Heimerle Refinery Private Limited vs The Union Of India

CNR No : HCBM020159012026

2026:BHC-OS:22729-DB

6.wp-3274-2026.odt
Bhogale
PRADNYA
MAKARAND
BHOGALE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

Digitally signed by
PRADNYA
MAKARAND
BHOGALE
Date: 2026.10.19
17:06:38 +0530
WRIT PETITION NO.3274 OF 2026
Heimerle Refinery Private Limited
a company incorporated under the
Companies Act, 2013, and
having its registered office at
FF-22, Shripad Residency,
Satyamev Vista Lane, Gota,
Ahmedabad, Gujarat – 382 481 … Petitioner
Versus
1. The Union of India
Through the Secretary,
Ministry of Finance,
Department of Revenue,
Government of India,
New Delhi – 110 001
2. The Commissioner of Customs,
Airport Special Cargo
Commissionerate,
Mumbai Customs Zone – III
having his office at
Ground Floor, G-Block,
Bharat Diamond Bourse,
Bandra Kurla Complex,
Bandra (East), Mumbai – 400 051
3. The Deputy Commissioner
of Customs, Airport Special Cargo
Commissionerate, Precious Cargo
Customs Clearance Centre,
Having his office at
Ground Floor, G-Block,
Bharat Diamond Bourse,
1
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
Bandra Kurla Complex,
Bandra (East), Mumbai – 400 051
4. The Chief Commissioner of Customs,
Airport Special Cargo
Commissionerate,
Mumbai Customs Zone – III
having his office at
Ground Floor, G-Block,
Bharat Diamond Bourse,
Bandra Kurla Complex,
Bandra (East), Mumbai – 400 051
5. The Director General of Foreign
Trade, having his office at
Vanijya Bhavan, 16 Akbar Road,
New Delhi – 110 011
6. The Union of India
Through the Secretary,
Ministry of Commerce and
Industry, Government of India
Vanijya Bhavan, 16 Akbar Road,
New Delhi – 110 011 .… Respondents
WITH
INTERIM APPLICATION (L) NO.22543 OF 2026
IN
WRIT PETITION NO.3274 OF 2026
Heimerle Refinery Private Limited
a company incorporated under the
Companies Act, 2013, and
having its registered office at
FF-22, Shripad Residency,
Satyamev Vista Lane, Gota,
Ahmedabad, Gujarat – 382 481 … Applicant
2
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
IN THE MATTER OF :-
Heimerle Refinery Private Limited
a company incorporated under the
Companies Act, 2013, and
having its registered office at
FF-22, Shripad Residency,
Satyamev Vista Lane, Gota,
Ahmedabad, Gujarat – 382 481 … Petitioner
Versus
1. The Union of India
Through the Secretary,
Ministry of Finance,
Department of Revenue,
Government of India,
New Delhi – 110 001
2. The Commissioner of Customs,
Airport Special Cargo
Commissionerate,
Mumbai Customs Zone – III
having his office at
Ground Floor, G-Block,
Bharat Diamond Bourse,
Bandra Kurla Complex,
Bandra (East), Mumbai – 400 051
3. The Deputy Commissioner
of Customs, Airport Special Cargo
Commissionerate, Precious Cargo
Customs Clearance Centre,
Having his office at
Ground Floor, G-Block,
Bharat Diamond Bourse,
Bandra Kurla Complex,
Bandra (East), Mumbai – 400 051
3
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
4. The Chief Commissioner of Customs,
Airport Special Cargo
Commissionerate,
Mumbai Customs Zone – III
having his office at
Ground Floor, G-Block,
Bharat Diamond Bourse,
Bandra Kurla Complex,
Bandra (East), Mumbai – 400 051
5. The Director General of Foreign
Trade, having his office at
Vanijya Bhavan, 16 Akbar Road,
New Delhi – 110 011
6. The Union of India
Through the Secretary,
Ministry of Commerce and
Industry, Government of India
Vanijya Bhavan, 16 Akbar Road,
New Delhi – 110 011 .… Respondents

Mr. Prakash Shah, Senior Advocate a/w Adv. Jas Sanghavi,
Adv. Linzy Sharan i/b. PDS Legal, for the petitioner.
Adv. Maya Majumdar a/w Adv. Abhishek R. Mishra, for
respondent Nos.1 to 4.
Adv. Jitendra B. Mishra a/w Adv. Ashutosh Misra, for Respondent
Nos. 5 and 6 – UOI/DGFT.

CORAM : M. S. KARNIK &
SANDESH D. PATIL, JJ.
th
DATE : 19 OCTOBER 2026
4
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
JUDGMENT (PER M. S. KARNIK, J.) :
1. The challenge in this writ petition filed under Article 226
th
of the Constitution of India is to the communications dated 15
th
April 2026 and 16 April 2026 issued by the respondent-authority.
2. The issue involved in this writ petition is already
th
crystallised in the order dated 5 May 2026 passed by this Court.
