ORDER
Ruma Pal, J.
1. This case arises out of the Duty Entitlement Scheme evolved by the Government of India as part of its Import and Export Policy. These policies are formulated periodically. The policy which this case relates to is the Import and Export Policy 1988-91. The provisions relating to the Duty Exemption Scheme are contained in Appendix 19 of the policy printed for the period in question.
2. The Duty Entitlement Scheme essentially was formulated as an impetus for exports. An exporter is entitled to import duty free material subject to terms and conditions specified in the relevant policy. The conditions relevant for this case include the obtaining of an appropriate licence. One of the kinds of licences is an advance licence. Such advance licences are granted to manufacturer exporters, inter alia, holding valid export orders in their names. The Advance Licence allows such exporter-manufacturers to import duty free material which are utilised for the manufacture of the proposed export items or to replenish the materials which have gone into the production of the resultant products already exported in anticipation of the grant of the Advance Licence [vide paragraphs 220(1) and 224(1) of the Policy]. In other words a licensee can import material by way of replenishment of the indigenous material used for exporting products. The licensing authority also issues a Duty Exemption Entitlement Certificate which has to be endorsed by the Customs Authorities with audited entries of Imports and Exports. After all the entries have been made the DEEC has to be returned to the licensing Authority to show that the licensee has complied with the condition stipulated in the Advance Licence.
3. The question at issue in this case is whether the Customs Authorities are bound to endorse the DEEC certificate with the exports made by the petitioner and release goods imported by the petitioner under the Duty Exemption Scheme.
The facts are as follows:
4. The petitioner manufactures and exports bicycle parts and accessories under the name of Overseas Cycle Company. In 1987 the petitioner received export orders for Bicycle parts and accessories from Bangladesh for the total value of Rs. 17,70,000/-. The petitioner applied for an advance licence under the Duty Exemption Scheme under which the petitioner sought to import 315.008 M.Ts of grade defective C.R. Sheets and Coils of the total C.I.F. value of Rs. 13,23,000/- (approx). The list of the products to be exported was also annexed with the application. The list reads as follows:-
"1. Handle Bar ... 11,000 pcs. 2. Chainwheel & crank 48-T ... 30,000 sets. 3. Seat Plants ... 5,000 dz. 4. Saddle Clip ... 10,000 dz. 5. Seat Clip ... 8,000 dz. 6. Hub (Front & Rear) ... 10,000 pcs. 7. Rim (Heavy Duty) Front & Rear ... 10,000 pcs. 8. Frame pipe set of 5 pcs. ... 30,000 pcs.
5. On 14th March 1988 an Advance Licence was granted to the petitioner by the Controller of Imports and Exports for import of 285.72 M.Ts. of defective C.R. Sheets and Coils of the value of Rs. 12,000,000/- valid for a period of 18 months from the date of issue. The advance licence was issued subject to the condition that the petitioner would export the bicycle parts and accessories in accordance with the list set out above. It was specified that the exports should be of the F.O.B. value of Rs. 17,43,150/- and made within a period of 12 months which would begin from the date of clearance of the first consignment of import or from 30 days after the date of importation of the first consignment whichever is earlier against the advance licence. A Duty Exemption Entitlement Certificate was also granted to the petitioner on 14th March 1988 (hereinafter referred to as the D,E.E.C). The D.E.E.C. was in two parts: Part I related to the imports and Part II related to exports. Between 22nd April 1988 and 18th July 1988 the petitioner exported 29 consignments of cycle parts. After the export of the 29 consignments the Customs Authorities endorsed part-F of Part-II of the DEEC with the exports so made. Between July 1988 and May 1989 the petitioner imported 283.630 M.Ts. of defective C.R.C.A Sheets and Coils.
6. According to the petitioner during this period there was litigation relating to the firm of Overseas Cycle Company. The petitioner was appointed a receiver over the business of the firm by the Supreme Court. The petitioner as such Receiver exported 38 consignments of cycle parts and accessories between 3rd July 1989 to 29th September 1989.
7. On 9th August 1989 i.e. prior to fulfilling its export obligation, the petitioner made an application to the Deputy Chief Controller of Imports and Exports (D.E.E.C. Section), Calcutta for amendment of the D.E.E.C. Book with regard to the items of export, for extension of the export obligation period and for enhancement of the C.F. value of import in the Customs purposes copy of the licence. The first amendment was required because the importers had changed their order regarding the items, although the overall value of the export remained the same. The second amendment required the extension of the export obligation period by a period of 6 months from the date of expiry of the period under the advance licence which expired on 29th August 1989. Along with the application for amendment of the licence the petitioner submitted the D.E.E.C. Book, the advance licence, the fresh indents and copy of the import invoices, bills of lading and bill of entries to the Dy. Chief Controller of Imports and Exports. The D.E.E.C. Book was returned by the Joint Chief Controller of Imports and Exports. As far as the conditions attached to the licence was concerned, against the stipulation for export within a period of 12 months from the date of clearance an endorsement appears “Not applicable”.
