M/S Bright Metal Refiners v. Director General, Directorate General of Foreign Trade & Ors.

vi. The grievance of the petitioner is that the goods are not being cleared by Customs. The Customs authorities at the respective ports have orally communicated to the petitioner that the goods sought to be imported by the petitioner are not being cleared on account of aforesaid notification. vii. Thereafter, the petitioner requested the DGFT to issue appropriate clarification and the Customs Department at the respective ports to allow clearance of its goods, on the ground that the same had been imported prior to the coming into force of Notification No. 02/2026-27 and therefore, the changed policy restriction would not apply to the subject imports, which remains unanswered by the respondents till date. viii. The petitioner, however, received a response from the Office of the Commissioner of Customs (APSC), Mumbai, vide letter dated 16th April, 2026, wherein reference was made to Notification No. 02/2026–27 and it was stated that the goods covered under the Bills of Entry could not be permitted for clearance without a valid import authorization/license. The petitioner was further advised to avail any other permissible remedy as it deems appropriate. ix. The Office of the Commissioner of Customs (APSC), Mumbai, further informed the petitioner that, vide letter dated 15th April, 2026, clarification had been sought from the Central Board of Indirect Taxes and Customs (CBIC), New Delhi, regarding the applicability of the expressions “irrespective of shipment status” and “transitional arrangements”, as is mentioned in Notification No. 02/2026– 27, in respect of the goods in question. However, till date, no clarification has been issued by CBIC in this regard. x. In these circumstances, the petitioner has approached this Court seeking directions for clearance of the subject goods.

3. Amongst others, the contention of Mr. Prakash Shah, learned Senior Counsel for the petitioner is that a notification comes into force only from the date and time of its publication in the official Gazette. As such, the said notification acquired the force of law only on 2nd April, 2026 at 20:52:58 hrs. To strengthen his plea, he has relied on the judgment of the Apex Court in Viraj Impex Pvt. Ltd. vs. Union of India, (2026) 38 Centax 243 (SC).

4. It is further his contention that the present case is squarely covered by the judgment passed by the Gujarat High Court in Enero Jewels Pvt. Ltd. v. Union of India, R/SCA No. 5512/2026, decided on 20th April, 2026, wherein it was held that the aforesaid Notification would come into force held that where the goods had landed prior to the publication of the Notification, the effect of such Notification could not operate retrospectively to such goods, particularly when the Notification came to be published nearly 22 hours after the arrival of the goods therein.

5. It is his submission that the last consignment of the petitioner reached the Indian ports on 02nd April, 2026 at 01:39 AM, which was about 20 hours prior to the date and time when Notification No. 02/2026–27 was published in the Official Gazette.

6. The learned Senior Counsel for the petitioner has provided a tabular chart detailing all his consignments, along with their respective airway bill numbers and time of arrival. The said chart is reproduced hereinbelow:

7. Further, the learned Senior Counsel would urge that paragraphs 2 and 3 of the Notification apply only to goods shipped/dispatched after the imposition of the restriction, as the transitory provisions of paragraph 1.05(b) applies to goods already shipped/dispatched post such restriction. Consequently, the said provisions do not apply to the goods which already arrived in India before imposition of the restriction, as such, goods fall outside the scope of the said Notification.

8. As against above, learned counsel for the respondents would urge that no prayer was made qua the said Notification in the prayer clause. The prayer and the relief sought in the present petition cannot be granted to the petitioner unless and until the legality of the notification is decided.

9. It is submitted that there lies an alternative remedy available to the petitioner under the Foreign Trade Policy, 2023. In terms of paragraph 2.59 of the said Policy, the petitioner is at liberty to approach the Policy Relaxation Committee for grant of exemption, relaxation, or any other appropriate relief in cases involving genuine hardship or adverse impact on trade. In view of the availability of such alternative remedy, this Court ought not to entertain the present petition.

10. Further, an objection as to the territorial jurisdiction of this Court has also been raised by the respondents, stating that the petition has joined multiple causes of action, most of which do not arise in the territorial jurisdiction of this Court.

11. It is their contention that the Notification explicitly excludes the applicability of paragraph 1.05(b) relating to transitional protection, and therefore, the legislative intent is clear and overriding.

12. According to them, though the shipment was dispatched on 30th and 31st March, 2026, and the Bills of Entry were filed on 03rd April, 2026 and 07th April, 2026, the fact remains that the Notification came into effect on 02nd April, 2026 at 20:52:28 IST, and the goods had not been cleared prior to that date. Thus, the import remained incomplete until clearance and, therefore, the subject goods are subject to the restriction.

13. It is claimed that, pursuant to the representation made by Customs (Amritsar) to the DGFT, the DGFT issued an Office Memorandum dated 13th May, 2026, stating that any import consignment not cleared before 1st April, 2026 would be governed by the revised restricted policy, irrespective of the date of arrival of the goods or the date of filing of the Bills of Entry.

