* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 5th July, 2011
C.M. No. 8010/2011 in WP(C) 3839/2011
M/S BHOLE BABA DAIRY INDUSTRIES LTD. ..... Petitioner
Through : Mr. Maninder Singh, Sr. Adv.
with Mr. J.S. Bakshi and Mr.
Amitesh Singh, Advs.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through : Mr. Nitish Gupta and
Mr. Ravinder Aggarwal, CGSC
for respondent No.1 and 2
Mr. Mukesh Anand and
Mr. Shailesh Tiwari, Advs. for
respondent No.3
CORAM:-
HON'BLE MR JUSTICE MANMOHAN SINGH
HON'BLE MR JUSTICE SURESH KAIT
1. Whether Reporters of local papers may be allowed to
see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes MANMOHAN SINGH, J
1. The petitioner has filed the present writ petition under Article 226 and 227 of the Constitution of India thereby amongst others challenging the Notification No. 23 (RE-2010)/2009-2014 dated 18.02.2010(ANN-P-I), Notification No. 25 (RE-2010)/2009- C.M. No. 8010/2011 in WP(C) 3839/2011 Page 1 of 23 2014 dated 24.02.2011 (ANN-P-II), Notification No. 37 E (RE- 2010)/2009-2014 dated 24.03.2011 (ANN-P-III) and sought other reliefs.
2. The matter was listed first time before the court on 31.05.2011 when notice was issued. On oral request the prayer to implead the Custom Authority was allowed. The matter was adjourned to 17.06.2011 before the Vacation Division Bench. When the matter was listed on 17.06.2011, time was granted to file the reply to the Custom Authority who is the main contesting party.
3. Learned counsel appearing on behalf of the petitioner has made a statement before us that at this stage the petitioner is only pressing the following relief made in CM. No. 8010/2011 which is listed for disposal:
To permit the petitioner to export 135 MT of casein lying at ICD Tuglkabad, New Delhi and 70 MT of casein lying in the godowns of the petitioner. Further the petitioner be permitted to fulfill their total pending export orders of 560 MT of Casein as enumerated in ANN-P-XII.
4. Both the parties were heard in the interim application and orders were reserved on 27.06.2010.
5. The brief facts of the case relevant for the disposal of the C.M. No. 8010/2011 in WP(C) 3839/2011 Page 2 of 23 present writ petition are that the petitioner is a manufacturer of dairy products having factory at Agra-Aligarh By-pass Road, Khaireshwar Dham (U.P.) which is duly registered with the Central Excise Division-Aligarh (Lucknow Commissionrate) under Registration No. AACCB2221MXM001.
6. The petitioner is eligible for opting clearance of goods for export and examination thereof at the factory itself in terms of CBEC‟s Circular No. 60/2001-Cus dated 01.11.2001, being a Central Excise registered manufacturer. It is the admitted position that the petitioner had time to time applied and obtained the permission for factory stuffing under Excise provision in terms of the aforesaid Circular.
7. The petitioner had time bound export contractual obligations of 560 MT of casein prior to 18.02.2011, the details of the order in respect of the same are:
(i) P.O. No.0004916 dated 21.01.2011 quantity 153MT.
(ii) P.O. No.0004930 dated 07.02.2011 quantity 102MT.
(iii) P.O. No.11563 dated 25.01.2011 quantity 51 MT.
(iv) P.O. No.11566 dated 14.02.2011 quantity 102 C.M. No. 8010/2011 in WP(C) 3839/2011 Page 3 of 23 MT.
(v) P.O. No.0004920 dated 24.01.2011 quantity 102MT.
(vi) P.O. No.LE 110046 dated 02.02.2011 quantity 50MT.
8. Consignment of 135 MT of casein was made ready for export to the importers. The petitioner filed four shipping bills and sought factory stuffing permission in respect of the same. In terms of the factory stuffing permission the petitioner requisitioned seven containers for stuffing of the consignments for exports at the petitoner‟s permission and thereafter applied to the jurisdictional Central Excise Officers for examination of the goods, stuffing thereof in the containers, seeking of the containers and endorsement of the ARE-1‟s.
9. The excise officers examined the goods under four shipping bills (in seven containers) on 16.02.2011, 16.02.2011, 16.02.2011 and 18.02.2011 and thereafter the same were removed from the factory on the same very date and they were handed over at ICD Tuglakabad on 17.02.2011 (at 06:07 am and 06:06 am in two containers); 18.02.2011 (at 04.26 am and 04.26 am in two containers); 17.02.2011 (at 07:23 am and 11:49 am in two containers);19.02.2011 (at 2.47 am in one container). A chart C.M. No. 8010/2011 in WP(C) 3839/2011 Page 4 of 23 depicting the said movement of goods is already filed.
