2026-VIL-1207-BOM-CU
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CUSTOMS High Court Cases

Customs - Applicability of Notification amending import policy of studded platinum jewellery from Free to Restricted under Foreign Trade Policy to goods which arrived in India before publication of the Notification but for which Bills of Entry were filed after publication - Petitioner imported goods under Airway Bills dated 30th and 31st March 2026, which arrived in India prior to publication of the Notification in the Official Gazette on 2nd April 2026, while the Bills of Entry were filed after the Notification - Respondent refused release on the ground that the goods were restricted and pending clearance for home consumption - Whether the date of import for applicability of restriction is to be reckoned as per the Foreign Trade Policy or the Customs Act, 1962 and the Notification applies to goods which arrived before its publication - HELD - Paragraph 1.05(b) of the Foreign Trade Policy defines the date of import for the purpose of policy, and provides that import already made before the date of such restriction will not be affected. Paragraph 2.17(a) read with paragraph 11.11 of the Handbook of Procedures reckons the date of import with reference to the date of shipment or dispatch from the supplying country, which in case of import by air is the date of the relevant Airway Bill, and not the date of arrival or of clearance for home consumption - Once the date of import is defined under the Foreign Trade Policy, the date of import under the Customs Act cannot be applied, otherwise the date defined in the policy would be redundant and meaningless - The Hon'ble Apex Court decisions relied upon by the Respondent dealt with the rate of duty under Section 15 of the Customs Act and are distinguishable. The date of filing of B/E or the clearance post the restriction is wholly irrelevant to applicability of a change in the Foreign Trade Policy - The Notification, which is admittedly not retrospective, can be applied only to goods dispatched after its publication - The Notification is declared not applicable to goods arrived in India before its publication, the Respondent is directed to release the goods expeditiously and to permit submission of the Bill of Entry without insisting on Import Authorisation - The writ petition is allowed - Validity of Office Memorandum issued by the DGFT after filing of the writ petition clarifying that any import consignment not cleared before the date of Notification is governed by the Restricted policy irrespective of date of arrival of goods or filing of Bills of Entry, and effect of Import Authorisation issued thereunder - Respondent relied on the Office Memorandum dated 13th May 2026 to contend that the restriction applies irrespective of arrival of goods, and Import Authorisations were issued to the Petitioner on an interim basis pursuant to directions of the Hon'ble Apex Court - Whether the Office Memorandum can override the Foreign Trade Policy and the definition of date of import therein, and whether the Import Authorisation redresses the grievance of the Petitioner - HELD - The Office Memorandum is contrary to the Foreign Trade Policy and in the teeth of the decisions of the Gujarat and Delhi High Courts. It has no statutory force, is not even subordinate legislation, and no authority of law was pointed out for its issue. Relying on the Hon'ble Apex Court, a clarification contrary to statutory provisions or to law declared by the Courts is not binding and has no existence in law - The Foreign Trade Policy can be amended only by the Central Government in exercise of powers under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, and the purported clarification would literally amount to amending the policy and giving retrospective effect to the Notification, which is beyond the jurisdiction of the issuing authority - The Import Authorisation cannot be treated as redressal of the grievance of the Petitioner, since the conditions imposed therein were beyond the jurisdiction and authority of the Director General of Foreign Trade - The Office Memorandum is held to be of no effect on the goods. The writ petitions are allowed.
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