8. After receiving the D.E.E.C. Book from the J.C.C.I.E. the petitioner submitted the same to the Superintendent of Customs Petrapole Station for endorsement of the 38 consignments of export made between 3rd July 1989 to 29th September 1989. The Superintendent of Customs however directed the petitioner to submit the D.E.E.C. Book to the Assistant Collector of Customs, Barasat Division, Customs House, Calcutta. Under cover of a letter dt. 3rd November 1989 the petitioner submitted the D.E.E.C. Book together with all documents in respect of the balance 38 consignments to the Assistant Collector of Customs, Barasat Division.
9. On 13th December 1989 the petitioner was served with a show cause notice dt. 12th December 1989 issued by the Assistant Collector of Customs, Special Investigation Branch by which it was alleged that the petitioner was misusing raw-material imported and cleared duty free against the advance licence dt. 14th March 1988. The petitioner was asked to show cause:-
“(i) Why the duty exemption under Notification – 116/88-Cus., dt. 30-3-1988 as claimed by them should not be denied and why the duty leviable as aforesaid should not be paid by them.
(ii) Why the goods imported under DEEC should not be confiscated under Section 111(d) and (m) & (o) of the Customs Act, 1962.
(iii) Why penal action should not be taken against them under Section 112(a) ibid.”
10. The petitioner replied to the show cause notice. A personal hearing was granted by the Collector. An adjudication order was passed on 26th March 1990 confirming the allegations made in the show cause notice, confiscating the imported goods and imposing penalty on the petitioner. The petitioner moved an application under Article 226 challenging the adjudication order (hereinafter referred to as the first writ petition). The first writ petition was ultimately, disposed of by an order dt. 5th June 1990 passed by the Appellate Court, by which the petitioner was relegated to the alternative remedy available to him under the Act. The petitioner accordingly preferred an appeal from the adjudication order before the Customs, Excise and Gold (Control) Appellate Tribunal. The Tribunal set aside the order of the Collector and held inter alia that the goods imported by the petitioner could not be said to have been imported in violation of the conditions of the licence. The Tribunal accordingly set aside the order of the confiscation and penalty imposed by the adjudication order.
11. In the meantime by letters dated 18th January 1990 and 23rd March 1990 the petitioner asked for return of the DEEC Book after endorsing the same with the 38 consignments exported by the petitioner. After the order was passed by the Tribunal on 31st October 1990, the petitioner again wrote to the respondents enclosing a copy of the order on 14th December 1990 with a request to return DEEC Book along with the necessary endorsements. According to the respondents however, a copy of the order dt. 31st October 1990 was received by them only on 18th January 1991.
12. The respondent Customs Authorities have neither returned the DEEC Book with the required endorsements nor released the 283.630 M.Ts. of C.R.C.A. Sheets imported by the petitioner in 1989 against the advance licence dt. 14th March 1988.
13. By reason of the aforesaid the petitioner filed this writ petition for a direction on the respondent nos. 2 and 3 to return the DEEC Certificate Book parts I and II with the endorsements of the 67 consignments exported by the petitioner as well as for a direction on the respondent No. 1 to release C.R.C.A. Sheets imported by the petitioner. Although the petitioner has also prayed for a direction on the respondent No. 4 to allow the petitioner to sell the C.R.C.A. Sheets so imported, no submission in this regard was made at the time of hearing.
14. It may be noted at this stage that the respondents 1 to 3 represent the Customs Authorities (hereinafter referred to as the said respondents). The respondent No. 4 is the Joint Chief Controller of Imports & Exports (hereinafter referred to as JCCIE).
15. The petitioner’s contention is basically that the Tribunal having held in the petitioner’s favour, there was no reason for the said respondents not to release the imported goods and to return the DEEC Books duly endorsed.
16. Two affidavits have been filed by the said respondents. No affidavit has been filed by the JCCIE. The contentions of the said respondents as made in the said affidavits may be summarised as follows:-
(i) The petitioner has not given any demand for justice prior to moving the writ petition.M
(ii) The petitioner had equally effective legal remedies available to him.
(iii) The order of the Tribunal had not become final inasmuch as the respondents had filed a reference application from the said order under Section 130(1) of the Act and the said application was still pending.
(iv) The export obligation period had not been extended beyond the original period which expired on 22-8-1989. 24 Export Applications (E.A.’s) had been made after the expiry of the export obligation period. Furthermore there was a discrepancy with regard to the difference in description between the export list annexed to the advance licence and the goods actually exported. To quote from the said respondents’ affidavit “the party appeared to be liable for action under Sec. 117 of C.A. ’62 for violation of Sec. 50 of the C.A. ’62 accordingly, action as per law in respect of the Export consignments was being contemplated when in the meantime the subject Writ Petition has been filed by the party.”
I am unable to uphold any of the contentions of the said respondents.
