as.wpst.96678.20.doc

Ajay

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION (ST) NO.96678 OF 2020

Rika Global Impex Limited ..Petitioner

Versus

Union of India and Ors. ..Respondents

...................

Mr. Vineet Naik, Senior Advocate a/w Mr. Sukand Kulkarni,

Mr. S.S. Bobde, Mr. Jas Sanghavi and Mr. Durga Prasad

Pogary i/by M/s. PDS Legal, Advocates for the Petitioner.

Mr. Pradeep S. Jetly, Senior Advocate a/w. Mr. J.B. Mishra,

Advocates for Respondent Nos.1 to 3.

Mr. Rui Rodrigues a/w. Mr. N.R. Prajapati, Advocates for

Respondent Nos.4 to 6.

...................

CORAM : UJJAL BHUYAN &

MILIND N. JADHAV, JJ.

RESERVED ON : MARCH 12, 2021.

PRONOUNCED ON : APRIL 8, 2021.

JUDGMENT : (PER : MILIND N. JADHAV, J.)

Heard Mr. Vineet Naik, learned senior advocate for

the petitioner; Mr. Pradeep S. Jetly, learned senior advocate

for respondent Nos.1 to 3; and Mr. Rui Rodrigues, learned

advocate for respondent Nos.4 to 6.

2. By the present petition, petitioner has prayed for a

writ of mandamus to respondent No.2 i.e. the Commissioner

of Customs (NS-I) and respondent No.3 i.e. the Assistant

Commissioner of Customs, Appraising Group - I & IA to allow

clearance of 2,650 MTs of Pigeon Peas covered under Bill of

Entry Nos. (i) 9029721 dated 02.10.2020, (ii) 9028987 dated

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02.10.2020, (iii) 9028862 dated 02.10.2020, (iv) 8845847

dated 17.09.2020, (v) 8843086 dated 17.09.2020, (vi)

8842485 dated 17.09.2020, (vii) 8985829 dated 29.09.2020,

(viii) 8987173 dated 29.09.2020, (ix) 8982222 dated

28.09.2020, (x) 8994149 dated 29.09.2020, (xi) 9008104

dated 02.10.2020, (xii) 9029328 dated 02.10.2020, and (xiii)

9029262 dated 02.10.2020 for home consumption

(hereinafter referred to as "the bills of entry") which have

been held up inspite of having valid registration of Advance

Payment Certifcate bearing File No.03/27/008/ 00161/AM18

dated 06.09.2017 and issued on 27.09.2017 by the ofce of

the respondent No.5 i.e. the Director General of Foreign Trade

(hereinafter referred to as "the DGFT") permitting import of

Pigeon Peas under the Foreign Trade Policy 2015-2020

(hereinafter referred to as "the FTP").

3. Before we advert to the submissions made by

learned counsel for the respective parties, it will be apposite

to briefy refer to the relevant facts as pleaded for

adjudication of the lis.

3.1. Petitioner is a company incorporated under the

Companies Act, 2013 and engaged in the business of import

and export of agricultural commodities. Petitioner is a

regular importer and exporter of agricultural produce

including Pigeon Peas (Toor) from Sudan, Myanmar, Tanzania

and Mozambique. Petitioner has been allotted import / export

code and accorded status of 'Star Trading House' by

respondent No.5 i.e. the DGFT.

3.2. In the ordinary course of business petitioner had

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entered into contract dated 26.05.2017 with Agricom

International General Trading LLC (hereinafter referred to as

the "foreign supplier") for purchase of Pigeon Peas; the

contract was mutually amended from time to time vide 8

addendums whereby some terms of the contract were

amended and shipment period was extended. Petitioner

notifed the addendums to the ofce of respondent No.6 i.e.

the Additional Director General of Foreign Trade, Mumbai.

Petitioner's contract for import of Pigeon Peas is under the

provisions of the FTP, validity of which now stands extended

till 31.03.2021.

3.3. By notifcation No.19/2015-20 dated 05.08.2017,

DGFT amended the import policy of certain items under

Chapter 7 of the ITC (HS) 2017, whereby, import of Pigeon

Peas was regulated / revised from 'free' to 'restricted'

category stating that import shall be subject to an annual

fscal quota of 2 lakh MT. By trade notice No.13/2015-20

dated 11.08.2017 it was clarifed that though 2 lakh MT was

already imported during the said current fscal year, import of

Pigeon Peas in respect of which irrevocable letters of credit

were opened prior to 05.08.2017 and subsequently registered

with the jurisdictional Regional Authority as per provisions of

the FTP was permitted. By another trade notice No.15/2015-

20 dated 31.08.2017, DGFT provided further relaxation

allowing registration of contracts for import of Pigeon Peas

wherein advance payment had been made (full or in part)

prior to 05.08.2017 and for which a contract / purchase

invoice and payment details certifed by the concerned bank

were available.

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3.4. Petitioner being covered by the conditions stated

in the trade notice dated 31.08.2017 applied for registration

of contract and was accordingly issued an Advance Payment

Certifcate vide File No.03/27/008/00161/AM18 dated

06.09.2017 i.e. registration certifcate (hereinafter referred to

as "the RC") by the DGFT on the basis of advance payment

made to its supplier. Initially the RC granted to the petitioner

was for import of Pigeon Peas from Sudan; however

subsequently by amendment sheet No.01 dated 02.11.2017,

petitioner was permitted to import Pigeon Peas from Malawi,

Myanmar, Mozambique and Tanzania.

3.5. DGFT issued 5 RCs to the petitioner against the

trade notice dated 31.08.2017. Petitioner imported Pigeon

Peas against 4 RCs to the extent of 11000 MTs by 2018.

Import against the 5

th

RC in respect of balance 11000 MTs

was to be completed between 2018 to 2020.

3.6. In view petitioner's contractual obligations

shipment was to reach India between February and March

2020 but due to Covid - 19 pandemic and the resultant

lockdown enforced by many countries there was delay and

the shipment of Pigeon Peas arrived in the month of

September 2020. Initially petitioner fled 3 bills of entry

bearing Nos. (i) 8845847 dated 17.09.2020, (ii) 8843086

dated 17.09.2020 and (iii) 8842485 dated 17.09.2020 seeking

clearance of Pigeon Peas for home consumption.

