Heimerle Refinery Private Limited vs The Union Of India & Ors.

(PER M. S. KARNIK, J.) :

The challenge in this writ petition filed under Article 226 of the Constitution of India is to the communications dated 15^th April 2026 and 16^th April 2026 issued by the respondent-authority.

The issue involved in this writ petition is already crystallised in the order dated 5^th May 2026 passed by this Court. The issue involved in this writ petition is “Whether the imported goods which arrive within the territorial jurisdiction of India before the Notification No.02/2026-27 was published on 1^st April 2026 shall be covered under the said notification.” By interim order dated 5^th May 2026, this Court granted interim relief to the petitioner on furnishing an ITC Bond for release of the consignments which arrived on 1^st April 2026 in respect of which Bill of Entry Nos.8411463 and 8418268 were filed on 1^st April 2026. Further, this Court directed the provisional release of the other two consignments vide Bill of Entry Nos.8590663 dated 10^th April 2026 and 8735308 dated 17^th April 2026, on furnishing 50% of the total value of the said two consignments through bank guarantee and supported by ITC Bond for the remaining 50% of the value.

Mr. Shah, learned Senior Advocate for the petitioner, pointed out that no order was passed in respect of the goods for which Bill of Entry No.8590666 dated 10^th April 2026 was filed by the petitioner. In furtherance of the said order dated 5^th May 2026, the goods covered under Bills of Entry Nos.8411463 and 8418268 dated 1^st April 2026 are cleared by the respondents for home consumption upon acceptance of two bonds, both dated 21^st May 2026, executed by the petitioner and accepted by the department. Thus, the dispute in the present writ petition is now restricted to goods not permitted to be cleared by the respondents in respect of Bill of Entry Nos.8590663 dated 10^th April 2026, 8590666 dated 10^th April 2026 and 8735308 dated 17^th April 2026.

In respect of the aforesaid three bills of entry, the petitioner filed Petition for Special Leave to Appeal (C) No.18946 of 2026 before the Hon’ble Supreme Court. By the order dated 29^th May 2026, the Hon’ble Supreme Court, as and by way of an interim measure, permitted the petitioner to apply as per the Office Memorandum dated 13^th May 2026 and directed the Competent Authority to consider and dispose of the said application. The import authorisations dated 9^th July 2026 were issued in terms of the said directions of the Hon’ble Supreme Court. By the order dated 17^th August 2026, the Hon’ble Supreme Court disposed of the SLP, clarifying that this Court will take up and dispose of the above writ petition on its own merits without being influenced by any of the observations or developments that have taken place subsequently.

Now let us refer to the relevant facts. The imported goods were dispatched from the country of export and had arrived in India on 1^st April 2026 at 00:42 a.m. and 2^nd April 2026 at 01:39 a.m., which is prior to the publication of Notification No.02/2026-27 dated 1^st April 2026 (“Notification”, for short) in the Official Gazette on 2^nd April 2026 at 20:52:28 hours, amending CTH 7113 under Chapter 71 of ITC (HS) Schedule I to the Foreign Trade Policy (“FTP”, for short) in respect of the goods from “free” to “restricted”.

The goods were sought to be released by the petitioner on a later date, which was refused by the respondent on the ground of it being restricted goods as per the notification. There is no dispute so far as the aforesaid facts are concerned. The issue involved for consideration is thus :-

Thus, there is no dispute that the goods arrived in India before the publication. There is also no dispute that the Bills of Entry are filed by the petitioner after the notification.

There is no dispute about the rate of duty or the value of the imported jewellery in the present case. The petitioner is not disputing the power to amend the FTP or the validity of the notification. The only contention is that the restriction does not apply to goods already arrived in India before the change of FTP. Thus, the petitioner urged that the date of import would be relevant for applicability of restriction imposed under the FTP on the goods, which undisputedly arrived in India well before the publication of the notification amending the CTH 7113.