The issue involved in this writ petition is “Whether the imported
goods which arrive within the territorial jurisdiction of India
st
before the Notification No.02/2026-27 was published on 1 April
2026 shall be covered under the said notification.” By interim
th
order dated 5 May 2026, this Court granted interim relief to the
petitioner on furnishing an ITC Bond for release of the
st
consignments which arrived on 1 April 2026 in respect of which
st
Bill of Entry Nos.8411463 and 8418268 were filed on 1 April
2026. Further, this Court directed the provisional release of the
th
other two consignments vide Bill of Entry Nos.8590663 dated 10
th
April 2026 and 8735308 dated 17 April 2026, on furnishing 50%
of the total value of the said two consignments through bank
5
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
guarantee and supported by ITC Bond for the remaining 50% of
the value.
3. Mr. Shah, learned Senior Advocate for the petitioner,
pointed out that no order was passed in respect of the goods for
th
which Bill of Entry No.8590666 dated 10 April 2026 was filed by
th
the petitioner. In furtherance of the said order dated 5 May 2026,
the goods covered under Bills of Entry Nos.8411463 and 8418268
st
dated 1 April 2026 are cleared by the respondents for home
st
consumption upon acceptance of two bonds, both dated 21 May
2026, executed by the petitioner and accepted by the department.
Thus, the dispute in the present writ petition is now restricted to
goods not permitted to be cleared by the respondents in respect of
th
Bill of Entry Nos.8590663 dated 10 April 2026, 8590666 dated
th th
10 April 2026 and 8735308 dated 17 April 2026.
4. In respect of the aforesaid three bills of entry, the
petitioner filed Petition for Special Leave to Appeal (C) No.18946
th
of 2026 before the Hon’ble Supreme Court. By the order dated 29
May 2026, the Hon’ble Supreme Court, as and by way of an
6
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
interim measure, permitted the petitioner to apply as per the
th
Office Memorandum dated 13 May 2026 and directed the
Competent Authority to consider and dispose of the said
th
application. The import authorisations dated 9 July 2026 were
issued in terms of the said directions of the Hon’ble Supreme
th
Court. By the order dated 17 August 2026, the Hon’ble Supreme
Court disposed of the SLP, clarifying that this Court will take up
and dispose of the above writ petition on its own merits without
being influenced by any of the observations or developments that
have taken place subsequently.
5. Now let us refer to the relevant facts. The imported goods
were dispatched from the country of export and had arrived in
st nd
India on 1 April 2026 at 00:42 a.m. and 2 April 2026 at 01:39
a.m., which is prior to the publication of Notification No.02/2026-
st
27 dated 1 April 2026 (“Notification”, for short) in the Official
nd
Gazette on 2 April 2026 at 20:52:28 hours, amending CTH 7113
under Chapter 71 of ITC (HS) Schedule I to the Foreign Trade
Policy (“FTP”, for short) in respect of the goods from “free” to
“restricted”.
7
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
6. The goods were sought to be released by the petitioner on
a later date, which was refused by the respondent on the ground of
it being restricted goods as per the notification. There is no dispute
so far as the aforesaid facts are concerned. The issue involved for
consideration is thus :-
(i) What is the relevant date of import for the purpose of
restriction imposed under the FTP formulated under
Section 5 of the Foreign Trade (Development and
Regulation) Act, 1992 ? and
(ii) Whether the restriction imposed on the goods under
ITC (HS) 7113 vide the notification and published in the
nd
e-official Gazette on 2 April 2026 with a time stamp of
20:52:28 hours apply to the good arrived in India before
the publication of the notification and for which bills of
entry are filed after the publication?
7. Thus, there is no dispute that the goods arrived in India
before the publication. There is also no dispute that the Bills of
Entry are filed by the petitioner after the notification.
8
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
8. There is no dispute about the rate of duty or the value of
the imported jewellery in the present case. The petitioner is not
disputing the power to amend the FTP or the validity of the
notification. The only contention is that the restriction does not
apply to goods already arrived in India before the change of FTP.
Thus, the petitioner urged that the date of import would be
relevant for applicability of restriction imposed under the FTP on
the goods, which undisputedly arrived in India well before the
publication of the notification amending the CTH 7113.
9. Learned Senior Advocate relied upon the following
decisions in support of his submissions :-
(1) Enero Jewels Pvt. Ltd. & Anr. vs. The Union of India
1
& Ors. .
(2) M/s. Bright Metal Refiners vs. Director General,
2
Directorate General of Foreign Trade & Ors. .
th
(3) Order dated 19 June 2026 passed by the Hon’ble
Delhi High Court in Cont. Cas(C) No.1059 of 2026 (M/s.
Bright Metal Refiners vs. Dheeraj Rastogi & Ors.).
nd
(4) Order dated 22 June 2026 passed by the Hon’ble
1 2026 (4) TMI 1607 – Gujarat High Court
2 2026 (6) TMI 407 – Delhi High Court
9
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
Delhi High Court in Cont. Cas(C) No.1059 of 2026 (M/s.
Bright Metal Refiners vs. Dheeraj Rastogi & Ors.).
nd
(5) Order dated 2 July 2026 passed by the Hon’ble
Delhi High Court in Review Pet. 269/2026 (M/s. Bright
Metal Refiners vs. Dheeraj Rastogi & Ors.).
