Point of Law: A perusal of the impugned notification reveals that by virtue of such notification the Central Government, in exercise of powers conferred by section 3 of the Act read with paragraphs 1.02 and 2.01 of the Act as amended from time to time, has amended the import policy of items of Chapter 7 of ITC(HS)2017, Schedule-1 (Import Policy) as provided there under.

JUDGMENT :

BHARGAV D. KARIA, J.

1. Rule returnable forthwith. Learned Standing Counsel Mr. P.Y.Divyeshwar waives service of notice of rule for the respondents.

2. Having regard to the controversy involved, which is in narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for hearing.

3. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs :

“(A)That Your Lordship may be pleased to issue a Writ of Mandamus or any other appropriate writ, order holding and declaring Notification No.53(RE-2013)/2009-2014 dated 2.12.2013 (Annexure-”E”) as ultra vires Section 5 of the Foreign Trade Act, ultra vires Section 14 of the Customs Act and ultra vires Article 14 and 19(1)(g) of the Constitution of India; and consequently striking down this Notification as ultra vires and unconstitutional;

(B) That Your Lordship may be pleased to issue a Writ of Mandamus or a Writ of Certiorari or any other appropriate writ, order or direction quashing and setting aside Demand Notice F.No.VII/48-622/Gr-I/MCH/19-20 dated 16.8.2019 (Annexure-”D”); and be further pleased to direct Respondent No.2 herein to return and restitute Rs.29,47,660/- collected from the petitioner as customs duty on two consignment imported in June, 2019 (detailed at Annexure-”F”) with interest at appropriate rate;

(C) Pending hearing and final disposal of the present petition, Your Lordship may be pleased to stay operation and implementation of Notification No.53(RE-2013)/2009-2014 dated 2.12.2013 (Annexure-”E”) on the terms and conditions that may be deemed fit by this Hon'ble Court;

(D) Pending hearing and final disposal of the present petition, Your Lordship may be pleased to restrain the Respondents, their servants and agents from recovering any amount from the petitioner pursuant to Notice F.No.VIII/48-622/Gr-I/MCH/19-20 dated 16.8.2019 (Annexure-”D”);

(E) An ex-parte ad-interim relief in terms of Para 13 (C) and (D) above may kindly be granted.

(F) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted.”

4. Brief facts of the case are as under :

(4.1) The petitioners are engaged in trading of the various commodities for last seven years and has been importing broken cashew kernels for trading of such commodity in the local market.

(4.2) In the course of business, the petitioners entered into contracts with two Vietnam based suppliers i.e. M/s. Gotec Commodities (Vietnam) Co. Ltd and M/s. Thien Ma Production Trading Import Export Co. Ltd. for purchasing broken cashew kernels from them and regular sale/purchase contracts have been made by the petitioners incorporating therein the commercial details and terms like grade of the commodity, quantity, unit price, shipment time etc.

(4.3) In accordance with the above contracts, both the suppliers have sold and supplied BB grade broken cashew kernels and commercial invoices have been issued for each of the consignment so sold by them. For the said purpose, the price agreed between the parties for the commodity in question has been ranging between 2.10 USD per Kg to 2.50 USD per Kg and the petitioners have actually paid this price only to the above referred suppliers. The price invoiced by the suppliers and paid by the petitioners has thus been the transaction value for the imported goods.

(4.4) The petitioners declared the transaction value for each of the consignments imported by them while filing bills of entry before the customs officers at Mundra Port. The petitioners declared the invoiced price in the bills of entry, which has been ranging between USD 2.10 per Kg to USD 2.502 Kg, which would be around Rs.151/- (approx.) to Rs.180/- (apporx.) per Kg in Indian currency. The customs officers have assessed customs duties on this price taking the same as the assessable value u