Ban On Export Of Onions: Filing & Generation Of Shipping Bill Not An Empty Formality; Bombay HC Allows Export Of Pending Consignment Of Onions With Valid Shipping Bills [Read Order]

Court decided the specific time of 10:28 pm after concluding that DGFT's notification was uploaded digitally at the same time on September 14.

Division bench of Justice Ujjal Bhuyan and Justice Abhay Ahuja were hearing the writ petition filed by the Horticulture Produce Exporters Association, a registered association of exporters of various types of onions and Rohan Shah, proprietor of Fair Agro Enterprises and a member of the first petitioner organisation, challenging the said notification.

Petitioners sought a direction to the respondents to release the goods (onions) for export where shipping bills of export were filed and generated with customs authorities at Nhava Sheva port before issuance of the impugned notification.

Senior Advocate Darius Shroff appeared on behalf of the petitioners along with Dr.Sujay Kantawala. ASG Anil Singh for Union of India, the Directorate General of Foreign Trade and custom authorities.

Previously in an order dated September 25, the bench had observed that the shipping bills filed prior to issuance of the impugned notification would not be construed to have lapsed till a decision is taken by the Court.

Thereafter, the case was taken up on a couple of occasions. On October 6, petitioners were directed to produce relevant records/documents relating to entry and exit of 68 containers from the parking plaza of Nhava Sheva Port Trust. Authorities of the parking plaza were directed to extend co-operation to the petitioners for production of the above documents. Then, on October 8, petitioner's advocates submitted a list of 26 containers. It was stated that because of the present situation, petitioners could not collect details of the remaining containers.

At this stage, Additional Solicitor General Anil Singh made a submission that he would verify the list submitted by the petitioners with the customs authorities and if it was found that those containers were parked in the parking plaza and subsequently made their exit, those would be allowed to be exported. While deferring the matter to October 13, the Court observed that if the petitioners received details of the balance containers, those should be furnished to the office of ASG Singh for verification as well.

During the hearing on October 13, on a query by the Court, petitioner's counsel Senior Advocate Darius Shroff submitted that challenge to the legality and validity of the impugned notification dated September 14 would stand and they would like to press the same as and when Court decides to finally hear the matter. The matter was reserved for orders thereafter.

Court referred to the allegation made by the petitioners that even before the impugned notification was published for information of the trade and public, the customs authorities acting upon some inside information kept on hold the consignments where 'Let Export Orders' were not issued from the morning of September 14, 2020.

According to the petitioners, some information was internally communicated to the customs authorities that there would be some policy changes regarding export of onions and on that basis, the customs authorities did not allow entry of trucks carrying consignments (onions) inside the gates of the customs area. The allegation is that during the whole day of September 14, 'Let Export Orders' were not issued despite filing and generation of shipping bills for export of onions.

Approximately 68 containers of exportable onions were brought to the parking plaza outside the customs area but the concerned customs authorities during the entire day did not process the 'Let Export Orders' of those containers despite filing and generation of shipping bills. Petitioners immediately raised a grievance by sending e-mail to DGFT on September 14 at 4:11 p.m. Thereafter prayer was made before the Commissioner, Nashik on September 17 to take up the matter with DGFT.

Three separate affidavits were filed on behalf of the respondent customs authorities. In one of the affidavits, it is admitted that petitioners' submission that 'Let Export Orders' of 68 containers which were kept outside the parking plaza were not processed is quite possible as the containers were not brought inside the parking plaza nor documents relating to the containers were registered.

Addressing the same, Court noted- "At the same time there is an evasive denial by the said respondents to the allegation that customs authorities acted arbitrarily on 14.09.2020 by not processing Let Export Orders for the 68 containers."

Customs authorities also argued that no documents have been placed on record to show that the containers were parked in the parking plaza, including any gate slip issued to show entry of the containers into the parking plaza.

Referring to the allegations on the customs authorities of acting upon insider knowledge of the said notification before it was issued, the bench observed-

"Though petitioners have made a specific and serious allegation of insider knowledge of the customs authorities during the morning hours of 14.09.2020 about a notification to be issued prohibiting export of onions and acting upon such insider information did not accept any container of onions during the whole day of 14.09.2020, the same has not been specifically denied by respondent Nos.4, 5 and 6 in the three affidavits."

Moreover, the bench examined the relevant provisions of the Customs Act and said-

"A conjoint reading of sections 50 and 51 of the Customs Act would prima facie indicate that a great deal of sanctity is attached to a shipping bill and a bill of export, shipping bill in the present case. While presenting a shipping bill the exporter has to disclose all the relevant information pertaining to the export and has to make a declaration as to the truthfulness of the contents of the shipping bill."

Then, Court referred to the Shipping Bill (Electronic Integrated Declaration and Paperless Processing) Regulations, 2019, made by the Central Board of Indirect Taxes and Customs as well as the communication by Central Board of Indirect Taxes and Customs dated September 18, 2020 whereby clarification has been issued stating that wherever procedural/policy provisions have been modified to the disadvantage of the exporters, the same shall not be applicable to consignments already handed over to the customs for examination and subsequent exports upto public notice/notification date. It has been clarified that this provision would remain applicable wherever the conditions are met.

Finally, the bench noted-

"Thus, filing and generation of shipping bill is not an empty formality. It has a definite meaning assigned to it under the 2019 Regulations. It sets in motion the process of exportation of goods. The 2019 Regulations only reinforces the sanctity attached to a shipping bill under section 50 of the Customs Act."

Thus, Court granted interim relief to the petitioners and ruled that export of onions in respect of the shipping bills which were presented and generated prior to 10:28 pm on September 14, 2020 shall be allowed subject to the clarification given by the Central Board of Indirect Taxes and Customs in its communication dated September 18.

The matter will now be listed for hearing in the first week of December, 2020.