JUDGMENT
S.B. Sinha, C.J.
1. The petitioner herein is an exporter of acrylic shawls. On 1.4.1997 the Ministry of Commerce and Industry, Department of Commerce, Government of India, issued a handbook of procedure of Exim Policy from 1st April 97 to 31st March 2002. Policy was framed for the benefit of the exporters. The relevant contents of policy to give benefit to the exports are as under:
“However, wherever the Policy provisions have been modified to the disadvantage of the exporters, the same shall not be applicable to the consignments already handed over to the Customs for examination and subsequent exports up to the date of the Public Notice. Similarly, in such cases where the goods are handed over to the customs authorities before the expiry of the export obligation period but actual exports take place after Expiry of the Export Obligation period, such Exports shall be considered within the export obligation period and taken towards fulfilllment of export obligation.”
3. A further Policy Circular being No. 19 for 1998-2002 was issued on 10th July 1998 which is in the following terms:
“This issue has been examined and it has been decided that wherever the DEPB rates have been reduced or value capping has been imposed the reduction of rate or imposition of value cap shall not be applicable wherever the consignment of exports under DEPB have already been handed over to the Customs Authorities prior to the date of notification for examination and clearance for exports. This issues with the approval of Commerce Minister.”
4. The petitioner herein filed eight shipping bills through its Clearing House Agent bearing S.No. 1091548 to 1091555 dated 28th March 2000 for export of acrylic shawls under the said scheme claiming the DEPB drawback duty, drawback scheme, DEPB Serial No. 40 of product group 89. The goods arrived at Customs Bonded/Notified i.e. Inland Container Depot at Tughlakabad, New Delhi run by the Container Corporation of India on 29th March 2000 and 31st March 2000. The petitioner was given to understand that as there had been eight shipping bills for one container, entries in the computer thereof could be made only upon obtaining permission therefore from the Dy. Commissioner, Export. Such permission was granted on 1st April 2000 where after such entry had been made. According to the petitioner, they, however, in the evening of 31st March 2000 itself explained the matter to the higher authorities and requested for immediate action by a letter dated 31st March 2000 which is to the following effect:
“Sub: Export of Acrylic Shawls under 8 invoices.
With reference to your query, we clarify that this is the requirement of our buyer to ship the goods together in one lot by making separate 8 invoices, as the buyer has to sell these goods to the ultimate buyers in smaller lots.
As the new EXIM policy will be announced tomorrow, the DEPB rates may vary/change, so you are requested to kindly allow the shipment to enable us to hand over the goods to the shipping line.
Your timely action will be highly appreciated.
Thanking you,
Yours Faithfully,
For Cannon Steels Pvt. Ltd.
(R.K. Goyal)
Director”
5. According to the petitioner, as the computer system was down, the entries could not be made in the computer in relation whereto the petitioner had issued another letter on the said date which reads thus:
“Sub: Export of Acrylic Shawls under 8 invoices.
With reference to our telephonic talk this evening, we are requesting your honour that Dy. Commissioner (Exports) be communicated to allow us the exports today, as your honour has told that computer system is down. Non release of consignment today may effect our export performance.
As the new EXIM policy, will be announced tomorrow, the DEPB rates may vary/change, so the exports are to be completed on 31 March.
Kindly do the needful at the earliest and oblige.
Thanking you.
Yours faithfully,
For Cannon Steels Pvt. Ltd.
(R.K. Goyal)
Director”
6. According to the petitioner, such permission was granted only on 1st April 2000 intentionally as on that date, the DEPB scheme and the schedule was modified in terms whereof the DEPB rates for acrylic shawls covered under Sl.No. 40 of Product Group 89 was lowered from 17% to 9%. By reason of such a change in the policy, allegedly the petitioner had to suffer a loss of Rs. 19,18,806/-
7. According to the petitioner, as the consignment was not released, they had to issue a letter to the Commissioner of Customs on 6th April 2000 to the following effect:
“Kind att: Mr. B.D. Gupta
Sub: 8 Nos Shipping Bills filed on 28th of March, 2000 for export of Shawls under DEPB
Dear Sir,
First of all the provisions of the customs policy and the clarification are very clear, whatever may be the goods, the goods should be released provisionally the day the shipping bills were filed.
The Customs authorities asked us to club the shipping bills, the reason for provisions in the customs act for clubbing the shipping bills are not known. Once the shipping bills are filed, the duty of the customs to release the shipping bills immediately. It is for the shipping lines to collect the cargo accordingly considering FCL or LCL.
As per general we can file as many as shipping bills as per requirement of the buyer.
Further why for 3 days the Customs D.C. didn’t release the consignment when the same remained with him on his computer system the day we filed it.
Further it is unthetic and against the law that till today the consignment is not released for one or the other reason for motivate consideration.
