2019 Supreme(Bom) 551

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, M.S. KARNIK, JJ.
SIDDHI VINAYAK - Appellant
Vs.
UNION OF INDIA - Respondent
Writ Petition No. 14290 of 2018
Decided On : 02-04-2019

Headnote:

Foreign Trade (Development & Regulation) Act, 1992 – Sections 3,3(1),3(2),3(4), 20,59 - Customs Act, 1962 – Section 11 - General Clauses Act, 1897 – Section 6 - Constitution of India,1950 – Article 226 - Petitioner is a partnership firm duly registered under Indian Partnership Act, 1932 having its registered office at the address mentioned the cause title and is inter alia engaged in business of import and sale of pulses, cereals, spices etc.Respondent no. 1 is the Union of India. Respondent no.2 is an officer of respondent no. 1 discharging duties and exercising powers conferred upon him under the Foreign Trade (Development and Regulation) Act, 1992 and the Foreign Trade (Development and Regulation) Rules, 1993 - Respondent nos. 3 and 4 are officers of respondent no.1 discharging duties and exercising powers conferred upon them under the Customs Act, 1962 and the rules framed thereunder - In ordinary course of its business petitioner entered into Sales Contract for supply of MTS (+/- 10% at the Sellers option) of Whole Yellow or Green Peas falling under Exim Code packed in bulk containers of foreign origin through their overseas supplier M/s ILTA Agribusiness DMCC, Dubai - Terms of the said contract require part sale consideration payment in advance and the balance payment in Cash against documents through petitioners bank at site – Held, Section 4 continues the existing orders made under the Imports and Exports (Control) Act, 1947, which is an Act repealed by section 20 of FTDR Act. Section 5 provides for formulating and pronouncing FTP - If it is formulated and announced by a Notification in the Official Gazette, it can also be amended by the Central Government. In the instant case, what we have on record is the FTP of 2015-2020 - Relevant para of this is contained in Chapter 1A titled as Legal Framework And Trade Facilitation - Clause 1.00 provides for legal basis of foreign trade policy (FTP) and says that it is traceable to section 5 of FTDR Act. Para 1.01 sets out the duration of FTP - Amendment to FTP is provided by para 1.02 and right to amend FTP, by means of notification in public Gazette, is reserved in the Central Government - Handbook of Procedure (HBP) can be issued in terms of para - Then, para 1.04 sets out that the specific provision will prevail over the general - Court mind, therefore, once the notification of April, 2018 is extended till September, 2018 and notification of 29th August, 2018 not wiping out restriction as projected but promptly restoring the earlier notifications and continuing the restriction till September, 2018, further extending it by notification at Exhibit B till December, 2018 makes position clear - There was a restriction and insofar as that notification continuing the restriction till 30th September, 2018 having been withdrawn does not mean that restriction is not in place - Restriction is continuing and withdrawal of the notification will not have that effect as urged by Mr.Shah. The argument of Mr.Shah misses the point totally – Court consider factual position sales contract in this case is dated 19th April, 2018 and the petitioner claims to have made payment of USD on 20th April, 2018 - Petitioner was aware that import policy was amended and import of peas was restricted from April, 2018 to 30th June, 2018 - Then petitioner refers to the notification of 25th April, 2018 and further notification of 2nd July, 2018 extending the restriction on import of peas till 30th September, 2018 - However, petitioner says that it had imported goods prior to any restriction and relies upon the copy of the bill of lading dated 28th August, 2018 (Exhibit H). The petitioner says that Notification No. July, 2018 was withdrawn by second respondent on 29th August, 2018 and then it has issued one more notification imposing restriction till September, 2018 and finally, Notification No 2018 extends the restriction till December, 2018. - Writ petition fails