 i.e. the Director General of Foreign Trade (hereinafter referred to as "the DGFT") permitting import of Pigeon Peas under the Foreign Trade Policy 2015-2020 (hereinafter referred to as "the FTP"). 3. Before we advert to the submissions made by learned counsel for the respective parties, it will be apposite to briefy refer to the relevant facts as pleaded for adjudication of the lis. 3.1. Petitioner is a company incorporated under the Companies Act, 2013 and engaged in the business of import and export of agricultural commodities. Petitioner is a regular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by amendment sheet No.01 dated 02.11.2017, petitioner was permitted to import Pigeon Peas from Malawi, Myanmar, Mozambique and Tanzania. 3.5. DGFT issued 5 RCs to the petitioner against the trade notice dated 31.08.2017. Petitioner imported Pigeon Peas against 4 RCs to the extent of 11000 MTs by 2018. Import against the 5th RC in respect of balance 11000 MTs was to be completed between 2018 to 2020. 3.6. In view petitioner's contractual obligations shipment was to reach India between February and March 2020 but due to Covid - 19 pandemic and the resultant lockdown enforced by many countries there was delay and the shipment of Pigeon Peas arrived in the month of September 2020. Initially petitioner fled 3 bills of entry bearing Nos. (i) 8845847 dated 17.09.2020, (ii) 8843086 dated 17.09.2020 and (iii) 8842485 dated 17.09.2020 seeking clearance of Pigeon Peas for home consumption. 3.7. Petitioner's shipment was not cleared for home consumption by respondent Nos.2 & 3 as a result of which petitioner incurred demurrage / detention charges due to delay in clearance. Petitioner therefore addressed letter dated 22.09.2020 to the DGFT seeking clarifcation as to whether the RC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from home consumption to warehousing. 3.12. Being aggrieved by the non-clearance of the shipment of approximately 2650 MT of Pigeon Peas imported vide RC dated 06.09.2017 under the 13 bills of entry, petitioner has approached this Court by the present petition seeking the relief(s) as indicated above. 4. Mr. Vineet Naik, learned senior counsel appearing on behalf of the petitioner, at the outset has informed that the tenure of the FTP 2015-2020 now stands extended till 31.03.2021 vide notifcation dated 31.03.2020. He submitted that import against 4 RCs was completed by the petitioner in 2018, whereas import against the 5th RC was to be completed between 2018 to 2020; import was thus continuous from the date of issuance of the RCs to the petitioner; RC dated 06.09.2017 issued to the petitioner was without specifying any validity period or date of shipment but categorically stated that the RC would remain valid till the entire quantity is imported; petitioner extended the contract mutually with its foreign supplier from time to time, intimation of which was given to the DGFT at all times; petitioner's RC was fully covered by the Notifcation dated 05.08.2017 and the clarifcator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h advance payment prior to 05.08.2017 and relaxation was provided beyond the quota but the same was to be completed during the fscal year 2017-18 and could not be extended indefnitely by entering into addendums; thus in the absence of any validity endorsed on the RC issued to the petitioner, the quantity, value and shipment period in the contract as on the date of registration has to be treated as a limiting factor; contention of the petitioner that the FTP permitted import under the RC for the entire duration of FTP is erroneous as trade notice dated 31.08.2017 allowed for registration of contracts as per the terms of the contract as on the date of its registration with the balance value, quantity and shipment period available in the contract as the limiting factor; the relaxation provided was only to alleviate the immediate sufering of the importers and could not be mis-utilized by extending the relaxation beyond the fscal year 2017-18; petitioner while applying for amendment in the RC for adding country of origin did not mention that its contract was extended till 28.09.2020; the RC issued to the petitioner cannot be treated as open ended and it has to be linked with the notifca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; reliance was placed on the clarifcation issued by the Deputy Director of General of Foreign Trade vide letter dated 24.12.2020 to the Commissioner of Customs, Nhava Sheva, inter alia, clarifying that in the case of the petitioner, validity of the RC was only for the fscal year 2017-18 as the provision for registering RCs was made with reference to notifcation No.19/2015-2020 dated 05.08.2017 and the date of expiry is the date of lapse of notifcation i.e. 31.03.2018. He therefore prayed for dismissal of the petition on the basis of the above submissions. 