Learned Senior Advocate relied upon the following decisions in support of his submissions :-

Learned Senior Advocate laid much emphasis on the decision of the High Court of Gujarat in Enero Jewels Pvt. Ltd. & Anr. (supra) and that of the High Court of Delhi in M/s. Bright Metal Refiners (supra) which according to him are on identical facts. Learned Senior Advocate submitted that these two decisions have been accepted by the Revenue and their goods have been released. It is submitted that the Revenue having not challenged these decisions, even the petitioner would be entitled to the same relief in view of the reasoning.

Mr. Mishra, learned counsel for the Revenue vehemently opposed the writ petition. Our attention is invited to the affidavit-in-reply filed on behalf of the respondent No.5 - The Director General of Foreign Trade affirmed by Mr. Ashwin Golapkar, Deputy Director General of Foreign Trade. For convenience and to appreciate the stand of the respondent No.5 it would be apposite to extract the relevant portion of the detailed affidavit-in-reply filed which reads thus :-

Mr. Mishra thus submitted that the FTP and the DGFT Notification have statutory force since both are issued by the Central Government by deriving authority from a common parent Act, i.e. Foreign Trade Regulation Act, 1992 (“FTDR”). The FTP on which the petitioner relies is formulated by the Central Government by exercising its power under Sections 3 and 5 of the FTDR, whereas the Notification dated 1^st April 2026 has also been issued under Sections 3 and 5 of the FTDR Act, 1992, which amended the import policy of goods falling under CTH 7113 of ITC (HS) 2022, Schedule-I (Import Policy) to change from “Free” to “Restricted” with immediate effect.

The Notification which is later in time contains a specific non obstante clause, which clearly stipulates that the restriction shall apply irrespective of shipment status, prior contracts, or any other commitments, and that the benefit of transitional arrangements shall not be available. The reliance placed by the petitioner on paragraph 2.17(a) of FTP 2023 is misplaced, as the said Notification, having statutory force, overrides the general provisions of FTP 2023, and consequently, the benefit of transitional arrangements is not available. Also, the restriction placed through the said notification is of a later date; hence, the embargo placed through the notification will prevail over the previous one i.e. the FTP 2023.

Mr. Mishra submitted that the argument of the petitioner that the relevant date mentioned in this present matter, being the Airway Bill as per FTP will not be applicable since the notification clearly mentions these restrictions shall apply notwithstanding para 1.05(b) of the FTP 2023 and shall operate irrespective of any prior contract … shipment status, or any other commitment whatsoever. Accordingly, the benefit of transitional arrangements shall not be available. Mr. Mishra heavily relied on the decision of the Hon’ble Supreme Court in Union of India and others vs. Ganesh Das Bhojraj (supra) that the import policy applicable to a consignment is the policy in force on the date of its actual clearance, that is filing/assessment of the bill of entry, and not the date of shipment or arrival of goods.

We have heard learned counsel. We have perused the pleadings, the materials on record and the decisions relied upon in support.

The petitioner imported Studded Platinum Jewellery under 5 Airway Bills dated 30^th March 2026 and 31^st March 2026. There is no dispute that the goods arrived in India prior to the publication of the notification dated 2^nd April 2026 under the FTP in respect of goods from “free” to “restricted”. There is also no dispute that the Bills of Entry for release of the goods were filed after the notification dated 2^nd April 2026 was published in the Official Gazette. There is no dispute about the rate of duty or the value of the imported jewellery in the present case. The petitioner is neither disputing the power to amend the FTP nor the validity of the notification. The only contention is that the restriction does not apply to goods already arrived in India before change of FTP. Thus, the issue is the date of import for applicability of restriction imposed under the FTP on the goods, which undisputedly arrived in India well before the publication of the notification amending the CTH 7113.

