COURT OF ANDHRA PRADESH :: AMARAVATI…
Impugned judgment/order of 29.11.2023 set aside; matter remanded to learned single Judge to decide afresh along with batch of petitions listed 16.02.2024; no costs.
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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
THURSDAY, THE FIFTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR
PRESENT
HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE AND
HON’BLE MR. JUSTICE R. RAGHUNANDAN RAO
WRIT APPEAL NO: 147 OF 2024
Writ Appeal under clause 15 of the Letters Patent preferredtheorder in WP.No. 25933 of 2023, dated 29-09-2023 by allowing the present writ appeal and pass on the file of the High Court.
Between:
AND
lA NO: 3 OF 2024
Petition under Section 151 CPC praying that in thecircumstancesstated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the order dt. 29.11.2023 in lA.No. 2 of 2023 in WP.No. 25933 of 2023. lA NO: 4 OF 2024
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to receive the documents marked as RI-1 to RI-6 viz, 1) Notification No.30/2023, dated 30.08.2023 (RI-1), issued by 1st respondent; 2) Notification No.32/2023 dated 25.09.2023 (RI-2) issued by 1st respondent; 3) Notification No.37/2023, dated 18.10.2023 (Rl- 3) issued by 1st respondent; 4) Notification No.48/2023, dated 07.12.2023 (RI-4) issued by 1st respondent; 5) E-procurement contract Note
/ /
24/31, dated 24.01.2024 (RI-5); and 6) E-procurementcontract Note ^P-?023-24/32, dated 24.01.2024 (RI-6), as additional material papers in /V.A.Nb.147 of 2024, further be pleased to consider the same at the time of hearing the said Writ Appeal and lAs therein.
Counsel for the Appellants : SRI Y. N. VIVEKANANDA
Counsel for the Respondent No.1 : SRI S. SRINIVASA REDDY FOR SRI A. MUNEENDHAR REDDY Counsel for the Respondent Nos.2 & 3 : SRI Y.V. ANIL KUMAR,
CENTRAL GOVT. COUNSEL
The Court made the following: ORDER
m THE HIGH COURT OF AHDHRA PRADESH: AMARAVATI HON’BLE MR.JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
&
HON’BLE MR. JUSTICE R. RAGHUNANDAN RAO
WRIT APPEAL No. 147 of 2084
The Commissioner of Customs, Customs (Preventive) Gommisionerate, 55-17-3, C-14, 2nd Floor, Industrial Estate, Autonagar, Vijayawada - 520 007 &? another.
... Appellants
Versus
M/s 0mm Agroexim Pvt Ltd, A Company incorporated under the provisions of the Companies Act, 2013, having its Registered Office at D.No.37-214, Plat B, Vyayasindhu Residency Market Street, Kakinada, East Godavari, Andhra Pradesh 533001, rep. hy 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.l.
Mr. Y. V. Anil Kumar, Central Government counsel, for respondent Nos.2 &■3.
DATE : 15.02.2024
PER DHIRAJ SINGH THAKUR, GJ (Oral):
The present Letters Patent Appeal has been preferred against the judgment and order, dated 29.11.2023, passed inI.A.No.2of 2023 in/and W.P. No.25933 of 2023.
HCJ a RRR, J W.A.No.147of 2024
2
Briefly stated, the material facts are as under:
The petitioner claims to be a company incorporatedunderthe Companies Act with the objective of carrying out thebusinessof 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-basmatiIndian white rice. The contracts are stated to have been enteredintoon 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 forsupplyof5000 MTs of non-basmati Indian white rice. It is statedthatthesupphes as per the contracts entered into between the petitioner andthe foreign buyers were to be made by the petitioner before31.10.2023, 30.11.2023 and 31.01.2024 respectively, failing whichtheforeign 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 ofIndia,Ministry of Commerce and Industry, in exercise of the powersconferred under Section 3 r/w 5 of the Foreign Trade (Developmentand Regulation) Act, 1992, r/w paragraphs 1.02 and 2.01of theForeign Trade Policy, 2023, banning and prohibiting the export of nonbasmati white rice (semi-milled or wholly milled rice,whetheror
HCJ 6 RRR, J 3 W.A.No.147of 2024
not polished or glazed:Other) under HS Code 1006 3090,with
immediate effect.