(6) Union of India & Others vs. M/s. GS Chatha Rice
3
Mills & Another .
4
(7) Viraj Impex Pvt. Ltd. vs. Union of India .
5
(8) Colossustex Pvt. Ltd. and Anr. vs. Union of India .
(9) Commissioner of Income-Tax, Vidrarbha &
Marathwada, Nagpur vs. Smt. Godavaridevi Saraf,
6
Tumsar .
7
(10) Vidarbha Beverages vs. Union of India .
(11) Hindustan Equipment Craft vs. Assistant
8
Commissioner of State Tax .
9
(12) M. D. Overseas Ltd. vs. Union of India .
(13) Collector of C. Ex., Ahmedabad vs. Orient
10
Fabrics Pvt. Ltd. .
(14) Director General of Foreign Trade vs. Kanak
3 2020 (9) TMI 903 – Supreme Court
4 2026 (396) E.L.T. 113 (S.C.)
5 2024 (387) E.L.T. 277 (Bom.)
6 1978 (2) E.L.T. (J 624) (Bom.)
7 (2026) 41 Centax 61 (Bom.)
8 (2026) 40 Centax 83 (Bom.)
9 2020 (371) E.L.T. 359 (Del.)
10 2003 (158) E.L.T. 545 (S.C.)
10
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
11
Exports .
(15) Bhavnagar University vs. Palitana Sugar Mill (P)
12
Ltd. and Others .
(16) Chowgule & Company Limited vs. Assistant Director
13
General of Foreign Trade and Others .
(17) Union of India and Others vs. Ganesh Das
14
Bhojraj .
15
(18) Kiran Spinning Mills vs. Collector of Customs .
10. Learned Senior Advocate laid much emphasis on the
decision of the High Court of Gujarat in Enero Jewels Pvt. Ltd. &
Anr. (supra) and that of the High Court of Delhi in M/s. Bright
Metal Refiners (supra) which according to him are on identical
facts. Learned Senior Advocate submitted that these two decisions
have been accepted by the Revenue and their goods have been
released. It is submitted that the Revenue having not challenged
these decisions, even the petitioner would be entitled to the same
relief in view of the reasoning.
11. Mr. Mishra, learned counsel for the Revenue vehemently
11 2015 (326) E.L.T. 26 (S.C.)
12 (2003) 2 SCC 111
13 (2023) 1 SCC 320
14 (2000) 9 SCC 461
15 1999 (113) EL.T. 753 (S.C.)
11
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
opposed the writ petition. Our attention is invited to the affidavit-
in-reply filed on behalf of the respondent No.5 - The Director
General of Foreign Trade affirmed by Mr. Ashwin Golapkar,
Deputy Director General of Foreign Trade. For convenience and to
appreciate the stand of the respondent No.5 it would be apposite
to extract the relevant portion of the detailed affidavit-in-reply
filed which reads thus :-
“2. At the outset it is submitted that Notification No.
02/2026-27 dated 01.04.2026 ("impugned Notification"),
whereby the import policy of goods falling under CTH
71131922 of Chapter 71 of ITC (HS) 2022 was revised from
"Free" to "Restricted", has been issued by Respondent No.5 in
valid and lawful exercise of the powers conferred under
Sections 3 and 5 of the Foreign Trade (Development and
Regulation) Act, 1992 ("FTDR Act, 1992") read with
paragraphs 1.02 and 2.01 of the Foreign Trade Policy, 2023
("FTP 2023"). I say that the impugned Notification is neither
illegal, arbitrary, unconstitutional, nor ultra vires the FTDR
Act, 1992, and I deny each and every allegation to the contrary
made in the Petition, as if the same were set out herein and
traversed seriatim.
3. I say that, by way of clarification, Respondent No.5
issued an Office Memorandum dated 13.05.2026, clarifying
that the impugned Notification stipulates immediate
applicability and expressly excludes any transitional benefit
under paragraph 1.05(b) of FTP 2023, irrespective of shipment
status or prior filings, and that any import consignment not
cleared before 01.04.2026 is governed by the revised
"Restricted" policy, irrespective of the date of arrival of goods
12
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
or filing of Bills of Entry. I say that the said Office
Memorandum further clarified that importers may apply for
Import Authorisation with a specific request for consideration
under paragraph 2.12 of FTP 2023. Hereto annexed and
marked as Exhibit A is copy of Office Memorandum dated
13.05.2026 issued by the Respondent No.5.
9. It is submitted that the Impugned Notification is
prospective, and not retrospective, in its operation. It applies to
all consignments of the specified tariff item (CTH 7113) that
had not been cleared for home consumption as on the
date/time it came into force. It does not, in law, take away any
vested right of the Petitioner, since no vested right to clearance
under the erstwhile "Free" import policy accrues merely upon
the physical landing/arrival of goods at an Indian port or
airport. It is well-settled by the Hon'ble Supreme Court that
"import" is complete, and the taxable/regulatory event occurs,
only when goods are cleared for home consumption / cross the
customs barrier, and not on the date the conveyance lands or
the goods enter Indian territorial limits and accordingly
reliance is placed on Union of India v. Ganesh Das Bhojraj,
(2000) 4 SCC 5 and Kiran Spinning Mills v. Collector of
Customs, 1999 (113) ELT. 753 (SC). Thus, applying this
settled principle, since the Petitioner's Bill of Entry No.
