JUDGMENT
1. The petitioners are engaged in the manufacture of various products and one of the main raw materials consumed by the petitioner-Company is ‘Synthetic Waste’, a large part of which is imported by the Petitioner-Company. A considerable portion of the petitioner-Company’s product of finished products is exported.
2. The petitioners received an order for the supply of about one lakh numbers of woollen blankets for export to Iran. Synthetic waste is an item which is used for the manufacturer of the said woollen blankets. Accordingly, the petitioners submitted an application on 8th September 1982 to the Import Control Authorities for the grant of an Advance Licence for import of the said synthetic waste, so that the same could be processed into the said woollen blankets, which would be exported to Iran. After some correspondence, finally on 6th May 1983 the Import Control Authorities issued to the petitioners an advance licence for the import of synthetic waste of a total C.I.F. value not exceeding Rs. 5,73,070/-. It was provided in the said Advance Licence of the Petitioner-Company that the petitioner should export one lakh numbers of woollen blankets, weighing 1,70,000 Kgs. of synthetic content of not less than 48 Metric Tonnes and for a total F.O.B. value of Rs. 53 lakhs.
3. The petitioners utilised the said Advance Licence by making imports of synthetic waste only to the extent of the value of Rs. 2,57,701.01. However, they discharged their entire export obligation by exporting woollen blankets of the requisite quantum and value even though the petitioners had not fully utilised their Advance Licence. Therefore, they made exports of a total F.O.B. value of Rs. 2,51,026.62. As a result, the petitioners became entitled to the benefit of replenishment arising out of the said export to the extent of 30 per cent. of the value of the said exports of Rs. 2,51,026.62. After setting off and deducting the amount of Rs. 2,57,701.01, which constituted the extent of utilisation of their Advance Licence, the petitioners were entitled to an Excess Entitlement Certificate of a value of Rs. 13,17,606.17 which the petitioners earned as a result as aforesaid. Accordingly, by their letter dated 11th January 1984, the petitioners submitted an application to the Import Control authorities for the issuance of Excess Entitlement Replenishment Licence of the value of Rs. 13,17,606.97. They also forwarded the relevant documents in respect of the said application. After scrutiny, the Import Control Authorities, by their letter dated 2nd March 1984 informed the petitioners that the documents produced by the petitioners were accepted towards the export obligation covered by the said Advance Licence against the export documents. They informed the petitioners that they were eligible for Excess Entitlement Certificate to the extent of F.O.B. value of Rs. 43,21,052/- and they gave the details in that behalf. They further informed the petitioners that this excess is in petitioners’ favour and the petitioners may prefer application for Import Replenishment Licence in accordance with the Policy along with this Excess Entitlement Certificate in original. They further directed that such application should be preferred within three months from the date of issue of the said letter.
4. The petitioners accordingly applied on 12th March 1984 and, therefore, within time. But is appears that in the meanwhile there was a suspension order as against the petitioners and the suspension order was in force till about October 1984. After the lapse of the suspension order, the petitioners, once again reminded the Import Control Authorities to furnish them with the licence as indicated in the letter dated 2nd March 1984.
5. The respondents issued such as licence on 12th December 1984. A copy of the said licence is annexed as Exhibit G-1 to the petition. In that licence it has been mentioned that the same has been issued as per the Policy of AM 84, meaning thereby for the period 1-4-1983 to March 1984. However, the licence had been limited to the extent of 40 per cent. of the value of the said licence for import of synthetic waste and 30 per cent. for packing. The petitioners were surprised to find these conditions in the import licence as under the Policy 82-83 when they secured the Advance Licence, there were no such conditions. Therefore, by their letter dated 11th March 1986 addressed to the Import Control Authorities, the petitioners pointed out that it was not permissible to impose any limit and/or restrictions on the total value of the synthetic waste, which would be imported under the said licence. The petitioners therefore, requested the Import Control Authorities to delete the said celling of 40 per cent. with regard to the import of synthetic waste.
6. The petitioners thereafter made further representations by various letters. They also pointed out that they had made exports of woollen blankets on the basis that they would be granted REP Licence for the import of synthetic waste. They also pointed out that if the petitioners were not permitted to make imports of synthetic waste upto the full extent, they would suffer serious loss. In the meanwhile, they also asked for extension of the said REP Licence which was to expire on or about 30th June 1986.