The undersigned spoke to Shri Bhatia on 31.3.00 to release the consignment as DEPB rates will be changed tomorrow for which letter dated 31.3.00 was sent to Joint Commissioner.
We request your honour to kindly look into the delay which is deliberately caused by the D.C. (Exports). The goods should be released without any further delay at the rate of DEPB before 31st of March and there has been clarification by the deptt. of DGFT where the DEPB has been reduced the day the goods are available to the Customs for examination that date should be taken for rate of DEPB. The goods were carted on 29th of March, 2000 and surprising till today these are not examined or released. Held back the consignment of export is a great mischief. The person concerned should be accountable for delay in such matter whereas the Finance Minister and Commerce Minister are viewing that there will be growth of 20% whereas the export shipping bills filed on 28th of March, 2000 have not been released till today.
Kindly look into the matter and release the goods immediately without further least delay.
Thanking you.
Yours faithfully,
For Cannon Steels Pvt. Ltd.,
(R.K. Goyal)
Director”
8. The petitioner, further by another letter of the said date, explained the position that there had been no fault on their part and they were clubbing the documents by letter dated 7th April 2000 which reads thus:
” Kind att: Mr. Bhatia
Sub: 8 Nos Shipping Bills filed on 28th of March, 2000 bearing Nos. 1091548 to 1091555
Dear Sir,
The above shipping bills were filed on 28.3.2000.
The goods under the above shipping bills were carted on 28.3.2000 and 31.3.2000.
The goods were presented in Warehouse for examination on 31.3.2000 and alert register were checked on 31.3.2000.
On the instructions of A.C. (Dock) Mr. Verma that these 8 Shipping Bills are required to club as they are going in one container, whereas the examination was not conducted when the goods were available for examination and the Dy. Commissioner of Customs Mr. Rastogi had not given the permission of clubbing though the requests are made to your honour and letter sent to your honour with that regard and your honour informed that the computers are down.
We further informed that the rates are changing tomorrow and it will be great problem. The examination should be completed on 31.3.2000 and let export could have been done on the same day i.e. 31.3.2000.
Total record shows that the goods were carted on 28.3.2000 and 31.3.2000. Whey there was deliberate delay by D.C. (Exports).
Now as per the Policy Circular No. 19 (Re-98) 1998 — 2002 dated 10.7.98 issued by the Directorate General of Foreign Trade, reading as under:-
“Representations have been received by the individual exporters as well as Export Promotion Councils with regard to the reduction in the DEPB rate on certain export product as well as imposition of value cap for calculation of DEPB entitlement on certain export products.
This issue has been examined and it has been decided that wherever the DEPB rates have been reduced or value capping has been imposed, the reduction of rate or imposition of value cap shall not be applicable wherever the consignment of exports under DEPB have already been handed over to the Customs Authorities for examination and clearance for the exports.
As per this Policy Circular of the DGFT which confirms where the DEPB rates are reduced but the goods are presented for examination and clearance, the DEPB rate will be taken for the dated on which the goods presented for examination/ clearance and let export. The DEPB rate as on 31.3.2000 was 17% whereas the rate on 1.4.2000 is 9%
There is no fault of us for clubbing the documents which was delay between the Customs themselves whereas the Dy. Commissioner of Customs (Export) could have allowed on same day i.e. 31.3.2000. As your honour informed that the computers are down and the works are not completed but prior that same the goods remained at the Dock and prior to change of the rate the goods were available with the Custom for examination and clearance thereof and let export.
Considering the above facts, you are requested to kindly instruct the department to allow the shipment for the 8 shipping bills already filed.
Further day by day the demurrage is incurring and export has not been effected which will lead to the losses which will be irreparable as these items are seasonal for which the winter has already set in, in South Africa and is very short winter.
Your early action of today will be highly appreciated to complete the export at rate i.e. 17%
Yours faithfully,
For Cannon Steels Pvt.Ltd.,
(R.K. Goyal)
Director”
9. However, on 7th April 2000, the petitioner came to know that clubbing permission had not been given. The petitioner contends that the stand taken by the respondents herein to the effect that the petitioner had requested for amendment of their shipping bills, was not correct and as such, the remarks made therein to the effect that “amendment allowed” were incorrect. The petitioners made several representations to the authorities of the Customs Department including Joint Commissioner of Customs and Chief Commissioner of Customs. On or about 9th May 2000, however, the petitioner received a communication to the effect that the rates prevalent on 1st April 2000 would be applicable in relation to the consignment stating:
“As per records available with the department it is seen that the part consignment towards the said 8 shipping bills arrived in CONCOR Ware House on 29.3.2000 and the remaining cartons were received only on 31.3.2000 at 18.30 P.M. The arrival of the goods was got recorded by your CHA only on 1.4.2000 at 3.00 PM which in effect would be the time of registration of goods arrival by the Customs. Accordingly, the rate as applicable on 1.4.2000 under the DEPB scheme becomes applicable on such goods.”