8410589 dated 31.03.2026 remained, admittedly, unassessed
and uncleared (no Out of Charge order having been issued) as
on the date the Impugned Notification came into force, the
Petitioner cannot claim any vested or accrued right to
clearance under the policy as it stood prior to the Impugned
Notification. It is pertinent to note that the definition of
"import" as provided under the provisions of the FTDR Act is
analogous to the aforesaid meaning of import as laid down by
the Hon'ble Supreme Court and congruent with the definition
as provided under the Customs Act, 1962.
10. It is further respectfully submitted that the Impugned
Notification does not violate Article 20 of the Constitution of
India. Article 20(1) protects a person only against (i)
13
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
conviction for an act which was not an offence at the time of
its commission, and (ii) imposition of a penalty greater than
what was prescribed under the law in force at the time of
commission of the offence. It has no application to a
prospective economic/trade-regulatory measure that merely
governs future clearance of goods. The decision in Collector of
C. Ex., Ahmedabad v. Orient Fabrics Pvt. Ltd., 2003 (158)
E.L.T. 545 (S.C.), relied upon by the Petitioner, was rendered
in the context of a penal provision ("offences and penalties")
and is factually and legally distinguishable and inapplicable.
11. The exclusion, vide Paragraph 2 of the Impugned
Notification, of the benefit of transitional arrangements
otherwise available under Paragraph 1.05(b) of the FTP, 2023,
and the stipulation, vide Paragraph 3 thereof, that the
amended import policy shall operate "irrespective of any prior
contract, irrevocable letter of credit, advance payment, or
shipment status", are valid and lawful exercises of the very
same statutory power under which the FTP itself, including
Paragraph 1.05(b), has been framed. A subsequent, specific
notification issued by the same delegate, in exercise of the
same statutory power, validly carves out an exception to a
general provision of the FTP/HBP on the settled principle
generalia specialibus non derogant.
12. The decision of the Hon'ble Gujarat High Court in
Enero Jewels Pvt. Ltd. & Anr. v. Union of India & Ors., 2026
(4) TMI 1607 (Exhibit "D" to the WP), relied upon by the
Petitioner, is not binding on this Court, being the decision of a
coordinate High Court. With the utmost respect, the said
decision does not appear to have had the benefit of
consideration of the binding Supreme Court authorities in
Ganesh Das Bhojraj and Kiran Spinning Mills (supra), which
directly bear upon, and are contrary to, the proposition that
mere "landing" of goods (as opposed to clearance for home
consumption) determines the applicability of a subsequently
notified import restriction. The said decision, being per
incuriam of binding Supreme Court precedent to the extent
14
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
aforesaid, does not bind this Court, and this Court is not
obliged to follow the same, the principle in Commissioner of
Income-Tax, Vidarbha & Marathwada v. Smt. Godavaridevi
Saraf, 1978 (2) E.LT. (J 624) (Bom.) being, in any event,
always subject to binding Supreme Court law.
15. With reference to Para 2 of the Petition, I say that it is
submitted that Respondent No.5 has, at all material times,
acted strictly within the four corners of the powers conferred
upon the Directorate General of Foreign Trade under Sections
3 and 5 of the FTDR Act, 1992 read with the Foreign Trade
Policy, 2023 ('FTP 2023') framed thereunder.
16. With reference to Para 3 of the Petition, it is denied
that Notification No. 02/2026-27 dated 01.04.2026
('impugned Notification') is illegal, arbitrary or without
authority of law. The impugned Notification has been issued
by Respondent No.5 in valid and lawful exercise of powers
conferred under Section 3 read with Section 5 of the FTDR
Act, 1992 and paragraphs 1.02 and 2.01 of FTP 2023,
amending the import policy of goods falling under CTH
71131922 of Chapter 71 of ITC (HS) 2022 from 'Free' to
'Restricted'. The impugned Notification is a piece of
subordinate/delegated legislation validly notified in the
Official Gazette and is neither ultra vires the FTDR Act, 1992
nor violative of any constitutional provision. It is denied that
the action of Respondent No.5 is ex-facie arbitrary,
unreasonable, illegal, perverse or without authority of law. The
Respondent No.5 has no comments on the impugned
communications dated 15.04.2026 and 16.04.2026 issued by
Respondent Nos. 2 and 3, which fall within the domain of the
Customs authorities.
18. With reference to Para 4 of the Petition, it is humbly
submitted that the decision of the Hon'ble Gujarat High Court
in Enero Jewels Pvt. Ltd. & Anr. vs. Union of India & Ors.
