Andhra Pradesh High Court - Amravati
The Commissioner Of Customs, vs M/S Omm Agroexim Pvt Ltd on 15 February, 2024
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE MR.JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE R. RAGHUNANDAN RAO
WRIT APPEAL No.147 of 2024
The Commissioner of Customs,
Customs (Preventive) Commisionerate,
55-17-3, C-14, 2nd Floor, Industrial Estate,
Autonagar, Vijayawada - 520 007 & another.
... Appellants
Versus
M/s Omm Agroexim Pvt Ltd, A Company
incorporated under the provisions of the Companies
Act, 2013, having its Registered Office at D.No.37-2-
14, Flat B, Vijayasindhu Residency Market Street,
Kakinada, East Godavari, Andhra Pradesh -
533001, rep. by its Authorised Signatory Mr Pitta
Ashok, & two others.
...Respondents
Mr. Y. N. Vivekananda, Senior Standing Counsel for the appellants.
Mr. S. Srinivasa Reddy, Senior Counsel, a/w Mr. A Muneendhar
Reddy, Counsel for respondent No.1.
Mr. Y. V. Anil Kumar, Central Government counsel, for respondent
Nos.2 & 3.
DATE : 15.02.2024
PER DHIRAJ SINGH THAKUR, CJ (Oral):
The present Letters Patent Appeal has been preferred against
the judgment and order, dated 29.11.2023, passed in I.A.No. 2 of
2023 in/and W.P. No.25933 of 2023.
HCJ & RRR, J
Briefly stated, the material facts are as under:
The petitioner claims to be a company incorporated under the
Companies Act with the objective of carrying out the business of
procurement and export of rice. As a part of its business
transactions, the petitioner claimed that it had entered into
contracts with foreign buyers for supply of non-basmati Indian
white rice. The contracts are stated to have been entered into on
13.07.2023 for supply of 3900 MTs of rice, on 10.07.2023 for
supply of 10,000 MTs of rice and on 11.07.2023 for supply of 5000
MTs of non-basmati Indian white rice. It is stated that the supplies
as per the contracts entered into between the petitioner and the
foreign buyers were to be made by the petitioner before 31.10.2023,
30.11.2023 and 31.01.2024 respectively, failing which the foreign
buyers were entitled to claim damages and the disputes, if any
arising out of the said contracts, would then be subject to
international arbitration.
The petitioner claims that a notification bearing No.20/2023,
dated 20.07.2023, came to be issued by the Union of India, Ministry
of Commerce and Industry, in exercise of the powers conferred
under Section 3 r/w 5 of the Foreign Trade (Development and
Regulation) Act, 1992, r/w paragraphs 1.02 and 2.01 of the Foreign
Trade Policy, 2023, banning and prohibiting the export of non-
basmati white rice (semi-milled or wholly milled rice, whether or
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not polished or glazed:Other) under HS Code 1006 30 90, with
immediate effect.
The notification supra, however, envisaged that consignments
of non-basmati rice would be allowed to be exported under the
following conditions:
" i) where loading of Non-basmati rice on the ship has
commenced before this Notification;
ii) where the shipping bill is filed and vessels have
already berthed or arrived and anchored in Indian ports and
their rotation number has been allocated before this
Notification; The approval of loading in such vessels will be
issued only after confirmation by the concerned Port Authorities
regarding anchoring/berthing of the ship for loading of Non-
basmati rice prior to the Notification;
iii) where Non-basmati rice consignment has been handed
over to the Customs before this Notification and is registered in
their system/ where Non-basmati rice consignment has entered
the Customs Station for exportation before this Notification and
is registered in the electronic systems of the concerned
Custodian of the Customs Station with verifiable evidence of date
and time stamping of these commodities having entered the
Customs Station prior to 20.07.2023. The period of export shall
be upto 31.08.2023.
iv) Export will be allowed on the basis of permission
granted by the Government of India to other countries to meet
their food security needs and based on the request of their
Government."
A trade notice bearing No.23/2023, dated 18.08.2023, came
to be issued clarifying that conditions (i), (ii) and (iii) were
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independent of each other and that export would be permitted to be
completed, if any of the conditions were satisfied by the exporter.
