Can new import restrictions apply to goods already shipped to India? Bombay High Court examines relevant date of import under Foreign Trade Policy

Bombay High Court: In a petition challenging communications concerning refusal to clear imported studded platinum jewellery following a change in import policy from “Free” to “Restricted”, where the goods had arrived in India before publication of the notification but the Bills of Entry were filed thereafter, the Division Bench of M.S. Karnik* and Sandesh D. Patil, JJ., held that the notification “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” and directed the authorities to release the consignments expeditiously.

Background

Heimerle Refinery Private Limited filed the present writ petition under Article 226 of the Constitution, challenging communications dated 15 April 2026, and 16 April 2026 issued by the Customs Authorities concerning clearance of imported studded platinum jewellery. The dispute arose following the Directorate General of Foreign Trade’s Notification No. 02/2026-27 dated 1 April 2026¹, which amended the import policy of goods under CTH² 7113 of Chapter 71³ of ITC (HS)⁴ 2022, Schedule I to the Foreign Trade Policy (FTP) from “Free” to “Restricted”.

The petitioner had imported the jewellery under 5 Airway Bills dated 30 March 2026 and 31 March 2026. The goods arrived in India on 1 April 2026 at 00:42 hours and on 2 April 2026 at 01:39 hours, before publication of the notification. However, the goods were sought to be released on a later date, when the Customs Authorities refused clearance on the ground that the goods were restricted under the amended import policy.

By interim order dated 5 May 2026, the High Court permitted release of the 2 consignments covered by Bills of Entry dated 1 April 2026, upon furnishing ITC Bonds. The Court also directed provisional release of 2 other consignments, covered by Bills of Entry dated 10 April 2026 and 17 April 2026, subject to furnishing a bank guarantee for 50 per cent of their total value and an ITC Bond for the remaining 50 per cent. The first 2 consignments were subsequently cleared for home consumption upon acceptance of the bonds. However, the dispute in the writ petition remained in respect of 3 consignments covered by 2 Bills of Entry dated 10 April 2026 and 1 of 17 April 2026, including 1 for which no order had been passed pursuant to the interim directions.

In respect of these three consignments, the petitioner approached the Supreme Court by filing a special leave petition. By interim order dated 29 May 2026, the Supreme Court permitted the petitioner to apply for import authorisation in terms of the Office Memorandum dated 13 May 2026 and directed the competent authority to consider and dispose of the application.

The authorities subsequently issued import authorisations dated 9 July 2026. By order dated 17 August 2026, the Supreme Court disposed of the special leave petition, clarifying that the High Court would decide the writ petition on its own merits, uninfluenced by the subsequent observations or developments.

Issues

1. What is the relevant date of import for the purpose of the restriction imposed under the FTP formulated under Section 5, Foreign Trade (Development and Regulation) Act, 1992?

2. Whether the restriction imposed on goods under ITC (HS) 7113 by the notification published in the e-Official Gazette on 2 April 2026 applied to goods which had arrived in India before publication of the notification but for which Bills of Entry were filed after publication?

Analysis and Findings

Relevant date of import under the Foreign Trade Policy

The Court examined Para 1.05(b) of the FTP, which provides that the importability or exportability of an item is governed by the policy applicable on the date of import or export. The provision refers to Para 2.17 of the Handbook of Procedures, 2023 (HBP) for determining that date and identifies the Bill of Lading and Shipping Bill as the key documents.

Para 2.17(a) of the HBP provides that the date of reckoning of import is determined with reference to the date of shipment or dispatch of goods from the supplying country, and not the date of arrival of the goods at an Indian port. Para 11.11 of the HBP further provides that, for imports by air, the date of shipment is 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.

The Court observed that the Airway Bills indicated that the date of import was prior to the change in the policy from “Free” to “Restricted”. The Court held that, once the date of import had been defined under the FTP, the date of import under the Customs Act, 1962 could not be applied to determine the applicability of the restriction under the FTP.

Publication of the Notification and its applicability to the imported goods

The Court referred to Viraj Impex (P) Ltd. v. Union of India, 2026 SCC OnLine SC 101, which relied on Union of India v. G.S. Chatha Rice Mills, (2021) 2 SCC 209. These decisions recognised that a notification cannot acquire the force of law before its publication in the Official Gazette and that, in the era of the e-Gazette, the precise hour and minute of digital publication are decisive. A notification cannot operate retrospectively unless authorised by statute.

Applying these principles, the Court held that the notification acquired the force of law only upon its publication on 2 April 2026. It could be applied to goods dispatched from the country of export after publication, but not to goods that had already been dispatched and arrived in India before publication. The Court held that “the Notification acquired the force of law only on 2nd 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”.

