ORDER
K. Sampath, J.
1. The prayer in the writ petition is for issue of writ of certiorarified mandamus to call for the records on the files of third respondent in No. 8/10/REP/87-EPI/4180, dated 9-2-1986 confirming its earlier proceedings in No. 8/10/REP/87-EPI/3630 dated 17-11-1987, that of the second respondent in App/87-86-87/CA/REP-II, dated 29-7-1987 and that of the first respondent in Engg/Ac/811/L/812/Oct. 84 Accts. 7/REP-II, dated 11-11-1986, quashing them and directing the respondents to allow cash compensatory support of Rs. 6,35,200/- against the application dated 22-10-1986 of the writ petitioner.
2. The writ petitioner a manufacturer of motor vehicles chassis and spare parts, contracted for export to United Nations, Development Project, Nepal, for the Nepal Transport Corporation, Kathmandu under ODE / 82-83/15156/RAS/81/075 and exported five numbers of Ashok Leyland Hippo vehicles an item members trailers under two invoices. The vehicles were exported on 27-10-1984 under Shipping Bill dated 23-10-1984. The dealers of the petitioner in Nepal obtained the shipping bills from the customs authorities and forwarded the same on 31-10-1984. However, the documents were taken by them before posting the original, but since xerox copies were not acceptable to the respondents for grant of incentives, the petitioner approached the Assistant Collector of Customs, Raxual for fresh set of shipping bills and attested true copies of the shipping bills were made available to the petitioner only on 8-10-1986. Thereafter, the petitioner applied on 22-10-1986 for grant of export incentive and cash compensatory support along with xerox copy of the shipping bill duly attested, border crossing certificate issued by the Nepal Customs, certificate issued by the Grindlays Bank and indemnity bond guaranteeing that no other claim had been made for the shipping bill.
3. However, the first respondent rejected the claim on 11-11-1986 stating that the claim was time barred and not made within six months from the date of export. The appeal by the petitioner was rejected by the second respondent on 27-9-1987. Further, appeal to the third respondent was also rejected on 17-11-1987. The review application was moved as per para 153(2) of the Handbook of Import-Export Procedure 1984-85, before the third respondent. This was also rejected by the third respondent on 9-2-1988. The present writ petition has therefore been filed.
4. The grounds raised in the writ petition and also argued by the learned Counsel for the writ petitioner are as follows :
Cash compensatory allowance ought to have been given as a matter of course. The dismissal of the claim as time barred was clearly wrong and erroneous. There was no such period of limitation of six months in the Handbook of Import-Export Procedure 1984-85. No such limitation existed even at the time when the goods were shipped. During the relevant time, there was no limitation. The Handbook of Import-Export Procedure 1984-85, by para 323(4) permitted application to be received upto a period of 24 months from the date of shipment subject to 15% out of the entitlement. As per circular of the respondents, in cash the original documents were lost licensing authority could process. The claim with either shipping bill or bank certificate after verifying the realisation of interest. This has not been done in the case. The procedure under para 323 of the abovesaid handbook had been made applicable even for application against cash compensatory support, the six months limitation was for a claim without adequate documents on the strength of alternative evidence and affidavits. Alternatively, the claim could be made even upto 24 months subject to recovery of 15% of the entitlement. This has been clearly overlooked by the respondents. As already stated, at the time of export claim, even six months limitation was not introduced. This cannot be put against the petitioner. The delay, if any, had been properly explained by the petitioner and the rejection of the claim was wholly unwarranted.
5. A counter has been filed and the writ petition is opposed. As per the counter, the limitation period prescribed was 24 months in case of application where all the prescribed documents were produced. However, if the application was not supported with the documents required in original, application was liable to be rejected. The relaxation of the above procedure was prescribed by circular issued by Ministry of Commerce on 23-9-1982 read with circular dated 14-1-1985 in terms of which, in case of loss of the originals, claims should be preferred within a period of six months from the date of exports on the basis of attested copies and shipping bills along with an affidavit and indemnity bond. There was no provision made in case of late application where the documents were lost. The rejection of the application was valid and in accordance with the prescribed policy. Para 323(4) of the Handbook of Import-Export Procedure 1984-85, would be applicable only to applications where all the original documents are produced. The rejection of the writ petitioner’s application on the ground of limitation was only in accordance with the prescribed policy and the order of the rejection was not vitiated.
