Renil TP vs Union Of India And Others

Sabyasachi Bhattacharyya, J

Affidavit-of-service filed in Court today be taken on record.

Despite service, none appears on behalf of the respondent nos. 4 to 6, although respondent nos. 1 to 3 are represented through counsel.

The challenge in the present writ petition is against a communication, which has been annexed as Annexure- P6 at page - 43 of the instant writ petition dated December 9, 2019, asking for immediate stoppage of all export of fresh onion from the customs formations.

Such communication was issued by the office of the Commissioner of Customs (Preventive), West Bengal Custom House, to the Deputy/Assistant Commissioner/Superintendent of Customs, Petrapole Export/Petrapole Circle/ Ghojadanga/ICD Durgapur etc. In the communication, such direction was issued, apparently pursuant to a communication received from the Joint Secretary (Customs) dated November 11, 2019, along with a memo dated December 3, 2019 issued by the Director General, Government of India, Ministry of Commerce & Industry, DGFT, New Delhi.

Learned counsel appearing for the petitioner argues that, vide notification dated September 29, 2019 it was, inter alia, decided that the export policy on onion for the item description at Serial Numbers 51 and 52 of Chapter- 7 of Schedule- 2 of ITC (HS) classification of Export and Import items is amended from free to prohibited till further order, thereby stopping export of fresh onions.

However, by a notification, the amendment in Para- 1.05(b) of Foreign Trade Policy 2015-2020 annexed at page- 30 of the present writ petition, published in the Gazette of India Extraordinary Part-II, Section 3, Sub-Section (II) by the Government of India, Ministry of Commerce & Industry, Department of Commerce, Directorate General of Foreign Trade, it was stipulated that the import/export on or after the date of such regulation/restriction will be allowed if the importer/exporter has a commitment through Irrevocable Commercial Letter of Credit (ICLC) before the date of imposition of such restriction/regulation and shall be limited to the balance quantity, value and period available in the ICLC. For operationalising such ICLC, the applicant shall require to register with the ICLC with jurisdictional RA against computerised receipt within fifteen days of imposition of any such restriction/regulation.

Learned counsel for the petitioner, by placing reliance on Annexure- P4 at page 29 of the writ petition, submits that such restriction would be apparent from the communication dated October 16, 2019 issued by the Office of the Deputy Director General of Foreign Trade.

It is, thus, argued that in view of the registration pursuant to revision in the Foreign Trade Policy, the petitioner was entitled to export the balance quantity of onions, in view of the petitioner having entered into a commitment through Irrevocable Commercial Letter of Credit annexed at page- 26 of the instant writ petition.

Learned counsel appearing for the respondent nos. 1 to 3 argues that although the Commercial Letter of Credit was issued initially in the name of the petitioner on July 15, 2019, the same was amended on October 13, 2019, as apparent from Annexure- P2 itself, which is even after the petitioner applied for registration in terms of the Amended Foreign Trade Policy, which application was made vide letter dated October 9, 2019, as reflected from Annexure- P4 itself.

In such view of the matter, since the effective date for all practical purposes of the amended Commercial Letter of Credit was from a date after coming into force of the notification dated September 29, 2019, the said Letter of Credit ought to be deemed to have been issued in its amended form subsequent to the cut-off date as mentioned in the amendment of the Foreign Trade Policy at page - 30, relied on by the petitioner.

However, it appears from the amendment, which is the primary bone of contention, that the same was not the issuance of a new Letter of Credit but merely an amendment to the Letter of Credit, which was issued on July 15, 2019, much prior to the date contemplated in the amendment in the Foreign Trade Policy.

It is to be deemed that such amendment dated October 13, 2019 related back to the date of issuance, that is, July 15, 2019, because of the simple reason that "commitment", as envisaged in the amendment in Para- 1.05(b) of the Foreign Trade Policy 215-220 was entered into as far back as on July 15, 2019, irrespective of subsequent amendments which would obviously relate back to the date of issuance of Letter of Credit.

It cannot be interpreted, on the face of it, that the commitment of the petitioner started anew from the date of amendment, since the expression "amendment" itself indicates that the same is an alteration of the commitment, which was already entered into on July 15, 2019 and was to expire on January 7, 2020. Since the date of expiry of the original Letter of Credit remained the same and the amendment to it was only an alteration in the commitment already entered into by the petitioner, it cannot be said that the amendment of the Foreign Trade Policy was not applicable to the present case.

Moreover, the argument as to the soaring price of onions in the domestic market, which apparently necessitated the impugned communication to maintain stability in the domestic market of the country, is not squarely applicable in its letter and spirit in the present case, since, by the amendment, the petitioner did not seek to increase the quantity to be exported, but rather to decrease the same, which would enure to the benefit of the domestic interest as far as the problem of soaring prices is concerned. A reduction in the quantity of export would be rather beneficial to control the soaring prices, which was only done by the amendment and, as such, the spirit of the amendment of the Foreign Trade Policy, annexed at page - 30, was not violated by the aforementioned interpretation of the expression "commitment".

In such view of the matter, the communication dated December 9, 2019 is patently violative of the amendment of Para- 1.05(b) of Foreign Trade Policy 2015-2020 as annexed at page - 30 and, as such, is hereby struck down.

W. P. No. 23925(W) of 2019 is accordingly allowed, thereby striking down the impugned communication dated December 9, 2019 at page - 43 (Annexure- P6) of the instant writ petition insofar as the present petitioner is concerned. The petitioner shall be permitted to export the balance quantity of the onion to be exported in terms of the Letter of Credit dated July 15, 2019, as amended on October 13, 2019, and is due to expire on January 7, 2020.

There will be no order as to costs.

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.