JUDGMENT :

(Sonia Gokani, J.)

1. Aggrieved by the judgment and order dated 24.07.2018 passed by the learned Single Judge in Special Civil Application No. 19287 of 2006 whereby the learned Single Judge allowed the matter in favour of the respondents, the appellant begs to prefer this appeal under Clause 15 of the Letters Patent.

2. The respondent no.1 being the exporter of various kinds of pulses and cereals and other materials, received export orders from various overseas importers for import of various cereals, pulses, tuvar dal, red choli and other items. The respondent no.1 entered into a contract of 2500 metric tons approximately. The consideration of entire export is approximately 15 lakhs of USD out of which the petitioner received advance of 20%.

2.1. Out of 106 containers, 20 containers have already been exported from Kandla Port itself. For remaining 84 containers, the respondent handed over all the containers with the shipping agent with all the documents of the Customs Department on 23.06.2006 and 24.06.2006 and it was examined by the Customs Department and thereafter only the Customs Department granted the permission under Section 50 and the order under Section 51 of the Customs Act was passed.

2.2. The Customs Authority granted permission to ship the containers on 24.06.2006 but the vessel did not arrive at the Kandla Port and the containers continue to lie at the port for the purpose of loading the same in the vessel of respondent no.4 and 5. The petitioner acting on behalf of the Government of India, in exercise of powers conferred under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (‘The Foreign Trade Act’ hereinafter) issued notification No. 15 (Re-2006) 2204-09 dated 27.06.2006 whereby amendment had been made in the Import Export Policy, prohibiting the export of tuvar dal, whole gram choli by inserting the entry at sr. no. 44 in Chapter-7 of the Table-B under Schedule-2 of the Indian Trade Classification (ITC).

2.3. The prohibition of export of certain items for a period of six months from the date of issuance of notification dated 27.06.2006 was made with retrospective effect by subsequent notification bearing no. 19(RE-2006)2004-09 dated 04.07.2006.

2.4. On 28.06.2006, the Superintendent (DP) Customs House, Kandla sent a letter and a copy of the notification dated 27.06.2006 issued by the Directorate General of Foreign Trade (DGFT) and requested the respondent no.2 not to allow the shipment of the goods that had already been passed out of the charge by the customs and further requested to furnish the details of such cargo whether stuffed in container or stored in loose, lying in the port area for want of shipment. The respondent no.3 issued a letter dated 29.06.2006 to M/s. Inter Mark Shipping Agencies Private Limited. The respondent no.4 had requested the respondent no.5 not to accept loading of export commodity shown as per the list till further order.

2.5. The respondent no.5 intimated the respondent no. 1 that though they had plan to load the containers on vessel on 28.06.2006 after obtaining the necessary permission but on 29.06.2006, the Assistant Traffic Manager (Container) refused the loading of the said unit and handed over a letter of 29.06.2006 along with the copy of the letter of the Customs Department quoting the reasons of prohibiting certain items in pursuance of notification dated 27.06.2006 by the DGFT and called upon the respondent no.1 that in view of this prohibition, the containers stuffed by the respondent no.1 are lying inside the port and are incurring the port storage charges. It was mentioned that as per the port traffic and line tariff, the container storage and the container detention charges would be debited from the date the units have been handed over to the appellant.

2.6. Vide letter dated 28.06.2006 issued by the Superintendent (DP) Customs House, Kandla directing the respondent no.3 not to allow the shipment of goods that had already been passed out