7. On 1st May 1986 the Office of the 1st respondent purported to pass an order stating that the REP Licence had been correctly issued and the petitioners’ request for deletion of the restriction in respect of the synthetic waste could not be considered. It contains no reason whatsoever, except an assertion that the licence had been correctly issued. The petitioners thereafter received another letter dated 8th May 1986 wherein the Import Control Authorities again re-asserted that the licence had been issued in accordance with the Policy provisions and the same was in order. Thereafter one more order, on the same lines, was issued on 21st May 1986. In between, on 16th May 1986 the petitioners preferred an appeal to the Joint Chief Controller of Imports and Exports, pointing out the injustice that had been done to them. They had asked for a personal hearing before the appeal could be disposed of. All these things were turned down by a cryptic order which came to be passed on 17th December 1986, wherein the petitioners were only informed that their appeal had been treated as closed.
8. Thereafter the petitioners filed the present petition.
9. In reply to this contention of the petitioners, the respondents relied on Para 254 under Chapter 23 (Transitional Arrangements) of Import Export Policy of 1984 which provides as follows :
“254. REP applications which have not been disposed of as on 1-4-1984 against which the licence is issued on or after 1-4-1984, the rate of import replenishment will be as admissible on the date of export but the items of import will be as permissible under the Import Export Policy 1984-85. This will not, however, apply to cases in which the relevant export contracts were registered in accordance with appropriate procedures. The exports made against registered contracts will be governed by the provisions of Appendix 20 of this Policy”.
Relying on this Rule, Mr. Rege for the respondents submitted that when the licence was issued, the new Policy had come into force and under the new Policy the petitioners were not entitled to the full replenishment licence and, therfore, the petitioners cannot make any grievance in that behalf. Mr. Rege also relied on the fact that sometime in November 1983 a suspension order had been passed and according to the said order the petitioners’ licence had been placed under suspension for one year and no import licence or customs clearance permit can be given to such a party during the period when the order was in force. Mr. Rege submitted that the application made by the petitioners for the licence could only have been considered after the revocation of the suspension order, by which time the new Policy of AM 85 had come into force and, therefore, licence could have been granted according to the new Policy and not according to any earlier policy.
10. In this connection, Mr. Rege relied on three cases viz. (i) Raj Parkash Chemicals Ltd. v. Union of India, , (ii) M/s. Indo Afghan Chambers of Commerce v. Union of India (iii) Union of India v. M/s. Godrej Soaps Pvt. Ltd., . In my view none of these authorities apply to the facts of this case. The question here is as to when the petitioners could be said to have earned the right to get the said licence. Their right came into effect under the 1983-84 Import Policy and that right cannot be taken away by any changes made in the subsequent Import Policy. In this connection, Mr. Ganesh relied on a judgment dated 18th September 1984 given by the Pendse, J. in the case of H. Patel & Co. v. Union of India, in Writ Petition No. 1465 of 1984. As against this judgment the Union of India had gone in appeal. But the appeal was also rejected, accepting the line of reasoning given by Pendse, J. and the relevant observations of the Division Bench are in Paragraph Six of the Appeal, being Appeal No. 232 of 1985 in Writ Petition No. 1465 of 1984, decided on 19th March 1985, Coram; Kania & Kurdukar, JJ. It appears that as against this judgment, the Appellants i.e. the Union of India had gone to the Supreme Court, but the said petition was also dismissed. As regards Para 254 under Chapter 23 (Transitional Arrangements) of Import Export Policy of 1984, in my view that does not say anything against the petitioners. What the said para says is this : “The right of replenishment against the exports made in the earlier period would be the same as applicable on the date of exports. However, if there is any change in the item of replenishment, the same would be given as per the new Policy”. In this case, there is no change in the item of import and also no change in the overall replenishment to be given against the import. Therefore, any stipulation curtailing the replenishment for synthetic waste under the Policy cannot be applied in the case of petitioners. The said Policy itself says that the right of replenishment against the exports made in the earlier period would be the same as applicable on the date of exports. The Policy does not stipulate that any quantity or value restriction with regard to any particular item would be as per the new Policy. If that is so, the petitioners must necessarily succeed in the present petition. I, therefore, pass the following order :
ORDER
11. Rule made absolute in terms of prayers (a), (b) and (c) of the petition. The period of revalidation shall be a period of one year from today. However, in the circumstances of the case, there will be no order as to costs.