3.7. Petitioner's shipment was not cleared for home

consumption by respondent Nos.2 & 3 as a result of which

petitioner incurred demurrage / detention charges due to

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delay in clearance. Petitioner therefore addressed letter

dated 22.09.2020 to the DGFT seeking clarifcation as to

whether the RC dated 06.09.2017 issued to the petitioner was

valid for import of Pigeon Peas in the year 2020 and also

approached respondent No.3 who informed the petitioner that

respondent No.3 had sought clarifcation from the DGFT with

respect to validity of its RC dated 06.09.2017. During

pendency of this action, additional quantity of Pigeon Peas

imported by the petitioner arrived at Nhava Sheva port in

Mumbai for which petitioner fled additional 10 bills of entry

bearing Nos.(i) 9029721 dated 02.10.2020, (ii) 9028987 dated

02.10.2020, (iii) 9028862 dated 02.10.2020, (iv) 8985829

dated 29.09.2020, (v) 8987173 dated 29.09.2020, (vi)

8982222 dated 28.09.2020, (vii) 8994149 dated 29.09.2020,

(viii) 9008404 dated 02.10.2020, (ix) 9029328 dated

02.10.2020 and (x) 9029262 dated 02.10.2020 seeking

clearance for home consumption.

3.8. The total quantity of Pigeon Peas under the

aforesaid 13 bills of entry is 2650 MT clearance of which is

the subject matter of the present writ petition. Petitioner has

pleaded that the balance 8350 MT of Pigeon Peas is also

ready to be shipped by its foreign supplier, but due to

detention of the present consignment, petitioner has

requested its foreign supplier to keep the shipment on hold

for the present.

3.9. Since petitioner's goods are perishable in nature,

by letter dated 29.09.2020 addressed to the Deputy

Commissioner of Customs, petitioner sought permission for

storage of the goods in bonded warehouse under Section 49

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of the Customs Act, 1962 to avoid detention and ground rent

charges.

3.10. Thereafter petitioner entered into

correspondence with the respondents seeking clarifcation on

the validity of its RC but received no reply. By letter dated

10.11.2020 petitioner requested Deputy Commissioner of

Customs (Import) to permit the petitioner to convert the bills

of entry from home consumption to warehousing so as to

enable the petitioner to transfer the goods to the actual

warehouse who was the license holder in order to stop further

losses being sufered by the petitioner due to non-clearance

of the goods and due to its perishable nature. Petitioner also

addressed online complaint on 12.11.2020 to the Grievance

Redressal Committee of the FTP.

3.11. By letter dated 12.11.2020 respondent No.3

i.e. Assistant Commissioner of Customs, Appraising Group - I

& IA rejected the petitioner's request for conversion of the 13

bills of entry from home consumption to warehousing.

3.12. Being aggrieved by the non-clearance of the

shipment of approximately 2650 MT of Pigeon Peas imported

vide RC dated 06.09.2017 under the 13 bills of entry,

petitioner has approached this Court by the present petition

seeking the relief(s) as indicated above.

4. Mr. Vineet Naik, learned senior counsel appearing

on behalf of the petitioner, at the outset has informed that

the tenure of the FTP 2015-2020 now stands extended till

31.03.2021 vide notifcation dated 31.03.2020. He submitted

that import against 4 RCs was completed by the petitioner in

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2018, whereas import against the 5

th

RC was to be completed

between 2018 to 2020; import was thus continuous from the

date of issuance of the RCs to the petitioner; RC dated

06.09.2017 issued to the petitioner was without specifying

any validity period or date of shipment but categorically

stated that the RC would remain valid till the entire quantity

is imported; petitioner extended the contract mutually with

its foreign supplier from time to time, intimation of which was

given to the DGFT at all times; petitioner's RC was fully

covered by the Notifcation dated 05.08.2017 and the

clarifcatory trade notices dated 11.08.2017 and 31.08.2017

issued under the FTP; there was no embargo on the petitioner

to import the goods only during the fscal year 2017-18 as

contended by respondents and the import of the entire

quantity of goods could be made during the tenure of the

FTP. He submitted that since petitioner's contract was

entered into prior to 05.08.2017, RC issued to the petitioner

did not mention any expiry date; as such the validity of the

RC is till the FTP is in force or till completion of import,

whichever is earlier; hence petitioner is entitled to clearance

of the imported goods under the RC and non-clearance of the

goods is illegal and contrary to the provisions of the FTP.

5. PER CONTRA Mr. Rui Rodrigues, learned counsel

appearing on behalf of respondent Nos.4 to 6 has defended

the action of non-clearance of the goods and in this

connection has drawn our attention to the afdavit-in-reply

dated 05.01.2021 and additional afdavits dated 21.01.2021

and 02.03.2021 fled by the DGFT and contended that

validity of the RC issued to the petitioner was only for the

fscal year 2017-18 and date of expiry of the RC is the date of

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expiry of the notifcation; petitioner's claim that its contract

and addendums be treated as a single document did not fnd

any import in view of the relaxation provided by trade notice

dated 31.08.2017 in respect of paragraph 1.05 of the FTP;

trade notice being issued in order to address the genuine

hardship faced by importers / exporters; no relaxation criteria

for extension of contract was prescribed in the trade notice;

thus in the absence of any explicit relaxation or extension,

validity of the petitioner's shipment in 2020 as per

petitioner's contract is to be considered as on the date of

registration of the contract and it cannot be extended

indefnitely by various addendums allegedly addressed to the

ofce of the Additional Director General of Foreign Trade ; the

said ofce did not accept / receive the alleged addendums as

no computerised acknowledgment was issued to the

petitioner; notifcation dated 05.08.2017 was specifcally

issued to restrict import of Pigeon Peas in order to protect the

domestic farmers from unbridled imports; this notifcation

imposed restriction on the import of annual quota;

notifcation dated 31.08.2017 was issued only to protect the

importers who had already entered into contracts with

advance payment prior to 05.08.2017 and relaxation was

provided beyond the quota but the same was to be

completed during the fscal year 2017-18 and could not be

extended indefnitely by entering into addendums; thus in the

absence of any validity endorsed on the RC issued to the

petitioner, the quantity, value and shipment period in the

contract as on the date of registration has to be treated as a

limiting factor; contention of the petitioner that the FTP

permitted import under the RC for the entire duration of FTP

is erroneous as trade notice dated 31.08.2017 allowed for

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registration of contracts as per the terms of the contract as

on the date of its registration with the balance value, quantity

and shipment period available in the contract as the limiting

factor; the relaxation provided was only to alleviate the

immediate sufering of the importers and could not be mis-

utilized by extending the relaxation beyond the fscal year

2017-18; petitioner while applying for amendment in the RC

for adding country of origin did not mention that its contract

was extended till 28.09.2020; the RC issued to the petitioner

cannot be treated as open ended and it has to be linked with

the notifcation and year of issuance i.e. 2017-18 only.