6. The learned Counsel, for the writ petitioner referred to a number of decision and also to textbooks on interpretation of statute and submitted that the rejection of application for the cash compensatory allowance was wholly misconceived. He also submitted that the circulars relied on by the Department were marked ‘Confidential’ and they were never made available to the petitioner or other customers to enable them to follow the circulars and make the claims. There was also nothing to show that circulars marked ‘Confidential’ were made public. It is therefore not open to the Department to rely, on these circulars. Even otherwise, on the date when the writ petitioner made the exports, circulars had not come into effect.
7. The learned Counsel relied on the Handbook of Import-Export Procedure 1985-88, and referred to paragraphs 323 and 327. The learned Counsel referred to the following decisions and textbooks in support of his submissions :
(a) M.L. Kamra v. Chairman-cum-Managing Director, New India Assurance Co. Ltd.,
(b) Mangalore Chemicals & Fertilisers Ltd. v. Deputy Commissioner of Commercial Taxes and Ors., Vol. 83/1991 Sales Tax Cases 234 (S.C.)
(c) State of U.P. v. Babu Ram,
(d) Statutory Interpretation By F.A.R. Bennion
(e) Corpus Jubis Secundum – Volume 32A By Francis J. Ludes and Harold }. Gilbert
(f) Kasturi Lal Lakshmi Reddy v. State of J & K, and
(g) Ramana v. I.A. Authority of India, .
8. Mr. IIias Ali the learned Counsel for respondents, referred to the various circulars and also relied on the judgment of the Supreme Court on B.O.I Finance Ltd. v. The Custodian, .
9. Admittedly, the exporters are entitled to cash compensatory allowance. It is not disputed that the petitioner exported goods to Nepal as claimed by them. Unfortunately, the original documents, which were to be produced before the authorities for claiming cash compensatory allowance, were lost in transit. In my view, in the circumstances set out above, the petitioner ought not to have been denied the cash compensatory allowance to which they were entitled by reason of the export made by them. It is not open to the Department to say that because the claim was not made with the original documents within a period of two years and with copies within a period of six months, the purpose for which copies or originals were required to be produced was simply to make sure that the particular exporter did not get double payment of cash compensatory allowance. It is not difficult for the Department to verify from the records whether any claim had been made by the exporters in respect of the same export on any previous occasion. To deny the exporter, the cash compensatory allowance which they are entitled to by virtue of the exports made by them on mere technicalities is to say the least immoral. Whether original documents were filed or copies were given was wholly immaterial. Necessary safeguards like indemnity could always be taken. Refusal to give cash compensatory allowance on the untenable ground that the claim was barred by limitation is the height of injustice.
10. Paragraph 323 of the Handbook of Import-Export Procedure 1985-88 provides for time limit for submission of applications. In the instant case, as already stated, originals were not available and they were lost in transit. Copies were applied for and made available only long after the six months period insisted on and pleaded by the respondent’s Department. There also does not appear to be any logic in the rule relied on a period of six months in the case of copies and two years for originals. There is no rhyms or reason in such a rule relied on by the Department.
11. As rightly pointed out by the learned Counsel for the petitioner, the Paragraph 323 of the said handbook dealing with the time limit for submission of applications, does not mention anything about the production of the originals. Paragraph 327 of the said handbook requires production of the export documents relating to exports of products other than those detained in paragraph 327 of the said handbook, bank certificate (in original) of exports, and bank attested copy of the invoice. It does not appear from the said paragraph or the earlier referred to paragraph that originals were to be produced. Only in the circular relied on by the Department, there is a reference to duplicate copies. These circulars are marked ‘Confidential’. Circular issued within the Department cannot be put against the writ petitioner, who would be totally unaware of such confidential circulars.
12. In Mangalore Chemicals & Fertilisers Ltd. v. Deputy Commissioner of Commercial Taxes and Ors., 1991 (83) STC 234, the Supreme Court pointed out the difference between mandatory and procedural provisions and also as to how taking statutes had to be interpreted, strict and liberal constructions had to be invoked at different stages.
