Soubhik Exports Ltd. vs Union of India (UOI)

Aniruddha Base, J.—The Court: In this writ petition, the Petitioners pray for a direction to permit the Customs authorities to allow certain consignment of rice to be exported to Bangladesh. The variety of rice sought to be exported is described as non-Basmati rice and the Petitioners claim to have lodged the bills of export with the invoice-cum-packing list of such consignments on various dates in the month of January 2008.

Export of non-Basmati rice, however, was prohibited under a notification dated October 15, 2007. Thereafter, however, certain relaxation was made permitting such export in the event the minimum export price was more than US $ 425 per ton FOB, which is equivalent to Rs. 17000/- per ton. This notification was issued on December 12, 2007. Thereafter, there has been subsequent Notifications effecting variation in the minimum export price, which has been enhanced from time to time.

The Petitioners, in the present writ petition rely on a notification issued on April 1, 2008, in which such ban has been relaxed in cases of rice consignments certified by the Customs authorities which had been accepted for export till March 6, 2008 (mid-night) in land customs station in West Bengal. The relevant clause in this regard is set out herein under:

2.2 Ban on both non-Basmati and Basmati rice will not be applicable to exports as under:

2.2.1 Under Bilateral Trade Agreement between Government of India-and Government of Maldives (as approved vide Notification No. 42 dated 23-10-2007).

2.2.2 Consignments of rice certified by Customs Authority which have been accepted for export till 6-3-2008 (mid-night) in Land Customs Stations (LCS) in West Bengal as part of transitional arrangements (as approved vide Notification No. 87 dated 24-3-2008).

2.3 Above quantified relaxations would be applicable from the date of respective Notifications as mentioned against each entry.

The case of the Petitioners is that they have lodged the export, documents and on the strength of the same they must be allowed to export rice in terms of the notification dated April 1, 2008, a copy of which has been made annexure P-14 to the writ petition.

Mr. Mukherjee, learned Senior Advocate appearing for the Petitioners, has argued that lodging of such export documents and packing list satisfy the requirement of above-referred Clause 2.2.2 and hence the Petitioners should be allowed to export such rice in terms of the said notification. His additional submission is that the goods in question had reached the concerned location where the land customs station is situated. But because the customs authorities do not have storing or parking space, they had to be kept in their own godowns near to the land customs station.

Ms. Qureishi, learned Counsel for the Respondents, on the other hand submits that to get the benefit of the impugned notification, the goods must actually be certified to have been received before March 6, 2008 by the customs authorities and mere lodging of the documents would not be sufficient.

Having heard the learned advocates appearing for the parties, prima facie I am not satisfied that the Petitioners are entitled to the benefit of the notification of April 1, 2008. A plain reading of Clause 2.2.2 suggests that the rice intended to be exported, must have been certified by the customs authorities to have been accepted for export till March 6, 2008. This does not speak of mere lodging of export documents which are often sent before the goods arrive at the land customs station.

On behalf of the Petitioners, an order of the Hon''ble High Court of Andhra Pradesh at Hyderabad in W.P. No. 9686 of 2008 L.M.J. International Limited v. Union of India, passed on 29th April 2008 has been relied upon. This was an interim order permitting export of the same commodity, being non-basmati rice. Under consideration in this writ petition was the impact of a notification dated November 2, 2007, prohibiting export of non-Basmati rice which carried a similar relaxation clause, though not identical in terms, in respect of rice brought for export into the godowns of Kankinada city till October 10, 2007. Satisfaction of that condition was to be certified by the State Government of Andhra Pradesh, as it appears from the order of the Hon''ble Court, a copy of which was cited by the learned Counsel for the Petitioner. In that case, the District Collector of the concerned district certified on November 30, 2007 that the writ Petitioners had brought the rice in question to Kankinada city before October 10, 2007 and kept in different godowns in that city for export to Bangladesh/African countries. In this notification, the condition precedent for applying the relaxation clause was that the certificate should have been issued to the effect that the rice was brought into the godowns of Kankinada city till October 10, 2007. In the light of the certificate issued by the District Collector, an interim order was passed permitting the Petitioners to export the rice in question upon the Petitioners giving an undertaking to the Director General of Foreign Trade that the Petitioners shall, compensate at a later point of time. However, there is substantial difference-between the respective clauses in the two notifications. The one on the strength of which the Petitioners are seeking interim order in the present writ petition, specifically stipulates that the consignment of rice must have been accepted for export till March 6, 2007 in the land customs station in West Bengal.

Under the circumstances, I do not think that the interim order passed by the Hon''ble High Court of Andhra Pradesh assists the Petitioners in the present case. What the Petitioners are seeking in the instant writ petition, in my opinion, goes contrary to the specific stipulation of the notification. Accordingly, the prayer for interim order is rejected.

Let affidavit in opposition be filed within three weeks. Reply may be filed within two weeks thereafter. The matter will appear six weeks hence.

Parties shall act on photostat signed copy of this order on the usual undertakings.