6. Mr. Pradeep Jetly, learned senior counsel appearing on behalf of respondent Nos.1 to 3 in his reply, at the outset adopted the submissions made on behalf of respondent Nos.4 to 6 and has drawn our attention to the afdavit-in-reply dated 17.12.2020 fled by the Deputy Commissioner of Customs to contend that since the RC dated 06.09.2017 does not bear any validity or expiry clause, the matter was referred to the DGFT; extension of the original contract was never intimated by petitioner and the contract was never revalidated; therefore the petitioner is not entitled to the reliefs claimed in the petition. 7. Mr. Vineet Naik, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the parties have received the due consideration of the Court. Materials on record have been perused. 9. Before we advert to the submissions made by the respective counsel, it would be apposite to consider the relevant provisions of the Foreign Trade Policy 2015-2020 as applicable in the present case. 9.1. Chapter 1 of the Foreign Trade Policy (2015-2020) deals with the legal framework and trade facilitation. The relevant provisions are extracted as under:- 1.00 Legal Basis of Foreign Trade Policy (FTP) The Foreign Trade Policy, 2015-20, (as updated) w.e.f. 05.12.2017 is notifed by Central Government, in exercise of powers conferred under Section 5 of the Foreign Trade (Development & Regulation) Act, 1992 (No. 22 of 1992) [FT (D&R) Act], as amended. 1.01 Duration of FTP The Foreign Trade Policy (FTP), 2015-2020, (as updated) w.e.f. 05.12.2017 incorporating provisions relating to export and import of goods and services, shall come into force with efect from the date of notifcation and shall remain in force upto 31st March, 2020, unless otherwise specifed. All exports and imports made up to the date of notifcation shall, accordingly, be governed by the relevant FTP, unl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and shall be limited to the balance quantity, value and period available in the ICLC. For operational listing such ICLC, the applicant shall have to register the ICLC with jurisdictional RA against computerized receipt within 15 days of imposition of any such restriction / regulation. Whenever, Government brings out a policy change of a particular item, the change will be applicable prospectively (from the date of Notifcation) unless otherwise provided for. 9.2. From the above it can be seen that paragraph No.1.01 of chapter 1 of the FTP states that the FTP shall come into force with efect from the date of notifcation and shall remain in force upto 31.03.2020, unless otherwise specifed as stated; the said policy now stands extended upto 31.03.2021. Paragraph No.1.05 relates to transitional arrangements and clause (b) thereof states that 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 afected. It further states that any import / export on or after the date of such regulation / restriction will be allowed for the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -PC 2(A)] 9.4. By the above notifcation amendment in the import policy of Pigeon Peas under chapter 7 of the Indian Trade Classifcation (HS) 2017 for the FTP is made specifcally in respect of import of Pigeon Peas whereby the import is changed from free to restricted category. A further condition is incorporated stating that import shall be subject to an annual (fscal year) quota of 2 lakh MT as per the procedure to be notifed. Condition No.2 states that import shall be subject to an annual quota of 2 lakh MT. From this it can be safely inferred that the import under the FTP is for the duration of the FTP and not for the fscal year 2017-2018. 