ASIAN FOOD INDUSTRIES Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution challenges Notification No.19 (RE-2006)/2004-2009 dated 4/7/2006 whereby retrospective effect is given to Notification dated 27/6/2006 and Notification dated 3/7/2006 so as to be operative with effect from 22/6/2006. The following prayers are made :

(2.) The petitioner, a partnership firm, is engaged in the business of purchase and sale of various kinds of pulses and grains etc. The petitioner is also exporting the said goods to various overseas buyers under Open General Licence (OGL) after receiving confirmed orders. In the course of such business the petitioner-firm received orders from foreign importers from middle-east for export of 20,331 M.Ts. of various kinds of pulses and grains equivalent to 107 containers. The petitioner, therefore, entered into a contract with overseas importer which contains clauses for damages and penalty in the event of the failure of the petitioner to fulfill commitment made under the contract. It is the say of the petitioner that the petitioner has received 20% advance payment i.e. U.S.$ 2,94,942/- on 9.5.2006 towards the supply of various kinds of pulses and grains. The petitioner has already shipped 20 containers between 22/6/2006 and 24/6/2006 while 87 containers are to be shipped. The said 87 containers were to be loaded on vessel on 26/6/2006 but the loading could not take place due to non arrival of the vessel. It is further averred by the petitioner that 87 containers have already been cleared for export by competent Authorities and are lying at Kandla port. That the said 87 containers have been handed over to the Customs Authorities for which ?let export? orders have been made and the goods are in ready to export condition.

(3.) In exercise of powers conferred by section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (Foreign Trade Act), respondent No.2 issued Notification dated 27/6/2006 prohibiting export of various goods mentioned therein for a period of six months from the date of issuance of the said Notification. It is the say of the petitioner that vide entries pertaining to Lentils and Tur (Arhar) the other consignments which are ready to be shipped are covered apparently, but for the reasons urged the prohibition would not apply to the case of the petitioner. Vide Notification dated 3/7/2006 the period of ban under earlier Notification dated 27/6/2006 came to be extended up to 31/3/2007. However, vide another Notification dated 4/7/2006 (impugned Notification) the earlier Notification dated 27/6/2006 has been amended so as to give retrospective effect with effect from 22/6/2006 on the ground that the announcement regarding the decision of the Government to impose ban/prohibition of the items mentioned in the Notification had received wide publicity in the print and electronic media on 22/6/2006. Respondent No.4 therefore vide communication dated 11/7/2006 has conveyed the decision of Commissioner of Customs, Kandla and stated that only export consignments which were handed over to Customs up to 22/2/2006 would be allowed and in relation to export consignments which were handed over to Customs for examination etc. between 22/6/2006 and 27/6/2006 exports would not be allowed, Shipping Bills need to be cancelled and goods, if arrived, need to be taken back.