5.1. He referred to the additional afdavit dated

02.03.2021 and contended that petitioner was initially issued

2 RC's of 11000 MTs each on the basis of its contract;

petitioner's application dated 05.09.2017 was considered by

respondent No.6 in view of the contract entered into by the

petitioner against advance payment made by the petitioner

to its foreign supplier and consolidated RC bearing File

No.03/27/008/ 00161/AM-18 dated 06.09.2017 permitting

import of 26250 MT's of Pigeon Peas under 5 diferent

contracts for which 5 advance payments were made was

issued; however on the request of the petitioner 5 separate

RC's in respect of 5 diferent contracts having separate

registration numbers were issued to the petitioner; reading of

trade notices dated 11.08.2017 and 31.08.2017 leave no

doubt in mind that the applicability of any relaxation granted

to the petitioner by way of amendment in the RC by

respondent No.6 pertained only to the quota prescribed for

the fnancial year 2017-18 and could never have been

extended beyond the said fscal year; contracts submitted by

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the petitioner clearly indicated that its shipments were due

on 20 July / 20 September 2017; or August / 15 September

2017 or August / September 2017; and August / September /

October 2017; in so far addendum No.1 to the contract dated

26.05.2017 is concerned though the shipment period was

extended by 45 days, the extended period was however still

within the fscal year 2017-18 and was therefore permissible;

hence the subsequent addendums submitted by the

petitioner after issuance of the RC were invalid.

5.2. He submitted that Petitioner's reliance on

notifcation No.04/2015-2020 dated 25.04.2018 on the basis

of which fresh RC dated 04.05.2018 for import of Yellow Peas

for 200 MT was issued cannot be applied to the present case

as it was in respect of the quota pertaining to the fscal year

2018-19 and released with restriction for the period until

30.09.2018 as subsequently indicated in notifcation

No.15/2015-2020 dated 02.07.2018; absence of validity

explicitly on the RC dated 06.09.2017 issued to the petitioner

did not entitle the petitioner to claim extension / relaxation

beyond the fscal year 2017-18 as it runs contrary to the spirit

of the notifcation dated 05.08.2017 read with the two trade

notices dated 11.08.2017 and 31.08.2017; reliance was

placed on the clarifcation issued by the Deputy Director of

General of Foreign Trade vide letter dated 24.12.2020 to the

Commissioner of Customs, Nhava Sheva, inter alia, clarifying

that in the case of the petitioner, validity of the RC was only

for the fscal year 2017-18 as the provision for registering RCs

was made with reference to notifcation No.19/2015-2020

dated 05.08.2017 and the date of expiry is the date of lapse

of notifcation i.e. 31.03.2018. He therefore prayed for

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dismissal of the petition on the basis of the above

submissions.

6. Mr. Pradeep Jetly, learned senior counsel

appearing on behalf of respondent Nos.1 to 3 in his reply, at

the outset adopted the submissions made on behalf of

respondent Nos.4 to 6 and has drawn our attention to the

afdavit-in-reply dated 17.12.2020 fled by the Deputy

Commissioner of Customs to contend that since the RC dated

06.09.2017 does not bear any validity or expiry clause, the

matter was referred to the DGFT; extension of the original

contract was never intimated by petitioner and the contract

was never revalidated; therefore the petitioner is not entitled

to the reliefs claimed in the petition.

7. Mr. Vineet Naik, learned senior counsel for the

petitioner in his rejoinder submission has drawn our attention

to the rejoinder afdavit and additional afdavits fled by the

petitioner dated 01.01.2021, 08.01.2021 and 10.02.2021 and

submitted that petitioner's contract was admittedly prior to

05.08.2017 and the contract along with addendum No.1

dated 07.08.2017 was registered; RC was issued for the

contract and addendums are to be treated as part of the

contract; the addendums were duly intimated to the DGFT

immediately on execution from time to time; while making

application for amendment regarding addition of country of

origin there was no necessity for the petitioner to seek

extension of term of shipment as it was within the tenure of

the FTP; the question of getting the addendums approved

cannot arise as they are to be treated as part of the contract.

7.1. He submitted that notifcation dated 05.08.2017

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nowhere states that it is valid only till 31.03.2018; notifcation

dated 11.08.2017 made it clear that while issuing notifcation

dated 05.08.2017 the annual quota of 2 lakh MT for the fscal

year was already imported, thus the contention that import

was to be completed within the fscal year is without merit;

validity of RC is co-terminus with the validity of contract

during the tenure of the FTP; contract of petitioner was not

based on letters of credit but on advance payment and hence

reliance placed on para 1.05 of the FTP requiring the

petitioner to register with the jurisdictional R.A. was not

applicable to the petitioner's case.

7.2. He submitted that on 29.10.2020 Deputy Director

of General of Foreign Trade, Zonal Additional DGFT Mumbai

addressed an email to the Deputy Director General (PC-2)

DGFT endorsing a copy to the Mumbai DGFT and Joint DGFT,

inter alia, clarifying that the application of the petitioner was

made under trade notice dated 31.08.2017 against advance

payment to supplier and the shipping date as per proforma

contract / addendums is 31.03.2021; RC is a document issued

by the Ministry of Commerce and Industry, Government of

India and nowhere mentions the validity or expiry date save

and except the quantity to be imported; hence unless the

entire quantity is imported, the RC remains valid during the

tenure of the FTP; the DGFT cannot add something into the

RC to contend that the RC is valid only for the frst fscal year

of the FTP.

8. Submissions made by the parties have received

the due consideration of the Court. Materials on record have

been perused.

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9. Before we advert to the submissions made by the

respective counsel, it would be apposite to consider the

relevant provisions of the Foreign Trade Policy 2015-2020 as

applicable in the present case.

9.1. Chapter 1 of the Foreign Trade Policy (2015-2020)

deals with the legal framework and trade facilitation. The

relevant provisions are extracted as under:-

1.00 Legal Basis of Foreign Trade Policy (FTP)

The Foreign Trade Policy, 2015-20, (as updated)

w.e.f. 05.12.2017 is notifed by Central Government,

in exercise of powers conferred under Section 5 of

the Foreign Trade (Development & Regulation) Act,

1992 (No. 22 of 1992) [FT (D&R) Act], as amended.

