M.D. Overseas Ltd. v. Union of India
In the High Court of Delhi
WP(C) 7838, 7839, 8204, 8205, 8667/2017
Before Chief Justice D.N. Patel and Justice C. Hari Shankar
Decided on October 15, 2019

Relevancy of the Case: Date of applicability of a notification published in the Electronic Gazette

Statutes and Provisions Involved

• The Customs Act, 1962 (Section 46(3), 111(d))
• The Foreign Trade (Development and Regulation) Act, 1992 (Section 3, 5)
• The Information Technology Act, 2000 (Section 8)

Relevant Facts of the Case

• The Central Government notified the Foreign Trade Policy (FTP) for 2015-20 on April 01, 2015. Consequently on the same day, the Government issued a Handbook detailing the procedure for implementing this policy.
• The petitioners are in the business of importing gold coins from foreign suppliers in South Korea. For instance, they imported gold coins and the dates on all these invoices were August 24 and 25, 2017. Accordingly, Cathay Pacific Airways Ltd dispatched the gold coins under the cover of airway bills.
• Up to August 25, 2017, gold coins were freely importable as per the existing rules and guidelines. On this day itself, the Directorate General of Foreign Trade (DGFT) issued two notifications restricting the import of gold coins. However, these notifications were published in the Official Gazette on August 28, 2017.

Prominent Arguments by the Advocates

• The petitioner’s counsel contended that their imported goods will be out of the scope of these notifications as they left the country of origin on August 25. This was before the notifications came into effect. The date of publication for these notifications is August 28. They further submitted electronic copies of the Gazette containing a digital signature. The date on the digital signature reads as August 28, 2017.
• On the other hand, the respondent’s counsel denied this claim. Also, they maintained the stand that the notifications were uploaded on August 25, 2017.

Opinion of the Bench

• The date of uploading the notification is not significant. Moreover, the date of publication of notification is the date from which it will be applicable.
• In addition, considering the timestamp in digital signature in the notifications, they were published in the electronic gazette on or after 10:47 PM on August 25, 2017.
• The petitioner’s submission on the non-applicability of these notifications on their imports commends acceptance and is on merits.

Final Decision

• Hence, the court allowed the writ petitions.