(2026 (4) TMI 1607) was not rendered after considering the
specific 'non-obstante'/exclusionary stipulation contained in
the impugned Notification itself, whereby transitional benefit
15
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
under para 1.05(b) of FTP 2023 has been expressly and
specifically excluded 'irrespective of shipment status' and
'irrespective of prior filings', as clarified by the Office
Memorandum dated 13.05.2026 issued by Respondent No.5. It
is submitted that under para 1.04 of FTP 2023 ('Specific
provision to prevail over the general'), a specific provision spelt
out in the FTP prevails over a general provision. That the
impugned Notification being a specific and later exercise of the
very same rule-making power under Sections 3 and 5 of the
FTDR Act, 1992, validly excludes/overrides the general
transitional benefit otherwise available under para 1.05(b) of
FTP 2023. In any event, the ratio in Enero Jewels (supra) was
rendered in the context of the general principle recognized in
Union of India v. G.S. Chatha Rice Mills, 2020 (374) E.L.T.
289 (SC) regarding the date/time of publication of a
notification, and does not detract from the settled position in
Union of India v. Ganesh Das Bhojraj, (2000) that the import
policy applicable to a consignment is the policy in force on the
date of its actual clearance, i.e. filing/assessment of the Bill of
Entry, and not the date of shipment or arrival of goods.
19. It is pertinent to note that the exclusion, vide
Paragraph 2 of the Impugned Notification, of the benefit of
transitional arrangements otherwise available under Paragraph
1.05(b) of the FTP, 2023, and the stipulation, vide Paragraph
3 thereof, that the amended import policy shall operate
"irrespective of any prior contract, irrevocable letter of credit,
advance payment, or shipment status", are valid and lawful
exercises of the very same statutory power under which the
FTP itself, including Paragraph 1.05(b), has been framed. A
subsequent, specific notification issued by the same delegate,
in exercise of the same statutory power, validly carves out an
exception to a general provision of the FTP/HBP on the settled
principle generalia specialibus non derogant.”
12. Mr. Mishra thus submitted that the FTP and the DGFT
16
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
Notification have statutory force since both are issued by the
Central Government by deriving authority from a common parent
Act, i.e. Foreign Trade Regulation Act, 1992 (“FTDR”). The FTP on
which the petitioner relies is formulated by the Central
Government by exercising its power under Sections 3 and 5 of the
st
FTDR, whereas the Notification dated 1 April 2026 has also been
issued under Sections 3 and 5 of the FTDR Act, 1992, which
amended the import policy of goods falling under CTH 7113 of
ITC (HS) 2022, Schedule-I (Import Policy) to change from “Free”
to “Restricted” with immediate effect.
13. The Notification which is later in time contains a specific
non obstante clause, which clearly stipulates that the restriction
shall apply irrespective of shipment status, prior contracts, or any
other commitments, and that the benefit of transitional
arrangements shall not be available. The reliance placed by the
petitioner on paragraph 2.17(a) of FTP 2023 is misplaced, as the
said Notification, having statutory force, overrides the general
provisions of FTP 2023, and consequently, the benefit of
transitional arrangements is not available. Also, the restriction
17
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
placed through the said notification is of a later date; hence, the
embargo placed through the notification will prevail over the
previous one i.e. the FTP 2023.
14. Mr. Mishra submitted that the argument of the petitioner
that the relevant date mentioned in this present matter, being the
Airway Bill as per FTP will not be applicable since the notification
clearly mentions these restrictions shall apply notwithstanding
para 1.05(b) of the FTP 2023 and shall operate irrespective of any
prior contract … shipment status, or any other commitment
whatsoever. Accordingly, the benefit of transitional arrangements
shall not be available. Mr. Mishra heavily relied on the decision of
the Hon’ble Supreme Court in Union of India and others vs.
Ganesh Das Bhojraj (supra) that the import policy applicable to a
consignment is the policy in force on the date of its actual
clearance, that is filing/assessment of the bill of entry, and not the
date of shipment or arrival of goods.
15. We have heard learned counsel. We have perused the
pleadings, the materials on record and the decisions relied upon in
18
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
support.
16. The petitioner imported Studded Platinum Jewellery
th st
under 5 Airway Bills dated 30 March 2026 and 31 March 2026.
There is no dispute that the goods arrived in India prior to the
nd
publication of the notification dated 2 April 2026 under the FTP
in respect of goods from “free” to “restricted”. There is also no
dispute that the Bills of Entry for release of the goods were filed
nd
after the notification dated 2 April 2026 was published in the
Official Gazette. There is no dispute about the rate of duty or the
value of the imported jewellery in the present case. The petitioner
is neither disputing the power to amend the FTP nor the validity of
the notification. The only contention is that the restriction does not
apply to goods already arrived in India before change of FTP.
Thus, the issue is the date of import for applicability of restriction
imposed under the FTP on the goods, which undisputedly arrived
in India well before the publication of the notification amending
the CTH 7113.
17. The respondents contend that since the goods were
19
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
pending clearance for home consumption, the restriction on their
imports are covered by the notification and are seeking to apply
the date of import under the Customs Act, 1962. Paragraph 1.05
(b) of the FTP defines the date of import for the purpose of policy.