The Court also considered the decisions of the Gujarat High Court in Enero Jewels (P) Ltd. v. Union of India, (2026) 168 GSTR 82, and the Delhi High Court in Bright Metal Refiners v. Director General, (2026) 168 GSTR 93. Those decisions concerned goods that had arrived in India before publication of the same notification, although the Bills of Entry had been filed after publication. The goods in those cases had been permitted to be cleared, and the decisions had attained finality and been acted upon.

The Court held that the issue was squarely covered by those decisions and noted:

“It is a settled principle of taxation jurisprudence that the Revenue is bound to maintain consistency in applying the law to similarly situated assesses.”

Distinction between the Foreign Trade Policy and the Customs Act

The Court separately considered the decisions in Union of India v. Ganesh Das Bhojraj, (2000) 9 SCC 461, and Kiran Spg. Mills v. Collector of Customs, (2000) 10 SCC 228.

In Ganesh Das Bhojraj, the Supreme Court had considered when a notification imposing customs duty acquired force, in the context of a claim for clearance without payment of duty. The Court in the present case explained that the decision dealt with the date of publication of a notification and the rate of customs duty under the Customs Act.

In Kiran Spg. Mills, the Supreme Court had considered the applicability of an additional duty imposed while goods were lying in a bonded warehouse pending clearance for home consumption. The decision concerned the rate of duty payable under the Customs Act when the goods were removed from the bonded warehouse.

The Court distinguished these decisions because the question in the present case concerned the date of import for the purpose of applying the FTP, rather than the date relevant for determining the rate of customs duty. Section 15, Customs Act governs the date relevant to the rate of duty, whereas Para 1.05(b) of the FTP, read with Paras 2.17 and 11.11 of the HBP, determines the date of import for the purposes of the FTP.

The Court held that the date of filing of the Bills of Entry, or clearance or an out-of-charge order issued after the restriction, was not relevant to determining the applicability of the change in the FTP. The Court stated that 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”.

The Court noted that the petitioner was not claiming the transitional benefit under paragraph 1.05(b), which applies to goods not arrived before the change in the FTP, and held that paragraphs 2 and 3 of the Notification, which exclude that benefit, had no relevance to goods that had admittedly arrived in India before the Notification came into force, the respondents having admitted that the notification was not made retrospective.

Office Memorandum dated 13 May 2026

The Court considered the Office Memorandum dated 13 May 2026 issued by the Directorate General of Foreign Trade (DGFT) after the writ petition had been filed. The Office Memorandum purported to clarify that import consignments not cleared before 1 April 2026 would be governed by the revised “Restricted” policy, irrespective of the date of arrival of the goods or filing of the Bills of Entry.

The Court held that the Office Memorandum was contrary to the FTP and the decisions in Enero Jewels and Bright Metal Refiners. It found that the Office Memorandum had no statutory force, was not subordinate legislation, and could not override the FTP. The Court relied on CCE v. Ratan Melting & Wire Industries, (2008) 13 SCC 1, which held that a clarification contrary to law declared by the Supreme Court or High Courts is not binding and that a clarification contrary to statutory provisions has no existence in law.

The Court further held that the Office Memorandum purported to amend the FTP and give retrospective effect to the notification, which was beyond the jurisdiction of the officers who issued it. Referring to DGFT v. Kanak Exports, (2016) 2 SCC 226, the Court concluded that the Office Memorandum, being a mere executive clarification, could not rewrite or override the statutory definition of the date of import or make the notification retrospective.

The Court also held that the import authorisations issued pursuant to the Office Memorandum could not be treated as redressal of the petitioner’s grievance, as the conditions imposed through those authorisations were beyond the jurisdiction and authority of the DGFT.

Decision

The Bombay High Court allowed the writ petition and directed the respondents to release the consignments covered by Bills of Entry dated 10 April 2026 and 17 April 2026 expeditiously.

The Court declared that Notification No. 02/2026-27 dated 1 April 2026 was not applicable to goods that had arrived in India before its publication on 2 April 2026. It further permitted the petitioner to submit the Bill of Entry dated 10 April 2026 without insisting upon an import authorisation or licence.

Accordingly, the writ petition was allowed.

[Heimerle Refinery (P) Ltd. v. Union of India, Writ Petition No. 3274 of 2026, decided on 19-10-2026]

*Judgment authored by Justice M. S. Karnik.

Advocates who appeared in this case:

For the petitioner: Senior Advocate Prakash Shah, a/w Jas Sanghavi, Linzy Sharan and Advocates i/b. PDS Legal

For the respondents: Maya Majumdar Abhishek R. Mishra, Advocates for Respondent 1 to 4; Jitendra B. Mishra and Ashutosh Misra, Advocates for Respondents 5 and 6 — UOI/DGFT