JUDGMENT
B.P. Saraf, J.
1. The petitioner carries the business, inter alia, of importing rough diamonds into India and exporting cut and polished diamonds out of India. He is registered as an export house and holds export house certificate by the Chief Controller of Imports and Exports. The petitioner made request for endorsement of certain R.E.P. licences acquired by transfer in terms of paragraph 148 of the Import and Export Policy 1983-84. The request of the petitioner for endorsement was, however, turned down by the Controller of Imports and Exports on ground, inter alia, that the validity of the licences had already expired long before the request for endorsement in terms of paragraph 148 of the policy was made by the petitioner. The petitioner is aggrieved by the above orders of the Controller of Imports and Exports. According to him the Controller of Imports and Exports was not justified in law in rejecting his request for endorsement of the licences on the ground of expiry of the validity of the same before the request for such endorsement was made. The petitioner contends that the authority concerned was obliged to consider his request for endorsement even on a licence, the validity of which had expired and to make necessary endorsement if the conditions for such endorsement are satisfied. Heavy reliance is placed in support of this contention on the decision of this Court dated 25th September, 1984 in O.O.C.J. Writ Petition No. 89 of 1984, as also on a Division Bench decision of this Court in Union of India v. Gem International, 1991(54) E.L.T. 73.
2. We have carefully considered the above submissions of the petitioner. We, however, find it difficult to accept that request for endorsement can be made in respect of a licence, the validity of which has expired, without first making a request as contemplated by paragraph 210 of the Hand Book of Import Export Procedures, 1983-84 for revalidation of the same because, in our opinion, under paragraph 148 of the Import Export policy what is contemplated is endorsement of a licence which is valid and subsisting and not of a licence the validity of which has already expired. Revalidation of the licence must precede endorsement. The endorsement can only be on a subsisting licence. In this connection, it may be expedient to set out paragraph 148 of the Import Policy (as amended by Public Notice No. 18 of 1983 dated 24th May, 1983 and Public Notice No. 34 – I.T.C. (P.N.)/83 dated 25th August, 1983) which is as follows :
“Special requests for endorsement on REP Licences
148(1) Special requests from registered exporters for utilisation of REP licences will be considered by the Chief Controller of Imports and Exports, New Delhi on merits. This may be subject to such conditions as may be laid down by the Chief Controller of Imports and Exports.
(2) Manufacturer exporters producing exclusively for exports but not approved as such under the Scheme of 100% export-oriented units, may be allowed to import any item appearing in Appendices 3, 6 or 8 of this policy, within the over-all value of valid REP licence acquired by transfer in accordance with the Import Policy in force. Such import shall be subject to the condition that the items to be imported are those as are required by the manufacturer exporter for production in his own unit, and the entire production shall be exported. Reports thereof shall be duly furnished to the licensing authority concerned on a quarterly basis, within one month of the expiry of the concerned quarterly period, giving the description of each item imported within its CIF value and quantity and the FOB value of goods exported with their description and quantity itemwise. Requests for endorsement under this provision will be entertained by the Regional Licensing authorities concerned subject to prescribed conditions. The REP Licence sought to be endorsed should have unutilised balance of at least 3 months in its period of validity as on the date on which request for endorsement is received by the concerned licensing authority.
(3) The provisions made in sub-para (2) above will be subject to the following :
(i) The request for endorsement should be accompanied by a photostat copy of the Export Performance Certificate issued by Export Commissioner under para 225(3) of this Policy, showing that the Unit concerned exported 100% of its production during 1982-83.
(ii) The request for endorsement should be accompanied by a list of items to be imported. The items should be those as are related to the product (s) exported by the concerned unit and which appear in Appendix 3, 6 or 8 of this policy.
(iii) The licence endorsed shall be marked “Non-transferable”.
(iv) A condition shall also be imposed on the licence that it shall be subject to “Actual User” condition and the entire production of the unit shall be exported. The licence holder shall also furnish reports of imports and exports on a quarterly basis, within one month of the expiry of the concerned quarterly period, giving CIF value, quantity and description of each item imported and FOB value and description of each product exported.
(v) In 1983-84, the licensing authority may allow endorsement upto a value not exceeding twice the value of REP licence obtained by the concerned unit during 1982-83 against exports of the products manufactured by it. Request for higher value will require prior clearance of the Chief Controller of Imports and Exports, New Delhi. The applicants should give full justification in support of the request for endorsement under these provisions.”
A bare reading of the above paragraph, more particularly sub-para (2) thereof makes it clear that the request for endorsement can be entertained by the concerned authority subject to prescribed conditions only. One of the conditions is that the REP licence sought to be endorsed should have unutilised balance of at least 3 months in its period of validity as on the date on which the request for endorsement is received by the concerned licensing authority. This clearly goes to show that the request for endorsement has to be made at least 3 months before the expiry period of the licence. Chapter VIII of the Hand Book of Import Export Procedures, 1983-84 deals with the period of validity and revalidation of licences. Para 193 thereof provides that unless otherwise provided the initial period of an import licence will be 12 months. Paragraph 200 of the Hand Book deals with revalidation of REP licences. This paragraph, so far as relevant, reads :
“Revalidation
200.(1) No request for extention of the period of validity of REP licences issued against exports made on or after 1-4-1978 will normally be entertained. In hard cases, however, revalidation may be allowed by the licensing authority concerned for a period not exceeding 6 months, subject to such conditions as may be imposed. Requests for longer periods will require prior approval of the Chief Controller of Imports and Exports, New Delhi, for extension, on merits, subject to such conditions as may be imposed.