The respondents contend that since the goods were pending clearance for home consumption, the restriction on their imports are covered by the notification and are seeking to apply the date of import under the Customs Act, 1962. Paragraph 1.05 (b) of the FTP defines the date of import for the purpose of policy. It reads thus :-

In the present case, admittedly the Bill of Lading and Shipping Bill are the key documents which indicate the date of import and export respectively which is well before the change of policy from 'free' to 'restricted/prohibited/state trading' or 'otherwise regulated'. Thus, the import/export was already made before the date of such regulation/restriction. In our view and as rightly submitted by Mr. Shah, learned Senior Advocate, once the date of import is defined under the FTP, it is not open for the respondents to take recourse to the date of import under the Customs Act. The goods were shipped in terms of the policy.

The issue involved in the present case is squarely covered by the decisions of the High Court of Gujarat in Enero Jewels Pvt. Ltd. & Anr. (supra) and of the High Court of Delhi in M/s. Bright Metal Refiners (supra). The goods were permitted to be cleared even though the bills of entry were filed post the publication of the notification and pending clearance with the Customs. The respondents have accepted the judgments of the High Court of Gujarat and the High Court of Delhi. Their Lordships have decisively concluded the applicability of the notification to the goods which arrived prior to the publication of the notification.

In Enero Jewels Pvt. Ltd. & Anr. (supra), the High Court of Gujarat directed clearance of the consignment without insisting on import authorisation. No bill of entry was filed by the petitioner before the date of the notification. IGM No.3020909 was filed by the Airline. It is only post the judgment, that the petitioner filed the bill of entry only on 22^nd April 2026 and was permitted to clear the goods for home consumption without demur.

In M/s. Bright Metal Refiners (supra), all the goods arrived in India before the publication of Notification and some of the bills of entry were filed post the publication of notification on 3^rd April 2026 and 7^th April 2026. The High Court of Delhi held that the restriction did not apply to goods imported prior to the Notification coming into force and were permitted clearance in accordance with the conditions and legal position that prevailed before the issuance of the said notification. Even in M/s. Bright Metal Refiners (supra), the goods were allowed to be cleared for which the bills of entry were filed post the publication of the Notification and one of the respondents before the High Court of Delhi was the Commissioner of Customs, Air Special Cargo, Mumbai.

Thus, the judgments rendered in Enero Jewels Pvt. Ltd. & Anr. (supra) and M/s. Bright Metal Refiners (supra) have not only attained finality but have been acted upon. It is a settled principle of taxation jurisprudence that the Revenue is bound to maintain consistency in applying the law to similarly situated assesses. Mr. Shah, learned Senior Advocate for the petitioner, placed reliance on the decision of the Hon’ble Supreme Court in Pr. CIT, New Delhi vs. Maruti Suzuki (India) Limited^{1616.(2020) 18 SCC 331 (Para 37)}, and that of the High Court of Allahabad in Samsung India Electronics Pvt. Ltd. vs. State of U.P.^{1717.(2024) 17 Centax 131 (All.) (para 15)} in support.

It is pertinent to refer to paragraph 2.17(a) read with paragraph 11.11 of the Handbook of Procedure, 2023 (“HBP”) for the purpose of FTP, which indicates that the date of reckoning of import is to be decided with reference to the date of shipment/dispatch of goods from the supplying country and not the date of arrival of goods at an Indian port or on the date of clearance for home consumption. Paragraph 2.17(a) of the HBP is extracted below for the facility of convenience :-

The petitioner is not claiming any benefit of transitory provisions contained in paragraph 1.05(b) of the FTP. The transitory provisions apply to goods not arrived in India before change of FTP. Paragraph 1.05(b) of the FTP is extracted below for the facility of convenience :-

Further, paragraph 11.11 of the HBP specifically provides that, in the case of import by air, the date of shipment shall be the date of the relevant Airway Bill, provided it represents the date on which the goods left the last airport in the country of export. For facility of convenience paragraph 11.11 of the HBP is extracted which reads thus :-

The Hon’ble Supreme Court in Viraj Impex Pvt. Ltd vs. Union of India^{1818.2026 (396) E.L.T. 113 (SC) (para 16, 17, 19)} relying on its earlier decision in Union of India vs. G. S. Chatha Rice Mills^{1919.2020 (374) E.L.T. 289 (SC)} held that a notification cannot acquire the force of law prior to its publication in the Official Gazette and that in the era of e-Gazette, the precise hour and minute of digital upload is decisive; and that such a notification cannot operate retrospectively unless authorised by statute.

