DGFT Import Curbs Cannot Apply to Goods Arrived Before Gazette Publication: Gujarat HC

Enero Jewels Pvt. Ltd. & Anr. Vs Union of India & Ors. (Gujarat High Court)

Summary: The Gujarat High Court examined whether DGFT Notification No. 02/2026-27 dated 1 April 2026 could restrict clearance of 1,458 pieces of platinum jewellery studded with freshwater pearls imported by Enero Jewels Pvt. Ltd. from Thailand. The consignment, valued at USD 9,637,100, arrived at Ahmedabad Airport at 00:15 hours on 2 April 2026, before the notification was digitally signed and published at 22:46:52 hours that day. Customs declined clearance without import authorisation despite the goods having arrived earlier.

The petitioners relied on Viraj Impex Pvt. Ltd. Vs Union of India and Union of India Vs G.S. Chatha Rice Mills to contend that delegated legislation takes effect only after prescribed publication and cannot retrospectively burden earlier imports. The respondents argued that the notification immediately restricted imports irrespective of prior contracts, payments or shipment status, and expressly excluded transitional arrangements under paragraph 1.05(b) of the Foreign Trade Policy, 2023. The petitioners did not press their challenge to the notification’s validity.

The High Court applied Sections 3(2) and 5 of the Foreign Trade (Development and Regulation) Act, 1992, and held that official Gazette publication is a necessary condition for enforceability. It emphasised the significance of the precise time of electronic publication. Because the consignment arrived approximately 22 hours before the notification became effective, the new restriction could not retrospectively govern its clearance.

Partly allowing the petition, the Court directed the Customs authorities to assess, clear and grant out-of-charge to the consignment covered by IGM No. 3020909 dated 2 April 2026 without insisting on an import licence under the notification, subject to other official procedures. The Court did not invalidate the notification generally.

Cases Discussed

1. Viraj Impex Pvt. Ltd. Vs Union of India and Another, (2026) SCC OnLine SC 101 — Gazette publication and delegated legislation.
2. Union of India Vs G.S. Chatha Rice Mills, 2020 (374) E.L.T. 289 (SC) — timing of electronic publication.
3. Param Industries Ltd. Vs Union of India, 2002 (150) E.L.T. 3 (Karnataka High Court) — commencement of customs notifications.
4. Union of India Vs Param Industries Limited, (2016) 16 SCC 692; 2015 (321) E.L.T. 192 (SC) — Supreme Court affirmation discussed in quoted precedent.

FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT

1. Looking to the urgency in the matter, the same is taken up for final hearing today. Learned advocate for the petitioners is permitted to delete respondent no.2- The Director General of Foreign Trade (DGFT). Registry is permitted to effect the said amendment.

2. Learned Senior Standing Counsel Ms.Hetal Patel waives service of notice of rule on behalf of the respondent nos.4 and 5.

3. The following prayers are made in the present writ petition :

“9(A) Issue a writ of Certiorari, or any other appropriate writ, order, or directions under Article 226 of the Constitution of India quashing and setting aside Paragraphs 2 and 3 of DGFT Notification No. 02/2026-27 dated 01.04.2026 (Annexure- A), to the extent it arbitrarily excludes the benefit of transitional arrangements under Para 1.05(b) of the FTP 2023 and applies retrospectively to goods already in transit;

(B) Issue a writ of Mandamus, or any other appropriate writ, order, or direction, declaring that the petitioner is entitled to the benefit of transitional arrangements under Para 1.05(b) of the FTP 2023 read with Para 11.11 of the HBP 2023 for the consignment imported vide AWB No. 232-1693-3114 dated 31.03.2026;

C. Issue a writ of Mandamus directing Respondent Nos. 4 and 5 to immediately assess, clear, and grant out-of-charge to the petitioner’s consignment covered under IGM No. 3020909 dated 02.04.2026, without insisting upon any import authorization/license under the impugned Notification No. 2/2026-2024 dated 01.04.2026 (Annexure-A);

D. Pending the hearing and final disposal of this petition, grant ad-interim ex-parte relief directing respondent no.4 and 5 to provisionally release the subject goods to the petitioner upon execution of the suitable bond/undertaking;”

4. At the outset, learned Senior Advocate Mr. Tushar Hemani upon instructions of learned advocate Mr. Dhaval Shah appearing for the petitioners, has submitted that the petitioners would not press the prayer clause 9(A).