It reads thus :-
“1.05(b) ......... 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 defined in para 2.17 of
HBP 2023. 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 affected. … ….. ”
18. In the present case, admittedly the Bill of Lading and
Shipping Bill are the key documents which indicate the date of
import and export respectively which is well before the change of
policy from 'free' to 'restricted/prohibited/state trading' or
'otherwise regulated'. Thus, the import/export was already made
before the date of such regulation/restriction. In our view and as
rightly submitted by Mr. Shah, learned Senior Advocate, once the
date of import is defined under the FTP, it is not open for the
20
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
respondents to take recourse to the date of import under the
Customs Act. The goods were shipped in terms of the policy.
19. The issue involved in the present case is squarely covered
by the decisions of the High Court of Gujarat in Enero Jewels Pvt.
Ltd. & Anr. (supra) and of the High Court of Delhi in M/s. Bright
Metal Refiners (supra). The goods were permitted to be cleared
even though the bills of entry were filed post the publication of the
notification and pending clearance with the Customs. The
respondents have accepted the judgments of the High Court of
Gujarat and the High Court of Delhi. Their Lordships have
decisively concluded the applicability of the notification to the
goods which arrived prior to the publication of the notification.
20. In Enero Jewels Pvt. Ltd. & Anr. (supra), the High Court
of Gujarat directed clearance of the consignment without insisting
on import authorisation. No bill of entry was filed by the petitioner
before the date of the notification. IGM No.3020909 was filed by
the Airline. It is only post the judgment, that the petitioner filed
nd
the bill of entry only on 22 April 2026 and was permitted to clear
21
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
the goods for home consumption without demur.
21. In M/s. Bright Metal Refiners (supra), all the goods
arrived in India before the publication of Notification and some of
the bills of entry were filed post the publication of notification on
rd th
3 April 2026 and 7 April 2026. The High Court of Delhi held
that the restriction did not apply to goods imported prior to the
Notification coming into force and were permitted clearance in
accordance with the conditions and legal position that prevailed
before the issuance of the said notification. Even in M/s. Bright
Metal Refiners (supra), the goods were allowed to be cleared for
which the bills of entry were filed post the publication of the
Notification and one of the respondents before the High Court of
Delhi was the Commissioner of Customs, Air Special Cargo,
Mumbai.
22. Thus, the judgments rendered in Enero Jewels Pvt. Ltd. &
Anr. (supra) and M/s. Bright Metal Refiners (supra) have not only
attained finality but have been acted upon. It is a settled principle
of taxation jurisprudence that the Revenue is bound to maintain
22
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
consistency in applying the law to similarly situated assesses. Mr.
Shah, learned Senior Advocate for the petitioner, placed reliance
on the decision of the Hon’ble Supreme Court in Pr. CIT, New
16
Delhi vs. Maruti Suzuki (India) Limited , and that of the High
Court of Allahabad in Samsung India Electronics Pvt. Ltd. vs. State
17
of U.P. in support.
23. It is pertinent to refer to paragraph 2.17(a) read with
paragraph 11.11 of the Handbook of Procedure, 2023 (“HBP”) for
the purpose of FTP, which indicates that the date of reckoning of
import is to be decided with reference to the date of
shipment/dispatch of goods from the supplying country and not
the date of arrival of goods at an Indian port or on the date of
clearance for home consumption. Paragraph 2.17(a) of the HBP is
extracted below for the facility of convenience :-
“2.17(a) Date of reckoning of import is decided with
reference to date of shipment/dispatch of goods from
supplying country as given in Paragraph 11.11 of Handbook
of Procedures and not the date of arrival of goods at an
Indian port.”
16 (2020) 18 SCC 331 (Para 37)
17 (2024) 17 Centax 131 (All.) (para 15)
23
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
24. The petitioner is not claiming any benefit of transitory
provisions contained in paragraph 1.05(b) of the FTP. The
transitory provisions apply to goods not arrived in India before
change of FTP. Paragraph 1.05(b) of the FTP is extracted below
for the facility of convenience :-
“1.05(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 defined in para 2.17 of HBP 2023. 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 affected.
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 who 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 of 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 Notification) unless
otherwise provided for.”
25. Further, paragraph 11.11 of the HBP specifically provides
24
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
that, in the case of import by air, the date of shipment shall be the
date of the relevant Airway Bill, provided it represents the date on
which the goods left the last airport in the country of export. For
facility of convenience paragraph 11.11 of the HBP is extracted
which reads thus :-
“11.11 Date of shipment/Dispatch in respect of Imports
Date of shipment/dispatch for imports will be reckoned
as under :-
S.No. Mode of Transportation Date of Shipment/Dispatch
(i) By Sea The date affixed on the Bill of
Lading
(ii) By Air Date of relevant Airway Bill
provided this represents date on
which goods left last airport in
the country from which the
import is effected.
(iii) From land-Locked Date of dispatch of goods by rail,
Countries road or other recognised mode of
transport to consignee in India
through consigrunent basis.