1.01 Duration of FTP

The Foreign Trade Policy (FTP), 2015-2020, (as

updated) w.e.f. 05.12.2017 incorporating provisions

relating to export and import of goods and services,

shall come into force with efect from the date of

notifcation and shall remain in force upto 31st

March, 2020, unless otherwise specifed. All exports

and imports made up to the date of notifcation shall,

accordingly, be governed by the relevant FTP, unless

otherwise specifed.

1.02 Amendment to FTP

Central Government, in exercise of powers conferred

by Section 5 of FT (D&R) Act, 1992, as amended from

time to time, reserves the right to make any

amendment to the FTP, by means of notifcation, in

public interest.

1.03 Hand Book of Procedures (HBP) and

Appendices & Aayat Niryat Forms (AANF)

Director General of Foreign Trade (DGFT) may, by

means of a Public Notice, notify Hand Book of

Procedures, including Appendices and Aayat Niryat

Forms or amendment thereto, if any, laying down the

procedure to be followed by an exporter or importer

or by any Licensing / Regional Authority or by any

other authority for purposes of implementing

provisions of FT (D&R) Act, the Rules and the Order

made there under and provisions of FTP.

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1.04 Specifc provision to prevail over the

general

Where a specifc provision is spelt out in the

FTP/Hand Book of Procedures (HBP), the same shall

prevail over the general provision.

1.05 Transitional Arrangements

(a) Any License / Authorisation / Certifcate /

Scrip / instrument bestowing fnancial or fscal beneft

issued before commencement of FTP, 2015-20 (as

updated) w.e.f. 05.12.2017 shall continue to be valid

for the purpose and duration for which it was issued,

such License / Authorisation / Certifcate / Scrip / any

instrument bestowing fnancial or fscal beneft

Authorisation was issued, unless otherwise

stipulated.

(b) Item wise Import / Export Policy is

delineated in the ITC (HS) Schedule I and Schedule II

respectively. The importability /exportability of a

particular item is governed by the policy as on the

date of import / export. The date of import / export is

defned in para 2.17 of HBP, 2015-20. Bill of Lading

and Shipping Bill are the key documents for deciding

the date of import and export respectively. In case

of change of policy from 'free' to 'restricted /

prohibited / state trading' or 'otherwise regulated',

the import /export already made before the date of

such regulation / restriction will not be afected.

However the import through High Sea sales will not

be covered under this facility. Further, the import /

export on or after the date of such regulation /

restriction will be allowed for 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 operational listing such ICLC, the

applicant shall have to register the ICLC with

jurisdictional RA against computerized receipt within

15 days of imposition of any such restriction /

regulation. Whenever, Government brings out a

policy change of a particular item, the change will be

applicable prospectively (from the date of

Notifcation) unless otherwise provided for.

9.2. From the above it can be seen that paragraph

No.1.01 of chapter 1 of the FTP states that the FTP shall come

into force with efect from the date of notifcation and shall

remain in force upto 31.03.2020, unless otherwise specifed

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as stated; the said policy now stands extended upto

31.03.2021. Paragraph No.1.05 relates to transitional

arrangements and clause (b) thereof states that in case of

change of policy from 'free' to restricted / prohibited / state

trading or otherwise regulated, the import / export already

made before the date of such regulation / restriction will not

be afected. It further states that any import / export on or

after the date of such regulation / restriction will be allowed

for the importer / exporter if he has a commitment through

Irrevocable Commercial Letter of Credit (ICLC) before the

date of imposition of such restriction / regulation. Clause (b)

however does not apply to the case of an importer / exporter

whose commitment is through advance payment which needs

to be noted in the present case.

9.3. Notifcation No.18/2015-20 dated 05.08.2017

issued by the DGFT pertaining to amendment in the import

policy of Pigeon Peas is relevant to the present case and is

extracted as under :-

Government of India

Ministry of Commerce and Industry

Department of Commerce

Directorate General of Foreign Trade

Notifcation No. 19/2015-2020

New Delhi, Dated : 05 August, 2017

Subject : Amendment in import policy of

Pigeon Peas (Cajanus Cajan) / Toor Dal under

Chapter 7 of the ITC (HS) 2017, Schedule-I

(Import Policy).

S.O. (E) : In exercise of powers conferred by Section

3 of FT (D&R) Act, 1992 read with paragraph 1.02

and 2.01 of the Foreign Trade Policy, 2015-2020 as

amended from time to time, the Central Government

hereby amends the import policy of items of Chapter

7 of the ITC(HS)2017. Schedule-I (Import Policy) as

under:

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Exim Code Item

Description

Existing

Policy

Existing

Policy

Condition

Revised

Import

Policy

Revised

Policy

Condition

0713 60 66 Pigeon Peas

(Cajanus

Cajan) Toor

Dal

Free - RestrictedSubject to

Policy

Condition 2

of this

Chapter

0713 90 Other :

0713 90 10 Split Free - Free except

Pigeon Peas

(Cajanus

Cajan) /

Toor Dal

which is

restricted

Import of

Pigeon Peas

is subject to

Policy

Condition 2

of this

Chapter

0713 90 90 Other Free - Free except

Pigeon Peas

(Cajanus

Cajan) /

Toor Dal

which is

restricted

Import of

Pigeon Peas

is subject to

Policy

Condition 2

of this

Chapter

Policy Condition 2: Import shall be subject to an

annual (fscal year) quota of 2 lakh MT as per

procedure to be notifed. This restriction will not

apply to Government's import commitments under

any bilateral / regional Agreement / MOU.

2. Efect of this Notifcation: Import Policy of

Pigeon Peas (Cajanus Cajan) / Toor Dal under EXIM

Codes 0713 60 00, 0713 90 10 and 0713 90 90 is

revised from 'free to 'restricted'.

sd/-

(Alok Vardhan Chaturvedi)

Director General of Foreign Trade

E-mail : dfgt@nic.in

[Issued from File No. M-5012/300/2002-PC 2(A)]

9.4. By the above notifcation amendment in the

import policy of Pigeon Peas under chapter 7 of the Indian

Trade Classifcation (HS) 2017 for the FTP is made specifcally

in respect of import of Pigeon Peas whereby the import is

changed from free to restricted category. A further condition

is incorporated stating that import shall be subject to an

annual (fscal year) quota of 2 lakh MT as per the procedure

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to be notifed. Condition No.2 states that import shall be

subject to an annual quota of 2 lakh MT. From this it can be

safely inferred that the import under the FTP is for the

duration of the FTP and not for the fscal year 2017-2018.

