dmt 1 wp5483-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5483 OF 2011 M/s. Ace International. .. Petitioner. versus Union of India & Ors. .. Respondents. Mr. Madhur R. Baya with Mr. Monish Panda and Mr. Sushanth Murthy for the Petitioner. Mr. Riyaz Chagla with Mr. K.R. Chaudhari for Respondent Nos. 1 to 3. Mr. Pradeep S. Jetly for Respondent No. 4. CORAM : DR.D.Y.CHANDRACHUD & A. A. SAYED, JJ. 18 October 2011. P.C. : dmt 2 wp5483-11 The Petitioner has challenged in these proceedings notifications dated 18 February 2011, 24 February 2011 and 24 March 2011 issued by the Government of India in the Ministry of Commerce and Industry. By the Notification dated 18 February 2011 the Union Government prohibited the export of milk powders (including skimmed milk powder, whole milk powder, dairy whitener and infant milk foods) amongst other products. This was followed by a notification dated 24 February 2011 which provided that the transitional arrangements under para 1.5 of the Foreign Trade Policy, 2009-14 shall not be applicable on export of products which are prohibited by the earlier notification. On 24 March 2011 the Union Government issued a further notification stating that export assignments which were handed over for Customs examination and export on or before 18 February 2011 would be allowed for export. 2. The Petitioner had challenged the notifications dated 18 February 2011 and 24 February 2011 before the Delhi High Court. The Petition was unconditionally withdrawn on 9 May 2011. The Commissioner of Customs (Exports) passed an order dated 30 May 2011 of confiscation under Section 113(a) of the Customs Act, 1962 dmt 3 wp5483-11 but allowed redemption of goods on payment of a redemption fine of Rs. 1 lac in lieu of confiscation. A personal penalty has been imposed of Rs. 3 lacs. 3. The Petitioner cannot be heard to challenge the notifications dated 18 February 2011 and 24 February 2011, having made a challenge before the Delhi High Court and having unconditionally withdrawn the Writ Petition on 9 May 2011. To permit the Petitioner to raise a challenge to the same notifications would amount to encourage forum shopping. This cannot be countenanced. The Petition is an abuse of the process of the Court. Though interim orders of the Delhi High Court are annexed to this Petition, the final order was not annexed. The order was shown to the Court only when we called upon Counsel to do so. The conduct of the Petitioner is not fair and candid with the Court. The subsequent notification dated 24 March 2011 was consequential in so far as it granted the benefit of transitional arrangements to consignments which were handed over to the Customs Authorities for examination and export on or before 18 February 2011. Besides, the Petitioner had an adequate opportunity to amend the petition dmt 4 wp5483-11 before the Delhi High Court to challenge that notification as well. The order passed by the Commissioner of Customs is an appealable order. For these reasons we do not deem it appropriate and proper to entertain this Petition under Article 226 of the Constitution. However, we leave it open to the Petitioner to avail of the remedy of appeal before the Tribunal. 4. The learned Counsel appearing on behalf of the Petitioner submits that the cargo in respect of which a redemption fine has been imposed may be permitted to be cleared, being of a perishable nature. Learned Counsel for the Revenue states that if such an application is made before the Commissioner, necessary orders would be passed within two weeks. The statement is accepted. 5. The Petition is dismissed. No order as to costs. (Dr. D.Y. Chandrachud, J.) (A. A. Sayed, J.) dmt 5 wp5483-11