FACTS OF THE CASE

5. The petitioner no.1 is a private limited company engaged in the business of import, export and trading of precious metals, stones and Jewellery, whereas, petitioner no.2 is the Director and shareholder of petitioner no.1. On 31.03.2026, the petitioner executed a commercial transaction for the import of 1,458 pieces of “Platinum Jewellery Studded with Fresh Water Pearl” (CTH 7113 19 22) from M/s Amonsak Anyamanee Co. Ltd, Bangkok, Thailand. The said goods were imported under the ASEAN- India Free Trade Area (AIFTA) agreement. The supplier issued the Commercial Invoice No. AA106 dated 31.03.2026 for a CIF value of USD 9,637,100.00. The goods strictly fulfilled the “RVC + CTSH” originating criteria under Rule 4 of the AIFTA Agreement, and a Preferential Tariff Certificate of Origin (Form AI No. AI2026-0021714) was duly issued.

5.1 On 31.03.2026, the goods were handed over to the carrier (Malaysia Airlines) at Suvarnabhumi International Airport (BKK). The airline accepted the goods at 18:45 Hrs and issued Airway Bill (AWB) No. 232-1693-3114 dated 31.03.2026. The flight (MH 797) departed Bangkok at 00:03 Hrs on 01.04.2026. The subject goods arrived at Ahmedabad Airport on 02.04.2026 at 00:15 Hrs, and IGM No. 3020909 was filed. On 02.04.2026, the petitioner submitted a formal request letter to respondent no.5, seeking immediate clearance on the ground that the goods were already in transit prior to the issuance of the impugned Notification. However, the permission was denied in view of the Notification dated 01.04.2026.

SUBMISSIONS OF THE PETITIONER

6. Learned Senior Advocate Mr. Hemani has submitted that the goods arrived at Ahmedabad Airport via flight No. MH208 on 02.04.2026 at 00:15 Hrs and the petitioners requested through a letter for clearance of goods without import license on 02.04.2026. However, the respondent authorities did not allowed to do so, in view of the Notification No.02/2026-27 dated 01.04.2026. It is contended that the said Notification will not apply to the goods of the petitioner’s which had already been arrived on 02.04.2026 at 00:15 Hrs. since, it was published/ promulgated on 02.04.2026 at 22:46:52 Hrs.

6.1 In support of his submissions, learned Senior Advocate Mr.Hemani has placed reliance on the Judgments of the Supreme Court in the case of Viraj Impex Pvt. Ltd. Vs. Union of India and Another (2026) SCC Online SC 101. Reliance is also placed on the Judgment of three Hon’ble Judges of Supreme Court in the case of  Union of India Vs. G.S Chatha Rice  Mills, 2020(374) E.L.T.289 (SC) and it is contended that the Supreme Court has also considered the effect of digitally signing and publishing the Notification thereof.

6.2 Learned Senior Advocate Mr.Hemani has also placed reliance on Para 1.05(b) of the Foreign Trade Policy 2023, which grants the benefits of transitional arrangements, which has been restricted in view of the Notification. However, it is submitted that the petitioner would reserve its rights to challenge the said Notification at an appropriate time, if required as the Notification runs contrary to the benevolent objects of the Foreign Trade Policy more particularly, as per paragraph No.1.05(b). Thus, it is submitted that as per the provisions of Section 3(2) read with Section 5 of of The Foreign Trade (Development & Regulation) Act, 1992, the Central Government has to publish the Notification in the Official Gazette of India, which makes provisions for prohibiting, restricting or otherwise regulating the import or export of goods or services or technology. In the present case, since the Notification is subsequent to the arrival of goods at Ahmedabad Airport, therefore, the same will not apply to the goods.