Thus in view of what has been held by Their Lordships, we have no hesitation in holding that the Notification acquired the force of law only on 2^nd April 2026 at 20:52:58 hours, and it can be validly applied only to the goods dispatched from the country of export after its publication and not to goods already dispatched and arrived in India prior to its publication.

We may make a useful reference to the decision of the High Court of Delhi in M. D. Overseas Limited (supra) which holds that the date of import, for the purpose of application of the provisions of the FTP and HBP, would be the date of shipment/dispatch of goods from the supplying country of export. This date would ordinarily be the date of airway bill issued by the last port from which the goods departed en route to India. M. D. Overseas Limited (supra) has been approved by the Hon’ble Supreme Court in G. S. Chatha Rice Mills (supra).

Let us now deal with the submission of Mr. Mishra, learned counsel for the respondent, that the date of filing of bills of entry is relevant for determining the applicability of the notification issued under the FTP. In our view, the date of filing bills of entry or its clearance/out-of-charge post the restriction is wholly irrelevant and alien to the applicability of a change in the FTP. In terms of Section 15 of the Customs Act, the date of filing of bills of entry is relevant for the rate of duty of customs and, in the present case, the rate of duty is the same prior to and post the Notification. The contention of Mr. Mishra, learned counsel for the respondent is that the decision in Enero Jewels Pvt. Ltd. & Anr. (supra) and M/s. Bright Metal Refiners (supra) are per incuriam having not considered and followed the ratio of the decisions of the Hon’ble Supreme Court in Union of India and others vs. Ganesh Das Bhojraj (supra) and Kiran Spinning Mills (supra). We are in agreement with Mr. Shah, learned Senior Advocate that the aforesaid decisions in Union of India and others vs. Ganesh Das Bhojraj (supra) and Kiran Spinning Mills (supra) are distinguishable. The issue before the Hon’ble Supreme Court was not the one in dispute in the present case, viz. which is the date to be reckoned for import under the FTP.

In Union of India and others vs. Ganesh Das Bhojraj (supra), the petitioner had imported the goods and filed bill of entry on 5^th February 1987 and claimed clearance duty free. Vide notification issued one day prior to filing of the Bill of Entry, the Government had imposed 25 per cent duty. The petitioner therein contended that the said notification though published was not made available to the public at large and therefore customs duty cannot be levied. This Court allowed the writ petition and directed clearance of goods without payment of duty. The Hon’ble Supreme Court, on a reference, held that the notification came into force on the date of its publication in the official Gazette and negatived the contention that the since the notification was not made available to the public at large it did not come into force. Thus, Union of India and others vs. Ganesh Das Bhojraj (supra) dealt with a case regarding change of rate of duty and not applicability of the rate of duty under the Customs Act. Under Section 15(1)(a) of the Customs Act, the relevant date for the rate of customs duty is the date of filing of the bill of entry. Therefore, the rate of duty will be as applicable on the date of filing of bill of entry and not the arrival of the goods in India. Thus, the issue before the Hon’ble Supreme Court was in the context of Section 15 of the Customs Act.

Let us now look at the facts in Kiran Spinning Mills (supra). The importer deposited the goods in the bonded warehouse. Pending clearance of the goods for home consumption, additional duty of excise was imposed vide ordinance dated 3^rd October 1978. The Importer contended that the said ordinance was not promulgated at the time of import into India. The Hon’ble Supreme Court negatived the contention holding that Section 3(6) of the Ordinance makes the provisions of the Customs Act applicable and this would bring into place Section 15 of the Customs act, which inter alia provides the rate of duty which will be payable on the date on which the goods are removed from the bonded warehouse.