10. In the meanwhile, three notifications were isued by respondent No.2 i.e. Notification No.23(RE-2010)/2009-2014 dated 18.02.2011, Notification No.25 (RE-2010/2009-2014) dated 24.02.2011, Notification No.37 E(RE-2010)/2009-2014 dated 24.03.2011 issued by the respondent No.2 purportedly in the exercise of the powers conferred by the Section 5 of the Foreign Trade (Development & Regulation) Act, 1992 whereby Director General of Foreign Trade has prohibited the export of inter alia various milk and milk products, including „casein‟ and „casein products‟, which the petitioner was exporting.
11. The containers of the goods arrived at ICD Tughlakabad on various dates and the petitioner thereafter presented the Shipping Bills to the adjudicating authority for formal „Let Export Order‟, however, the adjudicating authority disallowed the exports on the reason that the goods that the goods were presented for examination before the Custom Officer on 21.02.2011. Therefore, it cannot be permitted in terms of the said notification. Thereafter the petitioner filed the appeal in the office of Commissioner of Customs (Appeals) bearing No. CCA/ICD/207/2011.
12. After hearing the parties on 27.04.2011, the said appeal was allowed and the impugned order disallowing the export of the in C.M. No. 8010/2011 in WP(C) 3839/2011 Page 5 of 23 goods was set aside. The Commissioner of Customs (Appeals) came to the conclusion that the said order was not legal in view of the notification No. 31/1997-Cus(NT) dated 07.07.1997 wherein it is mentioned that all Supreintendents and Inspectors of Central Excise Department in any place of India have been appointed as Officers of Customs and therefoere presentation of goods for examination before the jurisdictional Central Excise Officers for export is nothing but presentation of goods for Customs examination for export in terms of Para 9.12 of the Foreign Trade Policy and the stipulatinos of Notification 37 (RE-2010)/2009-2014 dated 24.03.2011. As the goods were presented for examination before the said officers prior to 18.02.2011 the exports are not hit by the probhibition imposed under the Notification 23(RE-2010)/2009-2014 dated 18.02.2011 as the same are covered under transitional provision of the said notification.
13. The operating part of order of Commissioner (Appeals) dated 27.04.2011 reads as under:-
"I find that in terms of Para 9.12 of the Handbook of procedures 2009-14, in change of policy provisions, the same shall not be applicable to the consignment already handed over to Customs for examination and subsequent exports upto public Notice/Notification date. The relevant provisions are as below:
"However, wherever procedural /policy provisions have been modified C.M. No. 8010/2011 in WP(C) 3839/2011 Page 6 of 23 to disadvantage of exporters, same shall not be applicable to consignment already handed over to Customs for examination and subsequent exports upto Public Notice/Notification date.
Similarly, in such cases where goods are handed over to the customs authorities before expiry of export obligation period but actual Exports take place after the expiry of the export obligation period, such exports shall be considered within export obligation period and taken towards fulfillment of export obligation."
I find that export goods can be stuffed in containers at the Port of Export as well as at the factory premises of a manufacturer. The Appellant being a registered unit under the Central Excise registered with Registration No. AACCB2221 MXM001 was permitted factory stuffing in terms of CBEC's circular No.60/2001 dated 01.11.2001. I also find that in terms of Notification 31/1997-
Cus(NT) dated 07.07.1997 all Superintendents and Inspectors of Central Excise Department in any place of India have been appointed as Officers of Customs and therefore presentation of goods for examination for export in terms of para 9.12 of the Foreign Trade policy and the stipulations of Notification No.37 E(RE- 2010)/2009-2014 dated 24.03.2011(ANN-P- III). As the goods were presented for examination before the said officers prior to 18.02.2011, the exports are not hit by the prohibition imposed under Notification No.23 (RE-2010)/2009-2014 dated 18.02.2010 (ANN-P-I) as the same are covered under transitional provision of the said notification.C.M. No. 8010/2011 in WP(C) 3839/2011 Page 7 of 23
In view of the above, the impugned order is not legal and is therefore set aside."
