Notification Changing Import Policy From 'Free' To 'Restricted' Operative Only From Exact Time Of Publication In E-Gazette: Delhi High Court

"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," Delhi High Court has ruled that a notification issued by the Directorate General of Foreign Trade (DGFT) changing import policy from ‘Free’ to ‘Restricted’ becomes enforceable only from the exact date and time it is digitally signed and published in the e-Official Gazette.

A Division Bench of Justice Nitin Wasudeo Sambre and Justice Ajay Digpaul, in its judgment, observed that such subordinate legislation cannot operate retrospectively to affect goods that arrived at Indian ports prior to the time of publication.

The petitioner, M/S Bright Metal Refiners, imported Platinum Alloy Jewellery studded with rubies via Airway Bills dated March 30 and 31, 2026. While the consignments arrived at Indian airports on April 1 and the early hours of April 2, 2026, the DGFT issued Notification No. 02/2026-27 on April 1, 2026, restricting such imports. This notification was digitally published in the e-Gazette only at 20:52:28 hrs on April 2, 2026, leading Customs to block the clearance of the petitioner's goods.

The primary question before the court was whether a notification published in the e-Gazette can be made applicable to goods that reached the Indian port before the notification was actually published. The court was also called upon to determine whether the DGFT has the power to issue notifications with retrospective effect under the Foreign Trade (Development & Regulation) Act, 1992.

Publication In Gazette Is Not An Empty Formality

The Court emphasized that for any law to be binding, it must first exist and be made known to those governed by it in the manner ordained by the legislature. Relying on the Apex Court’s decision in Viraj Impex Pvt. Ltd. vs. Union of India, the bench noted that the requirement of publication in the Gazette serves a dual constitutional purpose of ensuring accessibility and accountability.

Digital Timestamp In E-Gazette Determines Commencement Of Law

In the era of electronic publication, the bench observed that the precise time when a notification is uploaded in the electronic mode assumes critical significance. Citing Union of India v. G.S. Chatha Rice Mills, the Court noted that a notification revised under the Customs Tariff Act or Foreign Trade Policy cannot operate retrospectively unless authorized by statute. The timestamp of 20:52:28 hrs on April 2 was the moment of "birth" for the restriction.

Court Rejects Argument On Date Of Clearance Being Relevant

The respondents contended that since the goods were not cleared before the notification came into effect, the restricted policy should apply. The Court rejected this, holding that the date of clearance is irrelevant for reckoning the legality of an import. Under Paragraph 2.17 of the Foreign Trade Policy, the relevant date for reckoning import is the date of shipment or dispatch from the supplying country, not the date of arrival or subsequent clearance.

Subordinate Legislation Cannot Have Retrospective Effect

The Court referred to Director General of Foreign Trade vs. Kanak Exports to reiterate that delegated legislation can only be prospective. It noted that Section 5 of the Foreign Trade (Development & Regulation) Act, 1992, does not confer any power upon the Central Government to make rules or policy changes with retrospective effect. Any attempt to apply a new restriction to goods already in transit or arrived would amount to unauthorized retrospective application.

> "The requirement of publication in the Gazette... 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 publication requirements is a condition precedent for enforceability."

Notification Inapplicable To Goods Arriving Before Publication Time

The bench found that the petitioner’s last consignment reached the Indian port at 01:39 AM on April 2, 2026, which was nearly 20 hours before the notification was published in the e-Gazette. Consequently, the goods fell outside the scope of the restriction. The Court agreed with the view taken by the Gujarat High Court in Enero Jewels Pvt. Ltd. v. Union of India, which dealt with the same notification and held that it could not travel retrospectively.

Jurisdiction To Ignore Ultra Vires Subordinate Legislation

Addressing the respondents' objection that the petitioner had not specifically challenged the validity of the notification, the Court relied on Shree Bhagwati Steel Rolling Mills v. Commnr. Of Central Excise. It held that Courts are bound to ignore subordinate legislation that is ultra vires or inapplicable to the facts of a case, even in the absence of a specific prayer to strike down the provision, if its enforcement would lead to a travesty of justice.

The High Court allowed the writ petition and directed the Customs authorities to process and release the petitioner's consignments immediately without insisting on an import authorization. The Court concluded that since the goods were imported prior to the notification coming into force, they were liable to be cleared under the "Free" category as per the legal position prevailing at the time of their arrival.

Date of Decision: 04 June 2026