2. The petitioner challenged the impugned notification on
various grounds and took a stand that if the petitioner was not
permitted to export the quantity of the aforesaid rice as per the
contracts entered into by it, it would attract heavy damages by
foreign buyers and result in huge financial loss to the petitioner. It
was the stand of the petitioner that the quantity of rice as per the
contract had already been procured and were stored by the
petitioner at various warehouses at different places prior to the
date of impugned notification and had already incurred crores of
rupees as expenditure in the said process and therefore, sought a
writ of mandamus against the respondents to permit the petitioner
to export approximately 18,900 MTs non-basmati Indian white rice
with HS Code 1006 30 90.
By virtue of an interim order, dated 19.10.2023, the
respondents were directed to permit the petitioner to export the
said rice stored before 20.07.2023 at warehouse upon paying the
requisite export duty in accordance with law.
3. Subsequently, however, I.A. No.2 of 2023 came to be filed
seeking modification of the order dated 19.10.2023, passed earlier
in I.A.No.1 of 2023, in which further directions were sought to the
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respondents to permit the petitioner to export 18,900 MTs of rice
under HS Code 1006 30 90 which quantity was covered under three
contracts all of which were entered into between the petitioner and
the foreign buyers before issuance of the impugned notification,
dated 20.07.2023.
4. The learned single Judge, while allowing I.A.No.2 of 2023
observed that the restrictions operated retrospectively and
impeded the traders from honouring their obligations which were
impermissible, being violative of doctrine of legitimate expectation
and in that view of the matter, the learned single Judge proceeded
to modify the interim order, dated 19.10.2023, passed in I.A. No.1
of 2023 and permitted the petitioner to export 18,900 MTs of the
said rice in terms of the concluded contracts.
At that stage, a statement was made by learned counsel for
the petitioner that in view of the relief having been granted to the
petitioner by way of modification of the earlier order, he did not
wish to press the relief to challenge the constitutional validity of the
notification and in those circumstances, the learned single Judge
proceeded to dispose of the writ petition itself and hence, the
present Appeal.
5. Learned counsel for the appellant urged that the learned
single Judge could not have granted the relief to the writ petitioner
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- respondent herein in the face of the notification, dated
20.07.2023, which was impugned in the writ petition without, in the
least, quashing the same. It was also urged that even when the
petitioner did not fall in any of the conditions prescribed as (i) to
(iv) in the impugned notification, yet permitting the export of the
rice in violation of the same was impermissible in law and against
the policy of the Government whereby an effort was made to
safeguard the nation's food security, as also for purposes of
controlling the prices in the country.
6. Learned counsel for the petitioner - respondent No.1 herein,
however, submitted that it was during the course of arguments
before the learned single Judge that a statement was made that the
petitioner could be permitted to export the rice in case the validity
of the impugned notification was kept intact and it is in those
circumstances that the judgment and order impugned had come to
be passed.
7. From the record, it can be seen that while in some writ
petitions, Courts had permitted as an interim measure the export of
rice, which was stored in the godowns of such petitioners, yet by
virtue of the judgment and order impugned in the present Appeal,
the learned single Judge appears to have permitted the export of
the entire quantity of 18,900 MTs of the said rice which was
otherwise a subject matter of contract between the petitioner and
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the foreign buyers, which, in our opinion, runs contrary to the
notification, which was impugned in the writ petition, on which a
view had to be expressed and the notification impugned had to be
either upheld or set aside, which did not happen in the present case,
in view of the fact that after obtaining the interim relief, the
petitioner very conveniently sought to withdraw the challenge to
the notification itself, which in our view, was impermissible.
For the reasons mentioned above, we set aside the judgment
and order impugned and remand the matter to the learned single
Judge for consideration afresh along with the batch of petitions
which are stated to be listed tomorrow i.e., on 16.02.2024, before
the concerned Bench as per the roster. Registry to post the matter
accordingly. The Writ Appeal is, accordingly, disposed of. No order
as to costs.
Pending miscellaneous applications, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ R. RAGHUNANDAN RAO, J
AKN
HCJ & RRR, J
HON'BLE MR.JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE R. RAGHUNANDAN RAO
DATE : 15.02.2024
AKN