SUBMISSIONS OF THE RESPONDENTS

7. Per Contra, learned Senior Standing Counsel Ms. Hetal Patel opposing the aforesaid submissions, while referring to the provisions of Notification dated 02.04.2026, more particularly, paragraph no. 2 and 4, has contended that the effect of the Notification mentions that the same would come into force immediately and hence irrespective of any prior contract, irrevocable letter of credit, advance payment, shipment status, or any other commitment whatsoever. Hence, the authorities are justified in restraining the goods unless the petitioners complies with the conditions of the Notification dated 02.04.2026. It is thus, submitted that the provisions of paragraph No.1.05(b) of th Foreign Trade Policy, 2023will not come to rescue the petitioners, in light of the Notification dated 02.04.2026. Learned Senior Standing Counsel Mr.Shah appearing for respondent nos. 1 and 2 has adopted the aforesaid submissions advanced on behalf of respondent nos.4 and 5.

ANALYSIS & OPINION

8. We have heard the learned advocates appearing for the respective parties, at length.

9. The sequence of events as mentioned in the writ petition is not in dispute. To demonstrate the sequence of events establishing the petitioner’s vested rights, a tabulated chronology provided as under:

10. Therefore, the goods of the petitioner which have been arrived at Ahmedabad Airport on 02.04.2026 at 00:15 Hrs and thereafter on 02.04.2026, itself the petitioner requested the clearance of the goods, however the same has been denied the clearance by the  about producing of import authorisation.

10.1 At this stage, we mention that the Notification No. 02/2026-27 was issued on 01.04.2026, amending the Import Policy of items covered under CTH 7113 under Chapter 71 of the ITC(HS) 2022, Schedule- I (Import Policy). This has been introduced in exercise of the powers conferred under Section 3 read with Section 5 of The Foreign Trade (Development & Regulation) Act, 1992, read with paragraph no. 1.02 and 2.01 of the Foreign Trade Policy 2023. The said Notification dated 01.04.2026 specifically mentions that the same is required to be published in the Gazette of India Extraordinary Part-II – Section 3(ii). Accordingly, the Ministry of Commerce & Industry and Department of Commerce (Director General of Foreign Trade), published the Notification dated 02.04.2026. It is also not in dispute that the Notification was published and promulgated after the same was digitally signed by the DGFT and Ex-officio Addl. Secretary on 02.04.2026 at 22:46:52 Hrs. Unquestionably, the Notification is promulgated and published pursuant to the digital signature of competent authority on 02.04.2026 at 22:46:52 Hrs i.e. after the arrival of goods on 02.04.2026 at 00:15 Hrs. Therefore, there is almost a gap of more than 22 Hrs before the Notification comes into effect.

10.2 At this stage, it would be apposite to refer to the Judgment of the Supreme Court in the case ofViraj Impex Pvt. Ltd (supra) wherein, the Supreme Court has dealt with the issue of effect of publication of the Notification in the official Gazette of India. The relevant paragraphs are as under:

“16. We have given our thoughtful consideration to the rival submissions and have taken note of the relevant statutory provisions. Law, to bind, must first exist. And to exist, it must be made known in the manner ordained by the Legislature. Delegated legislation, unlike plenary legislation enacted by the parliament, is framed in the executive chambers without open legislative debate. The requirement of publication in the gazette, therefore, serves a dual constitutional purpose, i.e. (a) it ensures accessibility and notice to those governed by the law, and (b) it ensures accountability and solemnity in the exercise of delegated legislative power. The requirement of publication in the gazette, is therefore not an empty formality. It is an act by which an executive decision is transformed into law. It is precisely for this reason that courts have consistently insisted that strict compliance with the publication requirements is a condition precedent for the enforceability of delegated legislation.

