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2020 Supreme(Bom) 1259
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
UJJAL BHUYAN, ABHAY AHUJA, JJ.
Harihar Collections & Another – Appellant
Versus
Union of India through the Secretary, Ministry of Commerce & Others – Respondent
Writ Petition (L) Nos. 3503 of 2020 & 3502 of 2020
Decided On : 15-10-2020
For the Petitioners:Dr. Sujay Kantawala, P. Choudhari, Samsher Garud, Juhi Valia i/b. Jaykar & Partners, Advocates.
For the Respondents:R4 to R6, Anil C. Singh, ASG with Pradeep S. Jetly, Senior Advocate, J.B. Mishra, R7, Faranaaz Karbhari, Ishwar Ahuja, Khushboo Rupani, Advocates.
The main legal point established in the judgment is that the subsequent review order passed by the Commissioner of Customs was found to be improper, and the court directed the release of the imported goods.
Headnote:
Customs Act - Import of Peas - Section 3 of the Foreign Trade (Development and Regulation) Act, 1992, Section 49 of the Customs Act, 1962 - Summary: The court upheld the notification and trade notice restricting the import of peas. The petitioner imported goods in contravention of the notification and trade notice, leading to confiscation of goods and imposition of penalty. The court found the subsequent review order passed by the Commissioner of Customs to be improper and directed the release of the imported goods.
Fact of the Case:
The petitioner, engaged in the business of exports and imports of agricultural commodities, imported yellow peas in contravention of a notification and trade notice restricting their import. The customs authorities did not permit clearance of the goods, leading to their confiscation and imposition of a penalty.
Finding of the Court:
The court found the subsequent review order passed by the Commissioner of Customs to be improper and directed the release of the imported goods.
Issues: The issues revolved around the legality and propriety of the confiscation of goods and imposition of penalty, as well as the subsequent review order passed by the Commissioner of Customs.
Ratio Decidendi: The court held that the order-in-original was holding the field and had neither been set aside nor stayed. The court found the subsequent review order to be passed in a highly improper manner and concluded that the non-release or withholding of the imported goods of the petitioner would not be just and proper.
Final Decision: The court directed the respondents to forthwith release the goods of the petitioner covered by the bills of entry.
JUDGMENT :-
Ujjal Bhuyan, J.
1. Facts and reliefs sought for being identical in the two writ petitions, those were heard together on 06.10.2020 and are being disposed off by this common judgment and order.
2. We have heard Dr. Sujay Kantawala, learned counsel for the petitioners; Mr. Anil Singh, learned Additional Solicitor General along with Mr. Pradeep Jetly, learned senior counsel for respondent Nos.4 to 6. We have also heard Ms. Faranaaz Karbhari, learned counsel for respondent No.7.
3. Writ Petition (L) No.3503 of 2020 was argued by learned counsel for the parties as the lead case. Therefore, all facts and pleadings mentioned would be in reference to the said writ petition.
4. By filing this petition under Article 226 of the Constitution of India, petitioner has sought for the following reliefs:-
1) To set aside and quash communications dated 02.09.2020 of respondent Nos.5 and 6;
2) To direct the respondents, more particularly respondent Nos.4 and 7, to clear the goods imported by the petitioner vide bills of entry bearing Nos.5720040, 5720192, 572069, 5722458, 5722730, 5719772, 5722243 and 5722456, all dated 18.11.2019.
4.1. In the other writ petition i.e., Writ Petition No.3502 of 2020, in addition to relief No.1, petitioner seeks direction to the respondents, more particularly respondent Nos.4 and 7, to clear the goods imported by the petitioner vide bills of entry bearing Nos.5520732, 5520871 and 5520536, all dated 01.11.2019.
Case of the Petitioner
5. Petitioner is a proprietorship firm having its registered office at Jaipur, in the State of Rajasthan. It is engaged in the business of exports and imports of agricultural commodities.
6. Government of India in the Ministry of Commerce and Industry (Department of Commerce) had issued a notification dated 29.03.2019 in exercise of powers conferred by section 3 of the Foreign Trade (Development and Regulation) Act, 1992 read with paragraphs 1.02 and 2.01 of the Foreign Trade Policy, 2015-20 amending the import policy in respect of peas (pisum sativum) including yellow peas, green peas, dun peas and kaspa peas having Exim code 0713 1000. By the said notification, the said items have been put under restricted category allowing import upto total quantity of 1.5 lakh MT. This was followed by trade notice No.6 of 2019-2020 dated 16.04.2019 laying down the modalities for import of peas.
7. M/s. Raj Grow Impex LLP moved the Rajasthan High Court at Jaipur by filing writ petition bearing Writ Petition No.11974 of 2019 challenging the above notification and trade notice. Rajasthan High Court by order dated 20.07.2019 issued notice and stayed the operation and effect of the aforesaid notification and trade notice qua the petitioner (M/s. Raj Grow Impex LLP).
8. Similar writ petitions were filed by different importers in different High Courts of the country.
9. In view of the aforesaid development, petitioner placed orders for import of yellow peas, consignments of which were received in several batches in the month of November, 2019. The said consignments were covered by eight bills of entry bearing Nos.5720040, 5720192, 572069, 5722458, 5722730, 5719772, 5722243 and 5722456, all dated 18.11.2019, for total quantity of 38,500 MT.
9.1. However, customs authorities did not permit clearance of the above goods. As a result, petitioner was forced to shift the entire consignment of yellow peas to customs warehouse under section 49 of the Customs Act, 1962 (briefly ‘the Customs Act’ hereinafter). It is stated that in order to ensure that the yellow peas were not damaged, fumigation had to be carried out regularly to prevent insect contamination. This resulted in incurring of further expenditure by the petitioner in addition to rent paid to the customs warehouse.
10. Government of India, Ministry of Commerce and Industry, Department of Commerce (Directorate General of Foreign Trade) issued notification No.37/2015-20 dated 18.12.2019 whereby it was notified that import of peas (pisum sativum) including