(iv) By Post Parcel Date stamp of office of dispatch
on the packet or dispatch note
(v) By Registered Courier Date affixed on Courier
Service Receipt/Waybill
(vi) Multimodal Transport Date of handing over goods to
first carrier in a combined
transport Bill of Lading
26. The Hon’ble Supreme Court in Viraj Impex Pvt. Ltd vs.
25
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
18
Union of India relying on its earlier decision in Union of India vs.
19
G. S. Chatha Rice Mills held that a notification cannot acquire
the force of law prior to its publication in the Official Gazette and
that in the era of e-Gazette, the precise hour and minute of digital
upload is decisive; and that such a notification cannot operate
retrospectively unless authorised by statute.
27. Thus in view of what has been held by Their Lordships,
we have no hesitation in holding that the Notification acquired the
nd
force of law only on 2 April 2026 at 20:52:58 hours, and it can
be validly applied only to the goods dispatched from the country of
export after its publication and not to goods already dispatched
and arrived in India prior to its publication.
28. We may make a useful reference to the decision of the
High Court of Delhi in M. D. Overseas Limited (supra) which holds
that the date of import, for the purpose of application of the
provisions of the FTP and HBP, would be the date of
shipment/dispatch of goods from the supplying country of export.
This date would ordinarily be the date of airway bill issued by the
18 2026 (396) E.L.T. 113 (SC) (para 16, 17, 19)
19 2020 (374) E.L.T. 289 (SC)
26
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
last port from which the goods departed en route to India. M. D.
Overseas Limited (supra) has been approved by the Hon’ble
Supreme Court in G. S. Chatha Rice Mills (supra).
29. Let us now deal with the submission of Mr. Mishra,
learned counsel for the respondent, that the date of filing of bills of
entry is relevant for determining the applicability of the
notification issued under the FTP. In our view, the date of filing
bills of entry or its clearance/out-of-charge post the restriction is
wholly irrelevant and alien to the applicability of a change in the
FTP. In terms of Section 15 of the Customs Act, the date of filing
of bills of entry is relevant for the rate of duty of customs and, in
the present case, the rate of duty is the same prior to and post the
Notification. The contention of Mr. Mishra, learned counsel for the
respondent is that the decision in Enero Jewels Pvt. Ltd. & Anr.
(supra) and M/s. Bright Metal Refiners (supra) are per incuriam
having not considered and followed the ratio of the decisions of
the Hon’ble Supreme Court in Union of India and others vs.
Ganesh Das Bhojraj (supra) and Kiran Spinning Mills (supra). We
are in agreement with Mr. Shah, learned Senior Advocate that the
27
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
aforesaid decisions in Union of India and others vs. Ganesh Das
Bhojraj (supra) and Kiran Spinning Mills (supra) are
distinguishable. The issue before the Hon’ble Supreme Court was
not the one in dispute in the present case, viz. which is the date to
be reckoned for import under the FTP.
30. In Union of India and others vs. Ganesh Das Bhojraj
(supra), the petitioner had imported the goods and filed bill of
th
entry on 5 February 1987 and claimed clearance duty free. Vide
notification issued one day prior to filing of the Bill of Entry, the
Government had imposed 25 per cent duty. The petitioner therein
contended that the said notification though published was not
made available to the public at large and therefore customs duty
cannot be levied. This Court allowed the writ petition and directed
clearance of goods without payment of duty. The Hon’ble Supreme
Court, on a reference, held that the notification came into force on
the date of its publication in the official Gazette and negatived the
contention that the since the notification was not made available
to the public at large it did not come into force. Thus, Union of
India and others vs. Ganesh Das Bhojraj (supra) dealt with a case
28
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
regarding change of rate of duty and not applicability of the rate of
duty under the Customs Act. Under Section 15(1)(a) of the
Customs Act, the relevant date for the rate of customs duty is the
date of filing of the bill of entry. Therefore, the rate of duty will be
as applicable on the date of filing of bill of entry and not the
arrival of the goods in India. Thus, the issue before the Hon’ble
Supreme Court was in the context of Section 15 of the Customs
Act.
31. Let us now look at the facts in Kiran Spinning Mills
(supra). The importer deposited the goods in the bonded
warehouse. Pending clearance of the goods for home consumption,
rd
additional duty of excise was imposed vide ordinance dated 3
October 1978. The Importer contended that the said ordinance
was not promulgated at the time of import into India. The Hon’ble
Supreme Court negatived the contention holding that Section 3(6)
of the Ordinance makes the provisions of the Customs Act
applicable and this would bring into place Section 15 of the
Customs act, which inter alia provides the rate of duty which will
be payable on the date on which the goods are removed from the
29
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
bonded warehouse.
32. It would therefore be clear that for the purpose of
Customs Act, the import would be completed when the goods cross
the customs barriers and not the day on which the goods had
landed in India. On the other hand, for the purpose of reckoning
the date of import for applicability of the provisions of FTP is
specified in paragraph 1.05(b) of the FTP read with paragraph
2.17 read with paragraph 11.11 of HBP. Paragraph 1.5 (b) of FTP
clearly provides that the date of import/export is defined in
paragraph 2.17 of HBP. Bill of Lading or shipping bill are key
documents for deciding the date of import and export respectively.