17. The legal position in this regard stands crystallised by a long line of decisions of this court. The true test of the effective commencement of a statutory order or subordinate legislation is whether it has been published in a manner reasonably calculated to bring it to the notice of all persons who may be affected by it, namely, through a mode which is ordinarily and generally accepted for that purpose. The aforesaid principle was referred to with approval by this court and it was held that natural justice requires that before a law can become operative, it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with exercise of due and reasonable diligence.

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19. In the backdrop of aforesaid well-settled legal position, we may advert to the facts of the case in hand. The parent statute, namely the Act expressly mandates that any order regulating imports or exports shall be made by an order published in the Official Gazette. The Legislature in its wisdom, has not left the mode of promulgation to executive discretion. Delegated legislation is an instrument to give effect to the policy and purpose of the parent statute. It, therefore, has to be construed in the manner that advances the object of the Act, namely to regulate foreign trade through transparent, predictable and legally certain measures. Tested on the aforesaid legal principles, coupled with requirement of publication in the Official Gazette, contained in parent statute, it is manifest that the notification could not have acquired the force of law prior to its publication in the Official Gazette on February 11, 2016. Indeed, the notification itself acknowledges its incompleteness by declaring that it is “to be published in the Gazette of India”. The acknowledgment is a confession that, until such publication, the notification had not crossed the threshold from intention to obligation. Once the Legislature has prescribed the specified mode of promulgation, the executive cannot introduce an alternative mode and attribute legal consequences to it. A notification cannot operate in a fragmented manner. In law, it is born only upon publication in the Official Gazette, and it is from that date alone that rights may be curtailed or obligations imposed. To hold otherwise, would permit unpublished delegated legislation to burden citizens, a proposition expressly rejected by this court in long line of decisions referred to supra.”

10.3 As per the provision of Section 3(2) of The Foreign Trade (Development And Regulation) Act, 1992, the Central Government by the order published in the official Gazette can make a provision for prohibiting restricting or otherwise regulating the import or export of the goods. The provision of Section 5 of the Act refers that the Foreign Trade Policy may be formulated from time to time by a Notification published in the official Gazette of India.

11. Thus, as held by the Supreme Court that once the legislature has prescribed the specific mode of promulgation, an Executive cannot introduce an alternative mode and attribute legal consequences. It is no more, res integra, the test of commencement of a statutory order or subordinate legislation is whether it has been published in a manner reasonably calculated to bring it to the notice of all persons who have been affected by it namely, through a mode which is ordinarily and generally accepted for that purpose. The natural justice requires a law which can become operative, it must be promulgated or published or broadcasted in some recognizable way so that all the stakeholders may know what it is or at the very least there must be any special rule or regulation or customary channel by or through which such knowledge can be acquired with exercise of due and reasonable diligence.

12. We may also incorporate the decision of the Supreme Court made in the case of S Chatha Rice Mills (supra) wherein the Supreme Court has considered the effect of digital signatures for publishing the Gazette Notification. The same reads thus:-

“58. With the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. Notification No. 5/2019, which is akin to the exercise of delegated legislative power under the emergency power to notify and revise tariff duty under Section 8A of the Customs Tariff Act, 1975, cannot operate retrospectively unless authorized by statute. In the era of the electronic publication of gazette notifications and electronic filing of bills of entry, the revised rate of import duty under the Notification No. 5/2019 applies to bills of entry presented for home consumption after the notification was uploaded in the e-Gazette at 20:46:58 hours on 16 February, 2019