(2) Requests for extension of the period of validity of REP licences which are utilised under para 138 of Imports and Exports Policy (Vol. I) may be considered by the licensing authorities concerned, on merits, and revalidation allowed upto a period not exceeding six months at a time, and also not exceeding 12 months in all.”
Para 210 lays down the procedure for revalidation. It contemplates that requests for revalidation of licences should be made within the validity period of the licence. It provides further that in cases of specific hardship, the licensing authority may condone the delay in the submission of the application for revalidation where such authority is satisfied that the delay in making the application for revalidation was due to circumstances beyond the control of the licensee. Paragraph 210, so far as relevant, reads :
“Applications for revalidation to be made in time
210.(1) The requests for revalidation of licences should be made within the validity period of the licence. However, in cases of specific hardship, the licensing authority may condone the delay in the submission of the application for revalidation where such authority is satisfied that the delay in making the application for revalidation was due to circumstances beyond the control of the licensee.
(2) Date from which revalidation will take effect :
(a) Revalidation, where all wed, will be from the date of expiry of the licence when such licence is presented for revalidation before its expiry.
(b) In cases where the licence is presented for revalidation after the date of expiry, the revalidation where allowed, will be from the date on which the application for revalidation is made, and the licensing authority will make a specific endorsement on the licence to this effect.
(c) Notwithstanding the provisions of sub-para (b) above, a licensing authority may in cases of special difficulty, allow revalidation from the date of expiry of the licence, even if the licence in question is presented for revalidation after its expiry.”
Two things are clear from a reading of the above paragraph : First, a licensee who wants revalidation of a licence has to present the licence for revalidation; and second, it should be presented within the validity period of the licence. Revalidation may, of course, be made by the licensing authority in cases of special difficulty even if the licence in question is presented for revalidation after its expiry. But for that purpose, the licensee has to make a request for revalidation and make out a case of special difficulty by setting out necessary facts and materials. In the instant case admitted position is that no application was ever made by the petitioner for revalidation of the licence within the validity period of the licence or even thereafter as contemplated by para 210 of the Hand Book of Imports and Exports Procedures 1983-84, not to speak of setting out the facts and circumstances which may make out a case of special difficulty for exercise of power of revalidation under Clause (b) of sub-para (2) of paragraph 210. The following chart shows number and date of the licence the date of acquisition by the petitioner by transfer and date of request for endorsement :
Sr. Licence No. & Date of acquisition Date of application
No. Date of licence for endorsement
1. 0401293 of Not 11-3-1985
9-8-1983 available
2. 2981046 of ” ”
15-12-1982
3. 3005379 of ” ”
16-12-1983
4. 2996975 of 9-2-1984 11-3-1985
6-6-1983
5. 2996974 of 23-1-1984 ”
6-6-1983
6. 2995265 of 6-3-1984
25-5-1983
7. 2855103 of 14-2-1984 ”
25-8-1983
8. 3007527 of 15-2-1984 ”
22-11-1983
9. 3004187 of 16-1-1984 ”
20-10-1983
10. 2855164 of 6-3-1984 ”
20-9-1983
11. 0361319 of 8-2-1984 19-3-1985
16-9-1983
12. 9426762 of 14-2-1984 19-3-1985
16-11-1983
13. 0358802 of 24-1-1984 24-4-1985
4-3-1983
14. 2993573 of 6-2-1984 24-4-1985
26-4-1983
15. 0404537 of 9-3-1984 24-4-1985
17-6-1983
16. 0359343 of 24-1-1984 24-4-1985
6-5-1983
17. 0359348 of 15-2-1984 24-4-1985
16-5-1983
18. 3000949 of 7-3-1984 24-4-1985
6-4-1983
19. 3000923 of 16-2-1984 24-4-1985
22-3-1983
20. 2984148 of 24-1-1984 —
6-1-1983
It is obvious from the above chart that requests for endorsement in all the cases were made after the expiry of the validity period of the licence without supplying for revalidation of the same under paragraph 210. In that view of the matter, we find that request for endorsement under para 148(2) of the import policy was not maintainable as the licences sought to be endorsed had already expired before the receipt of request for endorsement by the licensing authority. The petitioner cannot claim revalidation of the said licences as admittedly no aplication has been made to the licensing authority for revalidation as contemplated by paragraph 210 of the Hand Book of Import Export Procedure either within the validity period of the licence or thereafter. In such a situation, the question of failure of the authority to revalidate the licence and/or this Court directing it to revalidate the same cannot arise.
3. Learned Counsel for the petitioner stated before us that the petitioner would have applied for revalidation after the endorsement was granted. This submission, according to us, is like putting the cart before the horn. Endorsement can be made only of a valid licence – either valid originally or by revalidation made by the competent authority. If the validity period of the licence has expired, application for revalidation must proceed the request of endorsement.
4. In view of what has been stated above, we are of the clear opinion that rejection of the request of the petitioner for endorsement of the licence on the ground of expiry of the validity of the licence was fully justified in law and there is no reason to interfere with the same.
5. In this connection it may be expedient to mention that even in cases where the validity of the period of the licence has expired, sub-para 148(2) requires that on the date on which request for endorsement is received by the concerned licensing authority, the REP licence sought to be endorsed should have unutilised balance of at least 3 months in its period of validity. In view of the fact that the licence itself was not valid and no application was made for revalidation thereof, for the present purpose, it is not necessary to go into the question whether this requirement is mandatory or directory. We leave this question open to be decided in an appropriate case.
6. In the premises aforesaid, we do not find any merit in this petition. It is dismissed accordingly.
Under the facts and circumstances of the case, we make no order as to costs.
Certified copy expedited.
Writ petition dismissed.