14. Learned counsel appearing on behalf of respondent No.3 has informed the Court that the order dated 27.04.2011 has been challenged by the respondent No.3 by filing an appeal on 23.06.2011 before the Custom Excise and Service Tax Tribunal, New Delhi. Since the said appeal is yet to be listed and there is no stay of the operation of the said order, thus, the order dated 27.04.2011 is operational.
15. The main concern of the petitioner at this stage is that the petitioner has already suffered a demurrage to the tune of rupees Twenty lacs, (now Twenty Seven lacs approximately) and the same is being continued to be levied at an escalating rate. Further the product in question „casein‟ has no domestic market. It has a shelve life of one year. The goods in question were manufactured in January-February 2011. Thus, the five months have passed. After clearance the required shipping time to destination is one and a half month and the importers also accept the product if approximate six months of the shelve life of the products is remaining. As on date five and a half months of shelve life of the product only remains. C.M. No. 8010/2011 in WP(C) 3839/2011 Page 8 of 23
16. The petitioner states that the effect of the impugned notifications is that all the plant and machinery worth crores of rupees is lying idle and the dues of the bank over Rs.150 Crores are mounting and the Petitioner has the liability of paying the interests and term loan repayment. The Petitioner has given direct employment to hundreds of skilled and unskilled workers, professionals, technicians, scientists in the filed of Diary Science, Nutrition, Veterinary, Food Technology, life sciences and research professionals.
17 The petitioner imported machinery against the EPCG license. As pr the terms of this license, import duty was partially waived of against the guarantee given by the petitioner that they will make exports to the tune of certain crores and as per the said license. If the petitioner fails in discharging the said obligation, then the petitioner shall have to pay the import duty that was waived on the import of the machines along with interest.
18. The petitioner submits that Commissioner of Customs ICD Tuglakabad New Delhi has not till date, permitted the Petitioner to export 135 MT of casen of the Petitioner, in spite of the clear Orders dated 27.4.2011 passed by the Commissioner (Appeals) in the Appeal filed by the Petitioner wherein he, inter alia, held that the petitioner was to be permitted to export Casen as the case of the C.M. No. 8010/2011 in WP(C) 3839/2011 Page 9 of 23 Petitioner was covered under notification dated 24.03.2011. Therefore, the petitioner had no alternative except to file the present writ petition.
19. It is also mentioned in the petition that the Additional Commissioner Customs ICD Dadri NOIDA in the matter of another exporter vide orders dated 04.05.2011 was pleased to permit the export of the skimmed milk powder in respect of the goods as were handed over to the Customs for export before the dead line i.e., 18.02.2011 as per the notification dated 24.03.2011 and the examination of the goods by the „Excise Officer‟ were taken to be examination by the „Customs Officer‟.
20. It is further stated by the petitioner that in the case of M/s VRS Foods Ltd., the department did not file any appeal against the Orders dated 04.05.2011 of Addl. Commissioner Customs, ICD Dadri ANN-P-XVI Page 122 and athe product which was factory stuffed and examined by officers of the Central Excise was permitted to be exported by the Custom Officials.
21. Respondent No. 3 has filed reply affidavit of Sh. Navraj Goel, Deputy Commissioner of Customs (Export) on 24.6.2011 who has stated in his affidavit that the petitioner export 135 MT of casein is hit by prohibition imposed under notification 23(RE- 2010)/2009-2012 dated 18.2.2011. In the affidavit it is not denied C.M. No. 8010/2011 in WP(C) 3839/2011 Page 10 of 23 that the petitioner filed four shipping bills for export of Acid Casein at ICD, Tuglakabad which are on or before 18 th February, 2011. However, the contention of the respondent No. 3 is that the date of assessment of shipping bill and the date of production of cargo to customs were subsequent to the date of notification as the cargo was handed over to the customs for examination and export subsequent to the said date. In nut shell, respondent No. 3 states that the goods ought to have handed over to the customs on or before 18 th February, 2011 for examination of export. Further contention of respondent No. 3 is that in case of factory stuffed cargo, where goods are examined in the factory in the presence of jurisdiction Central Excise Officers, the goods are not produced to Customs at the ICD/Port. Hence, it was not permissible to permit export of impugned goods due to prohibition in the notification.
22. Other submission of learned counsel for respondent No. 3 is that since the appeal has been filed by the respondents against the order dated 27th April, 2011 therefore the issue in question is now sub-judice and no order can be passed in the present writ petition, however, some directions may be issued to the CESTAT for early disposal of the appeal filed by respondent No. 3.