9.5. Similarly trade notices No.13/2015-2020 dated

11.08.2017 and No.15/2015-2020 dated 31.08.2017 issued by

the DGFT are also directly relevant to the present case and

are extracted as under :-

Government of India

Ministry of Commerce and Industry

Department of Commerce

Directorate General of Foreign Trade

11th August, 2017

TRADE NOTICE NO. 13/(2015-2020)

To

1. ALL RA's of DGFT

2. All Customs Commissionerate

3. Members of Trade

Subject : Implementation of Notifcation No. 19 dated

5.8.2017-reg.

Reference is invited to Notifcation No. 19

dated 5.8.2017 amending the import policy of Pigeon

Peas ( Cajanus Cajan) / Toor Dal under Chapter 7 of

the ITC(HS) 2017. Vide the said notifcation, import

policy of Toor Dal has been modifed to " restricted',

subject to an annual (fscal year) quota of 2 lakh MT

as per procedure to be subsequently notifed.

2. However, as per the import data base, 2

lakh MT of Pigeon Peas/Toor Dal has already been

imported during the current fscal year. Therefore,

the requirement of issuing detailed procedure for

import of Toor Dal no longer exists and no

authorization in terms of para 2.08 of the Foreign

Trade Policy (2015-2020) will be issued. However,

import [as per para 2.17 and 9.11 ofthe Handbook of

the Procedure (2015-2020)] of Pigeon Peas/Toor Dal

for which irrevocable Letters of Credit have been

opened prior to 5th August, 2017 and subsequently

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registered with the jurisdictional RAs, as per

provisions of Para 1.05 of the Foreign Trade Policy

(2015-20), are permitted.

sd/-

(S.P. Roy)

Joint Director General of Foreign

Trade

E-mail : shyama.roy@nic.in

[Issued from File No. M-5012/300/2002-PC 2(A)]

Government of India

Ministry of Commerce and Industry

Department of Commerce

Directorate General of Foreign Trade

31st August, 2017

TRADE NOTICE NO.15/(2015-2020)

To

1. ALL RA's of DGFT

2. All Customs Commissionerate

3. Members of Trade

Subject : Implementation of Notifcation No. 19 dated

5.8.2017-reg.

Reference is invited to Notifcation No. 19

dated 5.8.2017 amending the import policy of Pigeon

Peas (Cajanus Cajan)/Toor Dal under Chapter 7 of the

ITC(HS) 2017 and Trade Notice No 13 date 11.8.2017

on the above subject.

2. Trade Notice No.13 dated 11.8.2017 has

provided for import [as per para 2.17 and 9.11 of the

Handbook of the Procedure (2015-2020)] of Pigeon

Peas/Toor Dal for which irrevocable Letters of Credit

have been opened prior to 5th August, 2017 and

subsequently registered with the jurisdictional F.As.

as per provisions of Para 1.05 of the Foreign Trade

Policy (2015-20).

3. Subsequently representations have been

received indicating that some frms have entered in

contracts prior to 5th August, 2017 for import of

Pigeon Peas/Toor Dal with either (i) advance payment

, (ii) some advance payment and rest amount

payable in Cash against Documents (CAD), or (iii)

100% CAD.

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4. The matter has been considered and the

Director General of Foreign Trade, in exercise of

powers under Para 2.58 of the Foreign Trade Policy

(2015-20), by relaxing the provisions of Para 1.05,

hereby allowed registration of such Contracts with

the Regional Authorities of DGFT for import of Pigeon

Peas (Cajanus Cajan) / Toor Dal, wherein advance

payment had been made (full or in part) prior to

5.8.2017 and for which contract / purchase invoice

and payment details certifed by the bank are

available.

5. Further, in relaxation of the provision of

time limit for registration of contracts, as in Para 1.05

of FTP, such contracts must be registered with the

Jurisdictional Regional Authorities headed only by the

Additional DGFTs, latest by 7th September, 2017

(5.00 p.m.). Applicants seeking relaxation in Para

1.05 of FTP (2015-20) may submit their application to

the jurisdictional RAs headed by Addl. DGFT, for

registration of their contracts wherein advance

payment had been made prior to 5.8.2017, by

making an online payment of Rs 2000/- as

application fee for seeking relaxation in

Policy/procedure as per Appendix 2K.

6. Accordingly, such contracts shall be

registered by the Zonal RAs i.e Chennai, Delhi,

Kolkata, Mumbai and RAs of Ahmedabad, Bangalore,

Hyderabad and Ludhiana as per their jurisdiction,

only after verifying that frms have entered into

contracts prior to the date of issuance of the

notifcation and where advance payments have been

made against a contract / purchase invoice and

where the payment obiective intent is clearly

mentioned in the payment transaction document by

the bank concerned as import of Pigeon Peas / Toor

Dal. The registration will be permitted only with the

approval of the Head of Ofce.

sd/-

(S.P. Roy)

Joint Director General of Foreign Trade

E-mail : shyama.roy@nic.in

[Issued from File No. M-5012/300/2002-PC 2(A)]"

9.6. By trade notice No.13/2015-2020 dated

11.08.2017 it was made mandatory for importers having an

Irrevocable Letter of Credit opened prior to 05.08.2017 to

register with the jurisdictional Regional Authority as per the

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provisions of paragraph 1.05 of the FTP for permitting their

import. This was because as 2 lakh MT of Pigeon Peas had

already been imported during the said fscal year (2017-

2018). In trade notice No.15/2015-2020 dated 31.08.2017 it

was stated that in the case of importers who had made

advance payment to its foreign supplier (full or in part) prior

to 05.08.2017 and for which contract / purchase invoice and

payment details certifed by the bank were available, such

importers were allowed to register with the jurisdictional

Regional Authority by 07.09.2017. Petitioner's case is

covered by this trade notice as can be seen.