It would therefore be clear that for the purpose of Customs Act, the import would be completed when the goods cross the customs barriers and not the day on which the goods had landed in India. On the other hand, for the purpose of reckoning the date of import for applicability of the provisions of FTP is specified in paragraph 1.05(b) of the FTP read with paragraph 2.17 read with paragraph 11.11 of HBP. Paragraph 1.5 (b) of FTP clearly provides that the date of import/export is defined in paragraph 2.17 of HBP. Bill of Lading or shipping bill are key documents for deciding the date of import and export respectively. Having defined the date of import under the FTP, the date of import under the Customs Act cannot be applied, otherwise the date of import defined in the Policy shall be redundant and meaningless. We are of the clear opinion that paragraphs 2 and 3 of the notification have no relevance to the goods imported by the petitioner as they have admittedly arrived in India before the Notification came into force. That the Notification is not made retrospective is admitted by the respondents.

Mr. Mishra, learned counsel for the respondent relied on an Office Memorandum (“OM”) dated 13^th May 2026 issued by the DGFT after the filing of the present writ petition, in which the Joint Director General of Foreign Trade has, in paragraph 3 thereof, purportedly clarified that “any import consignment not cleared before 1^st April 2026 would be governed by the revised ‘Restricted’ policy, irrespective of the date of arrival of goods or fling of Bills of Entry ….”. We are in agreement with the submission of Mr. Shah, learned Senior Advocate that the said OM is not only contrary to the FTP but in the teeth of what has been held in Enero Jewels Pvt. Ltd. & Anr. (supra) and M/s. Bright Metal Refiners (supra). The said OM has no statutory force and cannot override the FTP. The OM is not even subordinate legislation and no authority of law is pointed out in exercise of which the said OM is issued. The Hon’ble Supreme Court in CCE, Bolpur vs. Ratan Melting and Wire Industries^{2020.2008 (12) S.T.R. 416 (S.C.) (para 6, 7)} has held that any clarification of the Board contrary to law declared by the Hon’ble Supreme Court and Hon’ble High Courts is not binding. It was further held that a clarification contrary to statutory provisions has no existence in law. It is well settled that FTP can be amended by the Central Government in exercise of powers under Section 5 of the FTDR Act. The purported clarification by the OM, would literally amount to amending the FTP, which cannot be issued in such a manner contrary to law. The purported clarification amounts to giving retrospective effect to the Notification, which is beyond the jurisdiction of the issuing authority (Officers of the DGFT in the present case) as held by the Hon’ble Supreme Court in Director General of Foreign Trade vs. Kanak Exports^{2121.2015 (326) E.L.T. 26 (S.C.) (para 108)}. In these circumstances, the OM being a mere executive clarification, cannot rewrite/override the statutory definition of “date of import” defined in paragraph 2.17 and paragraph 11.11 of the HBP, and cannot make the impugned Notification retrospective.

We therefore have no hesitation in holding that the import authorisation cannot be treated as the redressal of the petitioner’s grievance, in view of the decisions in Enero Jewels Pvt. Ltd. & Anr. (supra) and M/s. Bright Metal Refiners (supra). The said authorisation-imposed conditions, which were beyond the jurisdiction and authority of the DGFT.

The Writ Petition therefore deserves to be allowed. The respondents are directed to release the goods/consignments covered under Bills of Entry Nos.8590663 dated 10^th April 2026, 8590666 dated 10^th April 2026 and 8735308 dated 17^th April 2026 expeditiously.

It is declared that the notification dated 1^st April 2026 is not applicable to the goods arrived in India before its publication on 2^nd April 2026 at 20:46:52 hours (typographical mistake in the prayer clause which refers to the date of publication as 2^nd April 2027 instead of 2^nd April 2026).

Further, the writ petition is allowed in terms of prayer clauses (a), (c) and (d) which read thus :-

Interim Application (L) No.22543 of 2026 is also disposed of.