23. Now the question before this Court is as to whether the exports are hit by prohibition imposed under notification dated 18th C.M. No. 8010/2011 in WP(C) 3839/2011 Page 11 of 23 February, 2011 or some are covered under transitional provision of the notification and in terms of notification 31/1997-Cus(NT) dated 7th July, 1997 wherein the Superintendents and Inspectors of Central Excise Department in any place of India have been appointed as Officers of Customs and therefore the presentation of goods for examination before the jurisdictional Central Excise Officers for export is nothing but presentation of goods for Customs examination for export.
24. The notification No. 31/97-Cus.(N.T.), dated 7th July, 1997 reads as under:-
"Appointment of Appraisers, Examiners, Superintendents, Inspectors, Preventive Officers, Women Searchers, Ministerial Officers and Class IV officers in the Customs Department in any place in India. Officers of DRI, Narcotics Control Bureau and EIB appointed as "Officers of Customs". - In exercise of the powers conferred by sub-section (1) of section 4 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 38/63-Customs, dated 1st February, 1963 the Central Government hereby appoints the following persons to be the Officers of Customs, namely:-
1. Appraisers, Examiners, Superintendent Customs (Preventive), Preventive Officers , Women Searchers, Ministerial Officers and Class IV Officers in the Customs Department in any place in India.C.M. No. 8010/2011 in WP(C) 3839/2011 Page 12 of 23
2. Superintendents, Inspectors, Women Searchers, Ministerial staff and Class IV staff of Central Excise Department, who are for the time being posted to a Customs port, Customs airport, Land-Customs station, Coastal por, Customs preventive post, Customs Intelligence post or a Customs warehouse.
3. Superintendents, and Inspectors of Central Excise Department in any place in India.
4. All Officers of the Directorate of Revenue Intelligence.
5. All Officers of the Narcotics Control Bureau.
6. All Intelligence Officers of the Central Economic Intelligence Bureau."
25. The learned counsel for respondent No. 3 has not shown/produced any other contrary notification other than the notification dated 7th July, 1997 referred by the learned counsel for the petitioner wherein it is clearly mentioned that all the Superintendents and Inspectors of Central Excise Department in any place of India have been appointed as Officers of Customs.
26. In the present case it is not disputed fact that the petitioner is eligible for opting clearance of goods for exports and examination thereof at the factory itself in terms of CBEC‟s Circular No. 60/2001-Cus dated 01.11.2001 and the exports are permissible for dairy products manufactured by the petitioner till 18.02.2011. The respondent No.3 has also not disputed the fact that the petitioner C.M. No. 8010/2011 in WP(C) 3839/2011 Page 13 of 23 sought stuffing permission in respect of the same. The Circular No. 60 dated 1st November, 2001 referred by the petitioner reads as under:-
"CIRCULAR NO. 60 DATED
st
1 November 2001
I am directed to refer to Board‟s instructions issued vide telex/ letter F.No. 434/47/95- Cus.IV, dated 9.10.95 and Circular No. 90/98-Cus. dated 8/12/98 regarding factory stuffing on containers with export cargo. The said instructions provide detailed guidelines for factory stuffing of container. It has been brought to the notice of the Board by the trade that exporters are required to obtain permission for factory stuffing from Customs every six months. It has been suggested that the Customs should do away with the practice of six monthly permission for factory stuffing and this should be made one time permission.
2. The matter has been examined by the Board. It has been decided to discontinue the practice of renewal of permission for factory stuffing every six months. The permission for factory stuffing shall be granted on one time basis and exporters shall not be required to come to Customs every six months for renewal of the same.
However, in case something adverse is noticed against the exporter, the Customs may withdraw the permission.
3. These instructions may be brought to the notice of all concerned by way of C.M. No. 8010/2011 in WP(C) 3839/2011 Page 14 of 23 issuance of suitable Public Notice/ Standing Order.
4. Difficulties, if any, in implementation of these instructions, may be brought to the notice of the Board. Kindly acknowledge receipt of this circular.
G. Circular No. 20/2010-Customs F. No.450/ 98 /2010-Cus.IV Government of India Ministry of Finance Department of Revenue Central Board of Excise & Customs North Block, New Delhi 22nd July, 2010 To All Chief Commissioners of Customs / Customs (Prev.).
All Chief Commissioners of Customs & Central Excise.
All Commissioners of Customs / Customs (Prev.).
All Commissioners of Customs (Appeals).
All Commissioners of Customs & Central Excise.
All Commissioners of Customs & Central Excise (Appeals).