9.5. Similarly trade notices No.13/2015-2020 dated 11.08.2017 and No.15/2015-2020 dated 31.08.2017 issued by the DGFT are also directly relevant to the present case and are extracted as under :- Government of India Ministry of Commerce and Industry Department of Commerce Directorate General of Foreign Trade 11th August, 2017 TRADE NOTICE NO. 13/(2015-2020) To 1. ALL RA's of DGFT 2. All Customs Commissionerate 3. Members of Trade Subject : Implementation of Notifcation No. 19 dated 5.8.2017-reg. Reference is invited to N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector General of Foreign Trade, in exercise of powers under Para 2.58 of the Foreign Trade Policy (2015-20), by relaxing the provisions of Para 1.05, hereby allowed registration of such Contracts with the Regional Authorities of DGFT for import of Pigeon Peas (Cajanus Cajan) / Toor Dal, wherein advance payment had been made (full or in part) prior to 5.8.2017 and for which contract / purchase invoice and payment details certifed by the bank are available. 5. Further, in relaxation of the provision of time limit for registration of contracts, as in Para 1.05 of FTP, such contracts must be registered with the Jurisdictional Regional Authorities headed only by the Additional DGFTs, latest by 7th September, 2017 (5.00 p.m.). Applicants seeking relaxation in Para 1.05 of FTP (2015-20) may submit their application to the jurisdictional RAs headed by Addl. DGFT, for registration of their contracts wherein advance payment had been made prior to 5.8.2017, by making an online payment of Rs. 2000/- as application fee for seeking relaxation in Policy/procedure as per Appendix 2K. 6. Accordingly, such contracts shall be registered by the Zonal RAs i.e Chennai, Delhi, Kolkata, Mumbai and R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bank under the category of advance payment being made prior to 05.08.2017. Respondent No.6 initially issued two RCs both dated 06.09.2017 permitting import of 11000 MTs of Pigeon Peas per certifcate. We have seen that both the RCs are identical except for the bold letter "E" in the second RC. 11. For the sake of convenience, one of the RCs dated 06.09.2017 issued by the Foreign Trade Development Ofcer in the ofce of respondent No.6 is extracted below for reference as under :- GOVERNMENT OF INDIA OFFICE OF THE ADDITIONAL DIRECTOR GENERAL OF FOREIGN TRADE Nishta Bhavan, 48, Vithaldas Thackersey Marg, Churchgate, Mumbai 20 Telephone No.(022) 22017716, 22038094, 22033097, 22031074, fax No.022 22001255, E-mail ID :- [email protected]. File No.03/27/008/00161/AM18 REGISTRATION OF IRREVOCABLE LETTER OF CREDIT/ ADVANCE PAYMENT UNDER PARA 1.05 (B) OF THE FTP 2015-20202 (A) Applicant's Details Name of the Firm / Company RIKA GLOBAL IMPEX LIMITED Address 2ND FLOOR, SAKHAR BHAVAN, 230, NARIMAN POINT, MUMBAI - 400021 E - Code Number 0207011061 issuing Authority OFFICE OF THE DIRECTOR GENERAL OF FOREIGN TRADE, CALCUTTA (B) L/C Registration Details Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r controverted by the respondents; it is also seen that respondents were duly informed by the petitioner about the extended period of shipment and the subsequent addendums with its foreign supplier and therefore the respondents' objection about the validity period of the RC being restricted to the fscal year 2017-18 cannot be accepted. It is pertinent to note that if any restriction with respect to prescribing limitation of time limit is required to be imposed on any import then the RC should have an endorsement to that efect; in the instant case both the RCs presented before us do not have any such endorsement limiting the import of Pigeon Peas only during the fscal year 2017-18 and therefore there is substantial merit in the case of the petitioner. 13. The notifcation dated 05.08.2017 and trade notices dated 11.08.2017 and 31.08.2017 nowhere state that the concerned import should be limited upto 31.03.2018. In that case there should had been an express endorsement in the notifcation or in the trade notices about their expiry or there should have been a subsequent notifcation superseding the notifcation / notices. It is also seen that the DGFT has considered the addendums whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TP; however the subsequent trade notice dated 31.08.2017 which directly concerns the petitioner's case in hand does not mention its applicability to the fscal year 2017-2018 and categorically specifes its applicability to the contract under the FTP. 15. We may also note the contents of the clarifcatory email dated 29.10.2020 issued by the Deputy DGFT, Mumbai and addressed to the Deputy (PC-2) DGFT endorsing a copy to the Mumbai DGFT and Joint DGFT which supports the petitioner's case. For the sake of convenience the clarifcation provided in the email is extracted as under. "1. The application was made under Trade Notice No.15(2015-20) dated 31.08.2017. 