10. In the backdrop of the above provisions the basic

facts pertaining to the petitioner's case need to be scrutinized

in order to appreciate applicability of the relevant provisions

of the FTP and notifcation dated 05.08.2017 read with the

two clarifcatory trade notices dated 11.08.2017 and

31.08.2017. Petitioner entered into the contract dated

26.05.2017 with its foreign supplier i.e. Agricom International

General Trading LLC for purchase of 22000 MT of Pigeon

Peas. Petitioner vide letter dated 05.09.2017 applied for

registration of contract for import of the entire quantity of

22000 MT under trade notice dated 31.08.2017. It is seen

that the application dated 05.09.2017 was fled along with

copy of application submitted online, copies of the fve

contracts alongwith addendums, copies of swift messages

from bank indicating remittance as per contracts and copy of

bank certifcate issued by the bank under the category of

advance payment being made prior to 05.08.2017.

Respondent No.6 initially issued two RCs both dated

06.09.2017 permitting import of 11000 MTs of Pigeon Peas

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per certifcate. We have seen that both the RCs are identical

except for the bold letter "E" in the second RC.

11. For the sake of convenience, one of the RCs dated

06.09.2017 issued by the Foreign Trade Development Ofcer

in the ofce of respondent No.6 is extracted below for

reference as under :-

GOVERNMENT OF INDIA

OFFICE OF THE ADDITIONAL DIRECTOR GENERAL

OF FOREIGN TRADE

Nishta Bhavan, 48, Vithaldas Thackersey Marg,

Churchgate, Mumbai 20

Telephone No.(022) 22017716, 22038094, 22033097, 22031074, fax

No.022 22001255, E-mail ID :- mumbai-dgft@nic.in.

File No.03/27/008/00161/AM18

REGISTRATION OF IRREVOCABLE LETTER OF

CREDIT/ ADVANCE PAYMENT UNDER PARA 1.05 (B)

OF THE FTP 2015-20202

(A) Applicant's Details

Name of the Firm / Company RIKA GLOBAL IMPEX LIMITED

Address 2ND FLOOR, SAKHAR BHAVAN,

230, NARIMAN POINT, MUMBAI -

400021

E - Code Number 0207011061

issuing Authority OFFICE OF THE DIRECTOR

GENERAL OF FOREIGN TRADE,

CALCUTTA

(B)L/C Registration Details

Notification No.19/(2015-2020)Notification Dt.05.08.2017

Trade Notice No.13/(2015-2020)Trade Notice Dt.11.08.2017

Trade Notice No.15/(2015-2020)Trade Notice Dt.31.08.2017

L/C No. / Advance Payment Details

Bank Reference

No.

Bank

Reference

No.

Amount in

US$

Proforma

Invoice No.

Proforma

Invoice Dt.

Import

Quantity

090230051011728.07.2017525288.57RIY/07/SPP/

17-18

26.05.201711000.00

Import Item Total Import Quantity

Pigeon Peas (Cajanus Cajan) /Toor Dal11000.00 MTS

Foreign Seller's Details

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Name of Seller Postal Address Country of

Origin

AGRICOM

INTERNATIONA

L GENERAL

TRADING LLIC.,

341/A, 3RD FLOOR GHURAIR

BUSINESS TOWER, P.O. BOX 118294,

ALRIQQA, DEIRA, DUBAI - U.A.E.

SUDAN

(C)Date of Receipt of Application :06.09.2017

Date of Issue : 27.10.2017

sd/-

(C.V. ARONDEKAR)

Foreign Trade Development Ofcer,

For Addl. Director General of Foreign Trade.

11.1. Perusal of the RC dated 06.09.2017 shows

that there is no validity period or expiry date stated therein.

The RC is in respect of the FTP (now extended upto

31.03.2021). The amendment sheet No.1 dated 02.11.2017

alters the country of origin in the RC and adds four more

countries in the column of country of origin in the RC.

Contention of the respondents that under para 1.05(b)

petitioner has not registered with the jurisdictional RA due to

change in policy of import of Pigeon Peas from free to

restricted category cannot apply to the petitioner's case as

the petitioner's contract was based on advance payment to

the supplier and not on the basis of ICLC (Irrevocable

Commercial Letter of Credit). Hence this submission of the

respondents cannot be accepted.

12. Further it is seen that petitioner was permitted to

import Pigeon Peas for the fscal years 2018-19 and 2019-20;

this fact is clear on perusal of the shipments of the Pigeon

Peas cleared for home consumption on 32 diferent occasions

by respondent No.3 between 28.02.2018 to 25.07.2020. This

data is placed on record in the additional afdavit dated

10.02.2021 fled by the petitioner at page Nos.165 to 167 of

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the paper book and is not denied or controverted by the

respondents; it is also seen that respondents were duly

informed by the petitioner about the extended period of

shipment and the subsequent addendums with its foreign

supplier and therefore the respondents' objection about the

validity period of the RC being restricted to the fscal year

2017-18 cannot be accepted. It is pertinent to note that if

any restriction with respect to prescribing limitation of time

limit is required to be imposed on any import then the RC

should have an endorsement to that efect; in the instant

case both the RCs presented before us do not have any such

endorsement limiting the import of Pigeon Peas only during

the fscal year 2017-18 and therefore there is substantial

merit in the case of the petitioner.

13. The notifcation dated 05.08.2017 and trade

notices dated 11.08.2017 and 31.08.2017 nowhere state that

the concerned import should be limited upto 31.03.2018. In

that case there should had been an express endorsement in

the notifcation or in the trade notices about their expiry or

there should have been a subsequent notifcation

superseding the notifcation / notices. It is also seen that the

DGFT has considered the addendums while issuing the RC. In

any case, by these addendums, terms of contract are not

substituted or changed, only period of shipment is extended.

In case of any material change in terms of contract,

petitioner would have applied to the concerned ministry for

seeking amendment. Petitioner had earlier applied for

amendment for change of country of origin and the same was

allowed. Customs have allowed the import even after

31.03.2018, the last import being made on 25.07.2020.

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Respondents therefore now cannot take a completely

contrary stand that the import was restricted only upto

31.03.2018 in the petitioner's case.