13. In that case, concessions were given to new industries in respect of sales tax paid on raw materials. There was a Notification of the year 1969 providing for cash refund, but there was subsequent Notification of 1975 substituting adjustment of refund against sales tax payable in the place of cash refund. There was also permission to be applied for, for the first year and for the renewal for subsequent years and it was provided that only permission of renewal was granted, new industry should not be allowed to adjust refunds. Permission was applied for, was not granted for some extraneous reasons. The High Court refused to entertain the writ petition and the Supreme Court held that prior permission was not mandatory and the Department was directed to grant permission operating from the date of application. The Supreme Court in that case followed the decision of an earlier Supreme Court decision in Assistant Commissioner of Commercial Taxes v. Dharmendra Trading Company, 1988 (70) STC 59. The Supreme Court frowned upon technicalities.
14. In my view, the decision of the Supreme Court will directly apply. Confidential circulars issued by the Department were not mandatory in character. There was no disentitling circumstance in the instant case, which would justify refusal of the entertainment of the application for cash compensatory allowance. The Supreme Court drew a distinction between the provisions of statute which are all substantive in character and were built in with certain specific objectives of policy on the one hand and those which are merely procedural and technical in their nature on the other. There can be no doubt that the circular cannot deprive the petitioner of its just relief for cash compensatory allowance. The Supreme Court further observed that (there are conditions and conditions), some may be substantiate, mandatory and based on considerations of policy and some others may merely belong to the area of procedure. It will be erroneous to attach more importance to the non-observance of all conditions irrespective of the purposes they were entitled to serve. It has not been brought to my notice that the time limit fixed for making an application with certified copies as six months, was based on any policy decision.
15. The Supreme Court also referred to the dictum of Lord Denning in Wells v. Minister of Housing and Local Government, 1967 (1) WLR 1000 as follows :
“How I know that a public authority cannot be estopped from doing its public duty, but I do not think it can be estopped from relying on a technicality and this is a technicality.”
The Supreme Court also referred to Francis Bennion in his Statutory Interpretation, 1984 edition, to the following effect :-
“Unnecessary technicality : Modern courts seeks to cut down technicalities attendant upon a statutory procedure where these cannot be shown to be necessary to the fulfilment of the purposes of the legislation”.
16. In the view I am taking it, is not necessary to refer to the other authorities relied on by the learned Counsel. As has been pointed out in Statutory Interpretation by F.A.R. Bennion,-
“It is a principle of legal policy that law should be just, and that Court decisions should further the ends of justice. The Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislature intended to observe this principle. The Court should therefore strive to avoid adopting a construction which leads to injustice.”
“The Court should also seek to avoid construction that produces an absurd result.”
17. The petitioner has produced the best evidence available with it and as has been observed in Corpus Juris Secundum, Volume 32A.
“The best evidence rule goes only to the competency of evidence, not to its relevancy, materiality, or weight. The rule does not demand that the strongest possible evidence of the matter in dispute shall be given, nor that all evidence existing in the case shall be produced, but requires simply that no evidence shall be given from which, considering its own character and the nature of the transaction, an inference may arise that there is obtainable by the party other evidence more direct and conclusive and more nearly original in its source.”
It is also stated in the same volume at paragraph 823 as follows :-
“Secondary evidence is admissible where the writing constituting the primary evidence of the fact to be proved has been lost or destroyed without fault of the party offering the secondary evidence.”
18. The best available evidence was produced by the writ petitioner to substantiate the claim for cash compensatory allowance. It had also explained as to the loss of the originals. In the circumstances, I am clearly of the view that the deprivation of the cash compensatory allowance on the technical plea of bar of limitation was unjust.
19. It is also pointed out in Kasturi Lal v. State of J & K, that in the matter of largess, the discretion of the Government was not unlimited, its action must satisfy test of reasonableness and public interest. Unlike a private individual, the State cannot act choose to deal with any person it pleases in its absolute and unfettered discretion.
20. The discussion above obliges me to interfere and grant the prayer of the writ petitioner. Accordingly, the writ petition is allowed. Rule Nisi is made absolute. There will be no order as to costs.