17. As far as the first contention of the said respondents is concerned it would not be correct to state that no demand for justice has been made. Apart from the letters which have been noted above, the letters themselves record the repeated representations made by the petitioner to the respondents for endorsement of the DEEC Book as prayed for in this writ petition.
18. As far as the second contention of the respondents is concerned it is not specified as to what alternative remedy is available to the petitioner which would give the petitioner the relief prayed for in this writ petition. In any event assuming that such an alternative remedy is available, it is well established that the existence of an alternative remedy is not a bar to the jurisdiction of the Court under Article 226 of the Constitution. Furthermore the Court having entertained the petition and the affidavits being complete would not be acting in a sound exercise of its discretion by rejecting the writ petition at this stage. [Shri L. Hriday Narayan v. I.T. Officer, Bareilly ].
19. As far as the third contention of the respondents is concerned, I am of the view that the mere filing of an application under Section 130(1) of the Act cannot justify the respondents in not complying with the order in respect of which the reference has been filed. No authority has been cited before this court to the contrary.
20. The last and final contention of the respondents may be considered on the following basis:
(a) Export beyond the Export obligation period.
(b) Export of items not covered by the advance licence.
(c) Contemplated proceedings under the Customs Act, 1962 against the petitioner.
21. As far as ground (a) is concerned no affidavit has been filed by the JCCI & E being the Licensing Authority in opposition to the allegations contained in the petition.
As far as the JCCI & E is concerned therefore, the contentions in the petition remain uncontroverted. Furthermore, in a letter dt. 17th October 1989 written by the JCCI & E in response to the petitioner’s application for amendment of inter alia the Export obligation period the JCCIE had stated:-
“As regards extension of E/O I am also directed to inform you that since the import has not yet been effected nor you executed the Bond the question of extension of E/O does not arise.”
22. It may be noted that the letter was written after the date of expiry of the original export obligation period. Furthermore as noted earlier in this judgment an endorsement of ‘Not Applicable’ appears next to the stipulation of the Export Obligation period.
23. It is for the Licensing Authorities to extend the period. The JCCIE is clearly treating the commencement of the Export Obligation period from the date of clearance. It does not therefore appear that the allegation of the said respondents regarding the violation of the Export Obligation period is prima facie tenable.
24. With regard to ground (b), in the order of the Tribunal it has been recorded by the Tribunal as follows:
“In this case, the appellants have already exported the bicycle parts in accordance with the specifications and it is not the case of the department that the appellants had not fulfilled this condition of exporting the bicycle parts.
(Emphasis supplied)
25. The petitioner has, admittedly exported goods of the value prescribed under the Advance Licence. It is also to be remembered that the JCCIE have not made any allegation till today against the petitioner regarding the non-export of goods covered by the Advance Licence.
26. With regard to ground (c) no action has been taken by the respondents till today in respect of the alleged contravention by the petitioner of the terms and conditions of its licence. The exports were completed admittedly by September 1989 more than one and a half years earlier. The violation if any of the conditions of the Advance Licence by exporting goods not covered thereby was well known to the said respondents. The Court cannot be asked to act on the basis of unproved allegations and contemplated action against the petitioner.
27. Paragraph 27(1) of the Import & Export Policy of 1988-91 provides as follows:
“Shipments made in the export obligation period will be entered on the DEEC by the Customs Authorities concerned.”
Paragraph 27(7) of the said Policy provides as follows:
“At the request of the Licence holder, on completion of his exports or for settling his accounts vide paragraph 29(3) below before such completion, the Customs Authorities will normally return the DEECs with all parts filled in within 30 days from the date of receipt of DEECs with the connected documents.”
28. The word “normally” qualifies the period of 30 days. In other words the DEEC must be returned within 30 days normally. The demarcation of a time limit indicates the intention of an expeditious return of the DEEC or at least a return within a reasonable time. In any event if the conditions for the endorsement have been satisfied the DEEC must be returned. In this case more than 19 months have expired since the date of receipt of the DEEC Book by the said respondents with the connected documents. No explanation has been given as to why the said respondents have delayed matters for this abnormal period.
29. There is no justification for the respondents also to withhold the release of the imported material at this stage. There is no pending claim nor any proceedings against the petitioner except for an application under Section 130(1) of the Act. As long as the order of the Tribunal stands the said respondents are bound to honour the same.
30. In the circumstances I allow this writ petition by directing the said respondents:
(i) to return the DEEC Book parts I and II duly endorsed and the relevant licences in respect of all the exports made by the petitioner after debiting/endorsing the same.
(ii) to release the imported goods covered by the Advance Licence to the petitioner within 10 days from the communication of the operative portion of this judgment.
It is made clear however that if the advance licence has not been amended as regards enhancement in the value of the imports, the petitioner will be allowed duty free import only upto the amount covered by the licence and will be required to pay Customs Duty as leviable on the balance amount.
31. There will be no order as to costs.
All parties to act on a signed copy of the operative part of this judgment and order on usual undertaking.