The notification supra, however, envisaged that consignments of non-basmati rice would be aUowed to be exportedunderthe foUowing conditions:
“ i) where loading of Non-basmati rice on the shiphas commenced before this Notification;
ii) where the shipping bill is filed and vessels have already berthed or arrived and anchored in Indian portsand their rotation mmiber has been allocated before this Notification; The approval of loading in such vesselswlUbe issued only after confirmation by the concerned PortAuthorities regarding anchoring/berthing of the ship for loadingofNon- 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 hasentered the Customs Station for exportation before this Notificationand is registered in the electronic systems of the concerned Custodian of the Customs Station with verifiable evidenceof date and time stamping of these commodities having enteredthe Customs Station prior to 20.07.2023. The period of export shall beupto 31.08.2023. iv) Export will be allowed on the basis of permission granted by the Government of India to other co\mtriestomeet 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
HCJ & RRR, J W.A.No.147of 2024
4
mdependent of each other and that export would be permittedtobe completed, if any of the conditions were satisfiedbytheexporter.
By virtue of an interim order, dated 19.10.2023, the respondents were directed to pernnt the petitionertoexportthe said rice stored before 20.07.2023 at warehouse uponpaying the requisite export duty in accordance with law.
MCJa RRR, J W.A.r!o.147of 2024
5
respondents to permit the petitioner to export 18,900MTsofrice under HS Code 1006 30 90 which quantity was coveredunderthree contracts all of which were entered into between Uie petitioner and the foreign buyers before issuance of the impugned notification, dated 20.07.2023.
- The learned single Judge, while allowing I.A.No.2 of2023 observed that the restrictions operated retrospectively and impeded the traders from honouring their obligationswhichwere 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, passedinLA.No.l of 2023 and permitted the petitioner to export 18,900MTsofthe said rice in terms of the concluded contracts.
At that stage, a statement was made by learned counselfor the petitioner that in view of the relief having been granted to the petitioner by way of modification of the earlier order,hedidnot 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.
- Learned counsel for the appellant urged that the learned single Judge could not have granted the relief to the writ petitioner
HCJ 6 RRR, J * W.A.No.147of 2024
6
I i
- Learned counsel for the petitioner - respondent No.lherein however, submitted that it was during the course of arguments before the learned single Judge that a statement wasmadethatthe petitioner could be permitted to export the rice in case the vahdity of the impugned notification was kept intact and it is in those circumstances that the judgment and order impugnedhadcometo be passed.
- 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 ricewhichwas otherwise a subject matter of contract between the petitioner and
HCJ a RRR, J W.A.No.147of 2024
7
the foreign buyers, which, in our opinion, runs contrary to the notification, which was impugned in the writ petition,onwhicha view had to be expressed and the notification impugnedhadtobe either upheld or set aside, which did not happen inthepresentcase, m view of the fact that after obtaining the interim rehef, the petitioner very conveniently sought to withdraw thechallengeto 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 learnedsingle Judge for consideration afresh along with the batchofpetitions which are stated to be fisted tomorrow i.e., on 16.02.2024,before the concerned Bench as per the roster. Registry topostthematter accordingly. The Writ Appeal is, accordingly, disposedof.Noorder as to costs.
Pending miscellaneous applications, if any, shall standclosed.
Sd/- M. RAMESH BABU DEPU GISTRAR //TRUE COPY// V
SECTUDN OFFICER
/
SK
y
HIGH COURT
tt
‘ DATED:15/02/2024
ORDER
WA.No.147 of 2024
DISPOSING OF THE WRIT APPEAL WITHOUT COSTS
S>rJ
1 issue framed by the court
Could the learned single Judge permit export of rice covered by pre-notification contracts without upholding or setting aside the impugned export-ban notification?
2 provisions across 2 enactments
The Commissioner of Customs, Customs (Preventive) Commissionerate, Vijayawada
The Additional Commissioner of Customs, Custom House, Kakinada
M/s 0mm Agroexim Pvt Ltd
Union of India
The Director General of Foreign Trade
Dhiraj Singh Thakur
R. Raghunandan Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