10. The petitioner thereafter again filed several representations. On or about 3rd October 2000 copies of 4 Nos DEPB licenses were issued against the shipping bills filed by the petitioner at the rate of 9% where against again the petitioner filed a representation. By an order dated 27th March 2001, upon taking into consideration the respective contention, the Dy. Commissioner of Customs; Exports arrived at the following findings:
“10. I have carefully gone through the facts of the case, the averments made by the exporter in their letters and the record available on the file.
11. It is observed that last batch of goods arrived in the CONCOR shed at 1800 hrs on 31.3.2000 and exporter/CHA had not presented the goods for registration (Goods arrival) on that date itself. It shows that since “Package Details” were not available with CHA till 1800 Hours on 31st march 2000 and the exporter/CHA had not taken the permission for clubbing the above mentioned 8 Shipping Bills from the competent authority, they could not present the goods for registration (Goods arrival) in EDI system on 31st March 2000. It is further observed that the permission for clubbing was granted after a reasoned application was put up by the CHA/exporter on 1st April 2000 and after that the export goods were got registered in EDI system on 1.4.2000.
12. The averments made by the exporter in their letter dated 15.4.2000, that on discussion with the department it was told that there was no need of permission of clubbing are not correct. Exporter being a Govt. recognized export House should have known that permission for clubbing of S/Bills are necessary when the goods of more than one S/Bill have to be stuffed in one container and in this case not only consignee and destination for all the 8 Shipping Bills were same, but goods of all Shipping Bills were also identical. Further the exporter’s representative CHA M/s. P.S. Bedi & Co., should know all the requirements to be done for clubbing of S/Bs.”
11. An appeal was preferred thereagainst by the petitioner before the Commissioner of Customs and by reason of an order dated 10th July 2001, the same was dismissed upon giving an opportunity of personal hearing to the petitioner.
12. Mr. Mahavir Singh, the learned counsel appearing on behalf of the petitioner would submit that having regard to the fact that the entire consignment admittedly had been handed over on 29th March 2000 and 31st March 2000, the stand taken by the respondent to the effect that examination of the said consignment would be the relevant date for the purpose of determination of the amount of duty payable, must be held to be wholly incorrect. The learned counsel would contend that admittedly the procedures laid down therefore namely (a) handing over the consignment to the examinations by Customs; and (b) exportation of the same, are the only requirements for export and having regard to the fact that the entire consignment was sent within the customs area, the impugned orders passed by the respondents must be held to be wrong. The learned counsel would contend that non-recording of the details of the consignment in the computer was not a matter which was within the domain of the petitioner and in fact, as noticed hereinbefore, the same could not be completed as the computers were down. According to the learned counsel, there had been legitimate expectation on the part of the petitioner herein that having regard to the changes in the policy decision as regards payment of customs duty, the respondents would act fairly and impartially. In any event, contends the learned counsel, the policy having been made for facilitating export, the same should be construed in favor of the exporter.
13. Mr. Y.P. Narula, the learned counsel appearing on behalf of the respondents, however, would submit that Chapter 15 of the Export and Import Policy deals with miscellaneous matters. Clause 15.15, according to the learned counsel, had not been correctly reproduced by the petitioner for reasons best known to it which merely shows the date of shipment/dispatch in relation to the exports. In that view of the matter for the purpose of shipment the following circular whereupon the petitioner has placed reliance, was not at all relevant as regards arrival of consignment:
“However, wherever the Policy provisions have been modified to the disadvantage of the exporters, the same shall not be applicable to the consignments already handed over the Customs for examination and subsequent exports up to the date of the Public Notice. Similarly, in such cases where the goods are handed over to the customs authorities before the expiry of the export obligation period but actual exports take place after Expiry of the Export Obligation period, such Exports shall be considered within the export obligation period and taken towards fulfilllment of export obligation.”
14. The learned counsel would contend that Clause 3 of the Duty Drawback Scheme lays down the procedure as to how the consignments of arrival of goods at ICD will have to be dealt with. The same is in the following terms:
“3. Arrival of goods at ICD : Patparganj
The goods brought for the purpose of examination and subsequent “Let Export” will be allowed entry inside ICD : PPG by CWC on the strength of the carting order issued by CWC, the checklist and the declaration from (Annexure-C). The checklist and the data entry from should bear the Shipping Bill No. and date given by the Service Centre. CWC will not insist on production of Shipping Bill to allow the goods into ICD. However, in respect of consignments coming loaded in containers (whether factory-stuffed or not) CWC will verify the number of container(s) mentioned in the carting order and that written on the container(s). If at any stage subsequent to entry of good in the ICD it is found that the Shipping Bill had not been filed, the exporter and his agent will be solely responsible for the delay in processing the documents for export and any consequent damage/ deterioration/ pilferage in respect of the export goods. After entry, the exporter or the Agency will present the goods to CWC. After the CWC has received the goods the exporter or his Agency will present the good to Inspector or Superintendent for recording its arrival. The Customs will record arrival of goods only after the full consignment with duly numbered packages, is received inside the Export Shed. The goods under export be brought for the purpose of examination and for “Let Export” orders within 7 days of filing of the declaration at the Service Centre. In case of delay, a fresh declaration would need to be filed in the Service Centre.