59. The impugned High Court judgment has relied on the decision of the Karnataka High Court in Param Industries Lid. v. Union of India 2002 (150) E.L.T 3 (Kar.) which was confirmed by the decision of this Court in Union of India v. Param Industries Limited [(2016) 16 SCC 692-2015(321) E.L.T 192 (SC) 2017(51) S.T.R (SC) [“Param Industries”] In that case, the respondents were in the business of importing and exporting edible oil. The respondents imported RBD Palmolein which was cleared after payment of import duty of 85 per cent of its value. The import duty was paid pursuant to a notification which was in existence as on that date. A major quantity of the goods had been removed from the warehouse after the payment of duty. The importer was, however, informed that by a notification dated 3 August, 2001 (incidentally this was also the date the bill of entry was filed and goods were cleared) the tariff value had been raised to USD 372 per metric tonne and that the importer was liable to pay the difference in the tariff which was paid on the basis of the earlier notification. The respondent contested the demand on the ground that the notification raising the import duty had not come into effect on 3 August, 2001. The Division Bench of the High Court held that the notification was not published on 3 August, 2001 and must have been Gazetted only after the following weekend namely on 6 August, 2001 or thereafter; the Gazette issued containing notification was offered for sale only starting from 6 August, 2001; and that the mere publication of the notification on the website and the issuance of a letter to the Assistant Controller Government of India (Press) was not sufficient for the notification to be operational and enforceable on 3 August, 2001. This Court in appeal observed that according to the High Court two conditions were mandatory for the notification to be brought into force:

a. Due publication in the official Gazette, and

b. Offering the notification for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board. New Delhi.

This Court noted that, in their case, the second condition was not satisfied as the notification was offered for sale only on 6 August, 2001 as it was published in the late evening hours of 3 August, 2001 and the next two days were holidays.”

13. The Supreme Court has also dealt with the retrospective effect of issuance of Notification and it was held that a Notification which is published after putting up digital signature cannot operate retrospectively, unless the same has been authorized by the statute and it becomes effective and enforceable only upon its publication in the e-Gazette on a particular hour. In the present case, the Notification as mentioned hereinabove was published on 02.04.2026 at 22:46:52 Hrs, after the same was digitally signed.

14. It is pertinent to refer to the conditions of the Notification dated 02.04.2026, which are as under:-

“2. Notwithstanding anything contained in para 1.05(b) of the  Foreign Trade Policy, 2023 (FTP) or any other provision, the benefit of transitional arrangements shall not apply to the restrictions imposed under this Notification.

3. The import policy as amended above shall come into force with immediate effect and shall apply irrespective of any prior contract, irrevocable letter of credit, advance payment, or shipment status.

Effect of the Notification :  The Import Policy and Policy Condition of items as mentioned above covered under Chapter 71 of ITC HS, 2022, Schedule-I (Import Policy) is reserved as mentioned above with immediate effect. These restrictions shall apply notwithstanding Pra 1.05(b) of FTP 2023 and shall operate irrespective of any prior contract, irrevocable letter of credit, advance payment, shipment status, or any other commitment whatsoever. Accordingly, the benefit of transitional arrangements shall not be available.”

15. Hence, in our considered opinion, since the intention of the Notification was to come into force with immediate effect which in fact would be when the same has been digitally signed at 22:46:52 Hrs on 02.04.2026. Thus, the Notification came into effect after the goods already landed at the Ahmedabad Airport at 00:15 Hrs on 02.04.2026. Hence, the effect of the Notification cannot travel retrospectively to such goods, more particularly, when it is published / promulgated nearly 22 Hrs after the arrival of the goods. Therefore, the respondent nos. 4 and 5 fall in error in applying the Notification issued on 02.04.2026 to the goods of the petitioner.

Accordingly, the writ petition partly succeeds. The respondent nos. 4 & 5 are directed to immediately assess, clear and grant out-of-charge to the petitioner’s consignment covered under IGM No. 3020909 dated 02.04.2026, without insisting upon any import authorization / license under the impugned Notification No.2/2026-27 dated 01.04.2026 subject to fulfillment of other official procedure. Rule is made absolute to the aforesaid extent.