14. We therefore have no hesitation to hold that in the

facts of the present case the RC is binding on the

respondents until the completion of the import quota

mentioned therein and considering that the petitioner has

imported the import item before 31.03.2021, petitioner's

import is required to be declared as valid import under the

FTP. We may state that petitioner's application for import

was specifcally fled under notifcation dated 05.08.2017;

only pre-condition prescribed therein being registration of

contract if advance payment was made prior to 05.08.2017;

petitioner qualifed such pre-condition considering that its

contract was registered on 26.05.2017 in respect of the

import item and advance payment already made; the

subsequent addendums did not vary the principal contract

save and except the date of shipment and the country of

origin; petitioner having approached the DGFT for seeking

change of country of origin and the same having been

granted; the addendums were merely for convenience of the

parties for actual shipment of the import item and most

importantly the addendums were informed to the DGFT;

therefore contention of the respondents that the addendums

are to be treated as a supplementary contract or fresh

contract cannot arise as it is to be treated as part and parcel

of the principal contract between the parties. On perusal of

the notifcation dated 05.08.2017 it cannot be said that it

imposed restriction to complete the import of goods only

during the fscal year 2017-18; though there is a reference to

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the fscal year appearing in condition No.2 of the said

notifcation as regards the quota of 2 lakh MT per annum; this

reference is merely for the purposes of procedure to be

notifed for such import in terms of para 2.08 of the FTP;

however the subsequent trade notice dated 31.08.2017 which

directly concerns the petitioner's case in hand does not

mention its applicability to the fscal year 2017-2018 and

categorically specifes its applicability to the contract under

the FTP.

15. We may also note the contents of the clarifcatory

email dated 29.10.2020 issued by the Deputy DGFT, Mumbai

and addressed to the Deputy (PC-2) DGFT endorsing a copy

to the Mumbai DGFT and Joint DGFT which supports the

petitioner's case. For the sake of convenience the

clarifcation provided in the email is extracted as under.

"1.The application was made under Trade

Notice No.15(2015-20) dated 31.08.2017.

2. It is made against part advance payment

and rest amount payable against the documents.

3. The RC was not issued against any other

document.

4. The application was made against advance

payment. There was no IC involved.

5. The shipping date as per proforma - contract

/ addendums is 31

st

March, 2021."

15.1. Perusal of the clarifcatory email shows that it

is clarifed by the DGFT that petitioner's application for import

is made under the trade notice dated 31.08.2017 against part

advance payment and most importantly the shipping date as

per froforma - contract / addendums is 31.03.2021. This date

i.e. 31.03.2021 is relatable to the last addendum No.8 dated

15.09.2020 under the original contract dated 26.05.2017

which is annexed at page 80 of the paper book by the

petitioner. Thus this clearly surmises that the ofce of the

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DGFT has all along taken due cognizance of the addendums

and issued the clarifcation. Copy of this email has been

placed on record in the afdavit-in-rejoinder dated

08.01.2021 fled by the petitioner. Respondent Nos.4 to 6

have fled afdavit-in-reply dated 21.01.2021 of the Deputy

DGFT to the rejoinder dated 08.01.2021, wherein they have

conveniently chosen not to deal with the above email.

Additional afdavit dated 02.03.2021 is also fled by

respondent Nos.4 to 6, wherein once again a stoic silence is

maintained about the above email issued by the Deputy

DGFT and a contrary argument of limiting the import only to

the fscal year 2017-18 is advanced.

16. In view of the above discussion it is clearly

discernible that petitioner's import of 22000 MTs of Pigeon

Peas under the RCs issued to the petitioner is valid upto

31.03.2021 and the case of the respondents that the same is

restricted only to the fscal year 2017-18 is clearly untenable.

17. We may add that the respondents are statutory

authorities and in the facts of the present case have not

functioned responsibly. Petitioner's shipment of Pigeon Peas

of 2650 MT had arrived at the port in September 2020.

Petition was fled on 25.11.2020. Petitioner had pleaded

urgency for hearing. On 08.02.2021, respondent Nos.4 to 6

raised preliminary objection on maintainability by placing

internal communication dated 24.12.2020 addressed by the

Deputy DGFT to the respondent No.3 issuing clarifcation

regarding validity of the FTP 2015-2020. This letter is

extracted as under:-

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"No.M.5012/300/2012/PC-2 (AV) Vol/Part

- VI/P-9396

Government of India

Ministry of Commerce and Industry

Department of Commerce

Directorate General of Foreign Trade

........

Udyog Bhawan, New Delhgi

Dated 24

th

December 2020

To

The Ofce of the Commissioner of Customs (NS-

1)(Kind Attn.: Shri Anil K. Pundir, Asstt.

Commissioner) Jawaharlal Nehru Custom House,

Nhava Sheva

Tal - Uran, District : Raigad

MAHARASHTRA - 400 707.

Subject : Verifcation of Irrevocable Letter of Credit

/ Advance Payment under para 1.05. of the FTP

2015-2020 - reg.

Sir,

I am directed to refer to the letter No.S/26-

Misc-184/2011-12 GR. I & IA (Pt.III) dated

24.09.2020 on the subject cited above seeking

following clarifcations from the O/o Addl. Director

General of Foreign Trade, Mumbai :

i. Whether the above said ILC / Advance

payment dated 27.10.2017 is still valid ?

ii. If yes, please furnish date of expiry of the

same.

iii. Whether the consignments covered under

subject 03 bills of entry can be cleared

against the said ILC or otherwise ?

iv. Whether the said ILC / Advance Payment

can be utilized for further such imports if

any by the importer ?

2. In this regard the following clarifcation is

issued in-seriatim :

i. The validity of RC was only for the fscal

year 2017-18; as the provision for

registering RCs was made with reference to

Notifcation No.19/2015-2020 dated 5

th

August, 2017.

ii.The date of expiry is the date of lapse of

Notifcation i.e. 31.03.2018.

iii.& (iv) Customs may like to take a decision

based on the clarifcation furnished above.

3. This issues with the approval of Competent

Authority.

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Yours faithfully

sd/-

(S.K. Mohaptra)

Deputy Director General of Foreign Trade

Tel : 2306 1562 / Extn. 277

E-mail : mohapatra.sk@nic.in

copy to : The O/o Additional Director General of

Foreign Trade, Nishte Bhawan, 48, Vithaldas

Thackersey Marg, Churchgate, Mumbai - 20.

17.1. In the above letter the Deputy DGFT clarifed that

the validity of the RC was only for the fscal year 2017-18 as

the provision for registering RCs was made with reference to

Notifcation No.19/2015-2020 dated 05.08.2017 and the date

of expiry is the date of lapse of notifcation i.e. 31.03.2018.