Subject: Provision of single factory stuffing permission valid for all Customs Houses - regarding.
Sir/ Madam,
I am directed to invite your attention
to Board's instructions issued vide
telex/letter F.No.434/47/95-Cus.IV, dated 9.10.95, Circular No. 90/98-Cus dated 8/12/98 and Circular No. 60/2001-CUS C.M. No. 8010/2011 in WP(C) 3839/2011 Page 15 of 23 dated 1st November, 2001 regarding Permission for factory stuffing.
2. The Task Force of the Department of Commerce to reduce transaction cost involved in exports has recommended the grant of a single factory stuffing permission valid for all the customs stations instead of customs station wise permission. This recommendation has been accepted by the Government.
3. Accordingly, it has been decided by the Board to provide for the grant of a single factory stuffing permission valid for all the customs stations instead of customs station wise permission. The facility will be subject to the following safeguards:
(i) The exporter may be asked to furnish to customs a list of customs stations from where he intends to export his goods.
(ii) The customs house granting the factory stuffing permission should maintain a proper register to keep a track-record of such permissions, and also create a unique serial number for each of such permissions.
(iii) The customs house granting the factory stuffing permission should circulate the permission to all customs houses concerned. The communication should clearly indicate the name and contact details of the Preventive Officer/Inspector and Superintendent concerned of the customs house granting the permission as well as those of the Central Excise Range concerned to facilitate real time verifications, if required.
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 16 of 23
(iv) In case, something adverse is noticed against the exporter, the customs station concerned shall promptly intimate the customs house which has granted the permission, which will, in turn, withdraw the permission, and inform to all customs houses concerned.
4. Board‟s earlier instructions /circulars stand modified to the extent mentioned above.
5. These instructions may be brought to the notice of all concerned by way of issuance of suitable Public Notice / Standing Order.
6. Difficulties, if any, in implementation of the Circular may be brought immediately to the notice of the Board.
Yours sincerely, (Navraj Goyal) Under Secretary (Customs)"
27. In case we see the entire matter on merit, it is obvious that in fact, the petitioner has filed the present petition for compliance of the said order dated 27.04.2011 passed by the Commissioner of Customs (Appeals). It is not denied by the respondent No.3 that on the date of filing of the petition, the petitioner has incurred demurrage of Rs. 20 lac and the amount of demurrage against the petitioner are continuing every day. The petitioner‟s case is that the notification dated 18.02.2011 was issued C.M. No. 8010/2011 in WP(C) 3839/2011 Page 17 of 23 without any intimation/notice whatsoever given by the respondents to the petitioner or any concerned parties though many courts have time and again held that legitimate expectations but a fact of the Rule of Law and Administrative action must be in conformity with the Legitimate Expectation of persons. The petitioner says that in view thereof, the respondents have no power to take away any vested rights with retrospective effect.
28. The respondent No.3 has not disputed the fact that the Excise Officers examined the goods under four shipping bills (in seven containers) on 16.02.2011, 16.02.2011, 16.02.2011 and 18.02.2011 and thereafter the same were removed from the factory on the same very date and they were handed over at ICD Tuglakabad on 17.02.2011 (at 06:07 am and 06:06 am in two containers); 18.02.2011 (at 04.26 am and 04.26 am in two containers); 17.02.2011 (at 07:23 am and 11:49 am in two containers);19.02.2011 (at 2.47 am in one container). The defendant No.3 has also not denied that the containers of the goods arrived at ICD Tughlakabad on various dates and the petitioner thereafter presented the Shipping Bills to the adjudicating authority for formal „Let Export Order‟.
There is a force in the submission of the petitioner that the petitioner has completed all the formalities for exportable goods under the compliance of notification dated 07.07.1997 which provides C.M. No. 8010/2011 in WP(C) 3839/2011 Page 18 of 23 that all Superintendents and Inspectors of Central Excise Department in any place of India have been appointed as Officers of Customs.
29. In terms of para 9.12 of Handbook procedures 2009-14, which provides that in case of change of policy provisions, the same shall not be applicable to the consignment already handed over to Customs for examination and subsequent exports up to Public Notice/Notification date. The relevant provisions are as below:
"However, wherever Procedural/Policy provisions have been modified to disadvantage of exporters, same shall not be applicable to consignments already handed over to Customs for examination and subsequent exports upto Public Notice/Notification date.