2. It is made against part advance payment and rest amount payable against the documents. 3. The RC was not issued against any other document. 4. The application was made against advance payment. There was no IC involved. 5. The shipping date as per proforma - contract / addendums is 31st March, 2021." 15.1. Perusal of the clarifcatory email shows that it is clarifed by the DGFT that petitioner's application for import is made under the trade notice dated 31.08.2017 against part advance payment and most import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e FTP 2015-2020 - reg. Sir, I am directed to refer to the letter No.S/26- Misc-184/2011-12 GR. I & IA (Pt.III) dated 24.09.2020 on the subject cited above seeking following clarifcations from the O/o Addl. Director General of Foreign Trade, Mumbai : i. Whether the above said ILC / Advance payment dated 27.10.2017 is still valid ? ii. If yes, please furnish date of expiry of the same. iii. Whether the consignments covered under subject 03 bills of entry can be cleared against the said ILC or otherwise ? iv. Whether the said ILC / Advance Payment can be utilized for further such imports if any by the importer ? 2. In this regard the following clarifcation is issued in-seriatim : i. The validity of RC was only for the fscal year 2017-18; as the provision for registering RCs was made with reference to Notifcation No.19/2015- 2020 dated 5th August, 2017. ii. The date of expiry is the date of lapse of Notifcation i.e. 31.03.2018. iii. & (iv) Customs may like to take a decision based on the clarifcation furnished above. 3. This issues with the approval of Competent Authority. Yours faithfully sd/- (S.K. Mohaptra) Deputy Director General of Foreign Trade Tel : 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as well as on merit. 6. Stand over to 12.02.2021." 19. If the aforesaid objection raised by respondent Nos.4 to 6 is to be countenanced, then there was no reason for the respondents to clear the 25 shipments of the petitioner after 31.03.2018, i.e. from 23.04.2018 to 25.07.2020. The stand adopted by the respondents especially respondent Nos.4 to 6 is against the spirit and contents of the FTP. Para 1.07 of Chapter 1 of the FTP 2015- 2020 states that DGFT has a commitment to function as a facilitator of exports and imports. Focus is on good governance, which depends on efcient, transparent and accountable delivery systems. It further states that in order to facilitate international trade, DGFT consults various Export Promotion Councils as well as Trade and Industry bodies from time to time. Thus the DGFT is required to act as a facilitator which is however not seen in the present case. We may also refer to chapter 9 of the FTP which concerns with defnitions and we may usefully extract the following defnitions to understand the terminology. Paragraph 9.23 defnes 'free' and states that free as appearing in the context of import / export policy for items means goods which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riate forum / court in accordance with law. 21. Thus on a thorough consideration of the submissions made by the parties and pleadings on record, we are inclined to pass the following orders:- (i) Respondents shall allow clearance of 2650 MT of Pigeon Peas covered under Bill of Entry Nos.(i) 9029721 dated 02.10.2020, (ii) 9028987 dated 02.10.2020, (iii) 9028862 dated 02.10.2020, (iv) 8845847 dated 17.09.2020, (v) 8843086 dated 17.09.2020, (vi) 8842485 dated 17.09.2020, (vii) 8985829 dated 29.09.2020, (viii) 8987173 dated 29.09.2020, (ix) 8982222 dated 28.09.2020, (x) 8994149 dated 29.09.2020, (xi) 9008104 dated 02.10.2020, (xii) 9029328 dated 02.10.2020, and (xiii) 9029262 dated 02.10.2020 for home consumption to the petitioner forthwith; (ii) Considering the lapse of time from the date of fling of the petition i.e. November 2020 till the present order is passed, we direct that respondents shall allow clearance of the balance 8350 MT of Pigeon Peas if imported by the petitioner for home consumption under the RC File No.03/27/008/00161/AM18 dated 06.09.2017 upto a period of 6 weeks from the date of passing of the present order. 22. Ordered accordingly. 23. Consequently, writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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