Having defined the date of import under the FTP, the date of
import under the Customs Act cannot be applied, otherwise the
date of import defined in the Policy shall be redundant and
meaningless. We are of the clear opinion that paragraphs 2 and 3
of the notification have no relevance to the goods imported by the
petitioner as they have admittedly arrived in India before the
Notification came into force. That the Notification is not made
retrospective is admitted by the respondents.
30
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
33. Mr. Mishra, learned counsel for the respondent relied on
th
an Office Memorandum (“OM”) dated 13 May 2026 issued by the
DGFT after the filing of the present writ petition, in which the
Joint Director General of Foreign Trade has, in paragraph 3
thereof, purportedly clarified that “any import consignment not
st
cleared before 1 April 2026 would be governed by the revised
‘Restricted’ policy, irrespective of the date of arrival of goods or
fling of Bills of Entry ….”. We are in agreement with the
submission of Mr. Shah, learned Senior Advocate that the said OM
is not only contrary to the FTP but in the teeth of what has been
held in Enero Jewels Pvt. Ltd. & Anr. (supra) and M/s. Bright
Metal Refiners (supra). The said OM has no statutory force and
cannot override the FTP. The OM is not even subordinate
legislation and no authority of law is pointed out in exercise of
which the said OM is issued. The Hon’ble Supreme Court in CCE,
20
Bolpur vs. Ratan Melting and Wire Industries has held that any
clarification of the Board contrary to law declared by the Hon’ble
Supreme Court and Hon’ble High Courts is not binding. It was
20 2008 (12) S.T.R. 416 (S.C.) (para 6, 7)
31
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
further held that a clarification contrary to statutory provisions has
no existence in law. It is well settled that FTP can be amended by
the Central Government in exercise of powers under Section 5 of
the FTDR Act. The purported clarification by the OM, would
literally amount to amending the FTP, which cannot be issued in
such a manner contrary to law. The purported clarification
amounts to giving retrospective effect to the Notification, which is
beyond the jurisdiction of the issuing authority (Officers of the
DGFT in the present case) as held by the Hon’ble Supreme Court in
21
Director General of Foreign Trade vs. Kanak Exports . In these
circumstances, the OM being a mere executive clarification, cannot
rewrite/override the statutory definition of “date of import”
defined in paragraph 2.17 and paragraph 11.11 of the HBP, and
cannot make the impugned Notification retrospective.
34. We therefore have no hesitation in holding that the
import authorisation cannot be treated as the redressal of the
petitioner’s grievance, in view of the decisions in Enero Jewels Pvt.
Ltd. & Anr. (supra) and M/s. Bright Metal Refiners (supra). The
21 2015 (326) E.L.T. 26 (S.C.) (para 108)
32
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
said authorisation-imposed conditions, which were beyond the
jurisdiction and authority of the DGFT.
35. The Writ Petition therefore deserves to be allowed. The
respondents are directed to release the goods/consignments
th
covered under Bills of Entry Nos.8590663 dated 10 April 2026,
th th
8590666 dated 10 April 2026 and 8735308 dated 17 April 2026
expeditiously.
st
36. It is declared that the notification dated 1 April 2026 is
not applicable to the goods arrived in India before its publication
nd
on 2 April 2026 at 20:46:52 hours (typographical mistake in the
nd
prayer clause which refers to the date of publication as 2 April
nd
2027 instead of 2 April 2026).
37. Further, the writ petition is allowed in terms of prayer
clauses (a), (c) and (d) which read thus :-
“(a) That this Hon’ble Court be pleased to declare
that the Notification No.02/2026-27 dated 01.04.2026 is not
applicable to the goods arrived in India before its publication
on 02.04.2027 at 20:46:52 hours.
(c) That this Hon’ble Court be pleased to issue Writ of
Mandamus or a Writ in the nature of Mandamus or any other
appropriate writs, orders or directions under Article 226 of the
33
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54

6.wp-3274-2026.odt
Bhogale
Constitution of India ordering and directing the Respondents
and their officers, subordinates, servants and agents to
forthwith permit clearance of the studded platinum jewelry
for home consumption covered under Bills of Entry
Nos.8411463 dated 01.04.2026, 8418268 dated 01.04.2026,
8590663 dated 10.04.2026, and 8735308 dated 17.04.2026
(Exhibits “E” to “H”);
(d) That this Hon’ble Court be pleased to issue Writ of
Mandamus or a Writ in the nature of Mandamus or any other
appropriate writs, orders or directions under Article 226 of the
Constitution of India ordering and directing the Respondents
and their officers, subordinates, servants and agents to
forthwith permit the Petitioner to submit the Bill of Entry
No.8590666 dated 10.04.2026 without insisting upon the
Import Authorisation/License.”
38. Interim Application (L) No.22543 of 2026 is also disposed
of.
(SANDESH D. PATIL, J.) (M. S. KARNIK, J.)
34
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 17:21:54
Powered by TCPDF (www.tcpdf.org)