Similarly, in such cases where goods are handed over to the customs authorities before expiry of export obligation period but actual Exports take place after expiry of the export obligation period, such exports shall be considered within export obligation period and taken towards fulfilment of export obligation."
The grievance of the petitioner is that the respondent No.3 has not informed the concerned parties about the notification dated 18.02.2011otherwise there was no occasion on the part of the petitioner not to comply any other formality, if left and is required by the custom authorities.
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 19 of 23
30. After having considered the above, we feel that in case there is any procedural delay, the petitioner cannot be blamed as the petitioner has completed the formalities in terms of notification dated 07.07.1987. Therefore, it is apparent on the face of it that the exports are not hit by the provision imposed under the notification dated 18.02.2011.
31. It is not understood why the respondent No.3 has not challenged the order dated 27.04.2011 promptly if respondents were serious about the said order, rather the appeal was filed after filing the present writ petition by that time the petitioner had to incur demurrages of Rs. 20 lac on the date of filing.
32. In similar situations in the case of M/s VRS Foods (supra) orders were passed by Additional Commissioner, ICD on 4 th May, 2011 and in the said case the goods were examined by the Central Excise Officer under their supervision for container No. SGCU 2458144 & TGHU 0144617 and brought in the customs area on 18.02.2011 (but after office hours) already had been examined by the Central Excise Officer on 18.02.2011.
33. The respondents have banned the export casein which is made from less than 0.25% of the total milk production in the country as per the case of the petitioner while it is an admitted position that C.M. No. 8010/2011 in WP(C) 3839/2011 Page 20 of 23 the respondents have not banned the export of the other milk products like cheese, ghee, butter etc.
34. In the present case, in case the export of Casein and Casein products of the petitioner are not allowed, it will cause irreparable loss and injury to the petitioner as the said goods cannot be re-used. It is also a fact that there is no loss of custom duty as admitted by the respondent No.3. Therefore, the balance of conveyance even otherwise lies in favour of the petitioner and against the respondents. The Division Bench judgment of Bombay High Court titled Parag Milk and Milk Products Ltd. v. Union of India dated 16th August, 2007 has allowed the export in similar situation. Para 10 of the judgment reads as under:-
"10. The above principles, if applied to the present case, would show that the doctrine of legitimate expectancy, and for limited extent of constructive promissory estoppel, would have some application. The petitioner has invested huge amount to establish a plant and export facilities of international standards. The declared policy was to operate during the period of 2004 to 2009. Prospective application of the ban is not in question before us. On various grounds the same could even be justified. However,if the concluded contracts, which have been acted upon between the parties partially prior to the cut off date are not fulfilled, it would, to a great extent, amount to disturbing the settled things. Such an approach would be greatly unacceptable in view of the fact that the respondent themselves had reserved the C.M. No. 8010/2011 in WP(C) 3839/2011 Page 21 of 23 right to examine on case to case basis the existing export obligations. Nowhere in the order, and for that matter even in the counter affidavit, it is stated what would be the existing export obligation and under what circumstances the benefit of the decision could be given to the affected parties. Public interest is a term of wide connotation and it has to be considered keeping in view the facts and circumstances of each case. The Authorities concerned while passing the order dated 30th April, 2007 had ignored these aspects of the matter while it has taken into consideration what is not on record. There is nothing even on the court file to show as to what is intended by existing export obligation, simplicity except obligation in relation to free trade items. We may also notice that on 20th April, 2007 some discussion had taken place between the Director General of Foreign Trade, Ministry of Commerce and the petitioner. Vide their letter of the same date they had stated that as per the discussions the petitioner may be allowed to export 5000 M.T. Skimmed Milk Powder against existing contractual obligations. Thus the petitioner was even willing to restrict its trade to export of 5000 M.T. The impugned order does not even touch this aspect of the matter in its proper perspective."
35. From the above discussion, we allow the interim application filed by the petitioner. We direct the respondents to allow the petitioner to export the goods in question in terms of the prayer made in the application.
C.M. No. 8010/2011 in WP(C) 3839/2011 Page 22 of 23 WP(C) 3839/2011 Notice has already been issued in the writ petition. The respondent No.3 is granted four weeks time to file the counter affidavit with advance copy to the learned counsel for the petitioner who may file the rejoinder thereto within two weeks thereafter.
List the matter before the Roster Bench on 26.08.2011.
MANMOHAN SINGH, J.
SURESH KAIT, J.
JULY 05, 2011 ns/ak/dp C.M. No. 8010/2011 in WP(C) 3839/2011 Page 23 of 23