18. We have already dealt with in detail as alluded to

herein above the issue of validity and expiry of the RC in the

petitioner's case. Though this letter is dated 24.12.2020, it

was not placed on record by respondent Nos.4 to 6 in their

reply afdavit dated 05.01.2021 and afdavit-in-reply to

petitioner's rejoinder afdavit dated 21.01.2021. This letter

was tendered in court for the frst time on 08.02.2021 and

after hearing the parties the following order was passed by

this Court:-

" Date : 08.02.2021

Mr. Rui Rodrigues, learned counsel for respondent

Nos.4, 5 and 6 has raised a preliminary objection as

to maintainability of the writ petition qua the said

respondents. He has taken us to the pleadings and

prayers made in the writ petition to support his

contention that no relief has been claimed against

respondent Nos.4, 5 and 6.

2.In the course of raising preliminary objection, Mr.

Rodrigues has also tendered a document dated

24.12.2020 issued by Deputy Director General of

Foreign Trade and addressed to the Commissioner of

Customs (Nhava Sheva-I) issuing clarifcations on the

letter dated 24.09.2020.

3.Since this document is not on record and may

have a bearing on the outcome of the adjudication,

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we grant liberty to learned counsel for the petitioner

to bring it on record by way of an additional afdavit

since the copy of the document was tendered in

Court by Mr. Rodrigues; copy of which was also

furnished to learned counsel for the petitioner.

4.We also grant liberty to the petitioner to make an

averment in the said additional afdavit about the

documents in the compilation sought to be relied

upon by the petitioner. Let the additional afdavit be

fled within two days.

5.In so far the preliminary objection raised by Mr.

Rodrigues is concerned, certainly that will be

considered by the Court but the Court intends to pass

a composite order on preliminary objection as well as

on merit.

6. Stand over to 12.02.2021."

19. If the aforesaid objection raised by respondent

Nos.4 to 6 is to be countenanced, then there was no reason

for the respondents to clear the 25 shipments of the

petitioner after 31.03.2018, i.e. from 23.04.2018 to

25.07.2020. The stand adopted by the respondents

especially respondent Nos.4 to 6 is against the spirit and

contents of the FTP. Para 1.07 of Chapter 1 of the FTP 2015-

2020 states that DGFT has a commitment to function as a

facilitator of exports and imports. Focus is on good

governance, which depends on efcient, transparent and

accountable delivery systems. It further states that in order

to facilitate international trade, DGFT consults various Export

Promotion Councils as well as Trade and Industry bodies from

time to time. Thus the DGFT is required to act as a facilitator

which is however not seen in the present case. We may also

refer to chapter 9 of the FTP which concerns with defnitions

and we may usefully extract the following defnitions to

understand the terminology. Paragraph 9.23 defnes 'free'

and states that free as appearing in the context of import /

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export policy for items means goods which do not need any

'Authorisation' / license or permission for being imported into

the country or exported out. Paragraph No.9.43 defnes

'quota' to mean the quantity of goods of a specifc kind that is

permitted to be imported without restriction or imposition of

additional duties. Therefore the objection raised by

respondent Nos.4 to 6 that the notifcation dated 05.08.2017

and the two trade notices dated 11.08.2017 and 31.08.2017

would restrict the import of Pigeon Peas only upto 31.03.2018

stands squarely rejected. Paragraph 9.47 defnes 'restricted'

to mean a term indicating the import or export policy of an

item, which can be imported into the country or exported

outside, only after obtaining an Authorization from the ofce

of DGFT.

20. Petitioner's import consignment of Pigeon Peas is

a perishable commodity. The 2650 MT consignment has

been lying at Nhava Sheva port due to suspension of

clearance since October 2020. Petitioner has also prayed for

reimbursement of costs of Rs.1,40,00,000.00 with interest

incurred by the petitioner on bonding / debonding and

withholding charges, though no pleadings and material to

that efect has been pleaded or urged during arguments. The

only pleading relating to loss / costs incurred by the

petitioner is found in paragraph No.37 of the petition which is

extracted as under :-

"The Petitioner states that shipment of approximately

2650 MT of Pigeon Peas imported under the said File

No.03/27/008/00161/AM18 dated 06.09.2017 has

already arrived at the port and delivery of 8350 MTs

of Pigeon Peas has been put on hold in view of

Respondent Nos.2 and 3 not permitting clearance of

the imported Pigeon Peas. The Petitioner will be

saddled with costs for the said stoppage by its seller

which is evident from letter dated 05.10.2020. The

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Petitioner states that the stoppage of shipment is on

Petitioners request and costs for which will have to

be borne by the Petitioner."

20.1. Petitioner has referred to letter dated

05.10.2020 received from its foreign supplier, but it relates to

future consignment and not the subject 2650 MT which is

stranded at the port. Hence petitioner's claim for bonding /

debonding and withholding charges in the absence of any

material and / or pleadings cannot be gone into. Needless to

say petitioner shall be at liberty to prosecute any such

remedy as available to it in the appropriate forum / court in

accordance with law.

21. Thus on a thorough consideration of the

submissions made by the parties and pleadings on record, we

are inclined to pass the following orders:-

(i)Respondents shall allow clearance of 2650 MT of

Pigeon Peas covered under Bill of Entry Nos. (i)

9029721 dated 02.10.2020, (ii) 9028987 dated

02.10.2020, (iii) 9028862 dated 02.10.2020, (iv)

8845847 dated 17.09.2020, (v) 8843086 dated

17.09.2020, (vi) 8842485 dated 17.09.2020, (vii)

8985829 dated 29.09.2020, (viii) 8987173 dated

29.09.2020, (ix) 8982222 dated 28.09.2020, (x)

8994149 dated 29.09.2020, (xi) 9008104 dated

02.10.2020, (xii) 9029328 dated 02.10.2020, and

(xiii) 9029262 dated 02.10.2020 for home

consumption to the petitioner forthwith;

(ii) Considering the lapse of time from the date of

fling of the petition i.e. November 2020 till the

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present order is passed, we direct that

respondents shall allow clearance of the balance

8350 MT of Pigeon Peas if imported by the

petitioner for home consumption under the RC

File No.03/27/008/00161/AM18 dated 06.09.2017

upto a period of 6 weeks from the date of passing

of the present order.

22. Ordered accordingly.

23. Consequently, writ petition is allowed in the above

terms. However, there shall be no order as to costs.

[ MILIND N. JADHAV, J. ] [ UJJAL BHUYAN, J. ]

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