14. In rebuttal to the aforesaid contentions of the respondents, the learned Senior Counsel for petitioner has submitted that the date of clearance of the goods is wholly irrelevant and the relevant date for reckoning import is defined, under Paragraph 2.17 of the Foreign Trade Policy, 2023 read with Paragraph 11.11 of the Handbook of Procedures, 2023, as the date of shipment/dispatch of the goods from the supplying country, and not the date of arrival of the goods at an Indian port or their subsequent clearance.

15. In regard to the contention that there exists an alternative remedy, the petitioner submits that the same is misconceived and the said paragraph does not provide for any effective remedy in law. So also, the fact that when the impugned Notification itself has no application to the petitioner’s consignments (the date of import being prior to its coming into force), the question of seeking any authorisation or approaching the Policy Relaxation Committee does not arise.

16. According to the petitioner, it is well settled that rules or regulations, being in the nature of subordinate legislation, if found to be ultra vires, are liable to be disregarded by the Courts when the question of their enforcement arises. The mere absence of a specific relief seeking to strike down or declare such provisions ultra vires cannot preclude the Court from refusing to enforce them. Reliance in this regard has been placed on the judgment of M/S Shree Bhagwati Steel Rolling Mills vs Commnr. Of Central Excise &Anr (2016) 3 SCC 643.

17. We have heard the learned counsel for the parties.

18. Before we begin to proceed and decide the present petition on merits, we may deal with the objection raised by the respondents that there is no specific relief prayed qua the validity of the said notification and the relief sought for cannot be granted unless and until the legality of the notification is decided.

19. As against this objection, reliance was placed by the petitioner on the judgment of the Apex Court in Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise, 2015 (326) E.L.T. 209 (S.C.) to urge that the Courts can ignore the subordinate legislation which are ultra vires when the question of their enforcement arises. Relevant paragraph of the said judgment reads as under:

20. Even otherwise, we are of the view that the nature of the relief sought in the present petition does not require us to adjudicate the validity of the notification, as the case of the petitioner is that the subject goods had already landed prior to the publication of the notification and the notification in question has no application to the facts of the present case. Therefore, if the petitioner succeeds in the said contention, there would be no relevance of examining the validity of the notification. In such an eventuality, we overrule the said objection.

21. Now, moving to the principal question that falls for consideration before this Court that whether the notification published in the e-official Gazette on 2nd April, 2026 with a time stamp of 20:52:28 hrs can be made applicable to the goods that were already booked vide Airway Bills before the notification came to be published.

22. To answer the aforesaid question, it would be pertinent to consider the judicial precedents that have a bearing on the issue.

23. We may begin by noting the decision in Viraj Impex Pvt. Ltd. (supra), wherein the Apex Court held that the legal position has been crystallised that a notification or any other form of subordinate legislation becomes enforceable only when the same is published in the manner reasonably calculated to bring it to the notice of all the persons who may be effected by it. It was observed that the requirement of publication in the gazette is not an empty formality. The relevant portion of the said judgment reads thus:-

24. As regards the point of time at which a notification takes effect after its publication, this issue was examined by the Apex Court in Union of India v. G.S. Chatha Rice Mills 2020 (374) E.L.T. 289 (S.C.), wherein the Court emphasized that the exact date and time of publication assume significance, especially having regard to the manner in which the gazettes are being published, has shifted from analog to digital. The same reads as under:

25. The effect of giving a notification retrospective effect was also examined by the Apex Court in the case of Director General of Foreign Trade vs Kanak Exports 2015 (326) ELT 26, wherein it was held as under:

26. The effect of the decisions in Viraj Impex (supra) and G.S Chatha Rice Mills (supra) was examined by a Division Bench of Gujarat High Court in Enero jewels Pvt Ltd (supra). The effect of the very same notification as in the present petition was before it. The Division Bench held as follows:

27. In view of the aforementioned judgments of the Apex Court, we find ourselves in agreement with the view taken by the Gujarat High Court. The factual position in the present case does not differ from what was before the Gujarat High Court. In the present case the imported goods were dispatched from the country of export on 31st March, 2026 and 01st April, 2026 respectively, and arrived at the Indian ports of import on 01st April, 2026 and 02nd April, 2026, the tabular chart of which has been reproduced herein above. The last consignment imported by the Petitioner arrived at the Indian port of import on 02nd April, 2026 at 01:39 AM, which is prior to the time when the Notification was published. The said fact has not been disputed by the respondents. Also, admittedly before the said notification the goods sought to be imported were under the “free” category.

28. Thus, in such an eventuality, the goods in question were imported prior to the notification coming into force and are liable to be cleared in accordance with the conditions and legal position that prevailed before the issuance of the said notification.

29. In view of the aforesaid, the present petition is allowed in terms of prayer clause ‘a’.

30. We direct that the goods of the petitioner be processed for release immediately in terms of above observations.

31. Pending application, if any, also stands disposed of.

32. A copy of judgment be uploaded on the website of this Court.

NITIN WASUDEO SAMBRE (JUDGE)

AJAY DIGPAUL (JUDGE) JUNE 04, 2026/ay/sk