4. Customs examination of Export Cargo
After entry of the goods inside the ICD the exporter or his agent would bring the goods to the Export Shed and contract the designated examination officer for the purpose of receipt of goods at the warehouse. The goods should be presented for examination only after the full consignment has been physically brought inside the Export She of the ICD. He should present th checklist and the declaration along with all original documents such as, Invoice, Letter of Credit, Purchase order and Packing List, etc. In case of factory-stuffed containers he should also bring a copy of the letter of AC Exports ICD permitting factory stuffing. he will also present the details of additional particulars, if any, listed out in Annexure-C. In case clubbing of consignment the fact should be clearly mentioned in Annexure –C. The examining officer will enter these details including the date of arrival of the whole consignment, and mark the Electronic Shipping Bill and additional documents to the Superintendent of the Export Shed, who will assign an examining officer for the shipment and intimate the officer’s name and packages to be examined on the checklist and return it to the exporter or his agent. The examination officer will inspect/ examine the shipment and enter his report in the system. There will be no need for a written examination report. He will then mark the Electronic Shipping Bill along with all original documents and checklist to the Superintendent of Export Shed. If the Superintendent is satisfied that the particulars entered in the system conform to the description given in the original document and physical examination, he will be proceed to allow “Let Export” order for the shipment and inform the exporter or his agent. The checklist and the declaration along with all original document will be retained by the Superintendent. In case of any variation between the declaration in the Shipping Bill and physical document/examination report, the Superintendent of the warehouse will mark the Electronic Shipping Bill to the Assistant Commissioner of Customs (Export). He will also forward the document physically to Assistant Commissioner of Customs (Export) and instruct the exporter or his agent to meet the Assistant Commissioner for appropriate action. In case the exporter agrees with the view of the Department the Shipping Bill would be processed accordingly. Where, however, the exporter disputes the view of the Department, principles of natural justice would need to be followed before finalizing the issue.”
15. Learned counsel would contend that the only question which was required to be considered is as to whether the date of arrival of goods would be 1st April 2000 or 31st March 2000. In this connection, our attention has been drawn to the afore-mentioned order dated 27th March 2000:
“2. Goods pertaining to all the above said 8 Shipping Bills were to be stuffed in one container. Permission was, therefore, required from the concerned Assistant. Commissioner (Exports) for clubbing of Shipping Bills particularly when the consignor and the consignee were the same in all the 8 Shipping Bills. The goods pertaining to the said 8 Shipping Bills were partially received on 29th March 2000 in the CONCOR shed and the balance on 31st March 2000 at 18.00 Hrs. Alert check was also registered on the same dates.
Since it was the case of clubbing of consignments, the CHA could not get the “goods arrival” recorded on 31st March 2000, in EDI system apparently because the goods arrived on that date in CONCOR shed late i.e at 1800 Hrs. It is pertinent to mention that “Package Details” are also required for getting the goods arrival recorded in EDI system. The system then marks the package numbers for carrying out detailed examination out of the package details fed in it. Such package details were apparently not available with CHA till 1800 hrs on 31st March 2000. Permission for clubbing was, however, granted after a reasoned application was put up by the CHA/exporter on 1st April 2000.
16. It was submitted that for the purpose of the payment of the debts, the procedures are required to be strictly followed. Reliance in this connection has been placed on S.B. International Ltd. etc. v. Asstt. Director of General of F.T. and Ors., and Mihir Textils Ltd. v. Collector of Customs, Bombay, .
17. Clause 15.5 of the Exports and Import Policy whereupon reliance has been placed by the learned counsel for the petitioner, in our opinion, has no relevance to the fact of the matter. A bare perusal of the same would clearly go to show that the same deals with the date of shipment/dispatch in respect of exports and therein the respective dates have been mentioned depending upon the mode of transport as specified therein.
18. The subsequent statement made therein which is in the nature of a proviso, therefore, will have to be read in the context of the main provisions namely, mode of transportation. It is not in dispute that the respondents have laid down the procedures as regards computerized processing of shipping bills under the Indian Customs, EDI System (Export) at ICD, PatparGanj. The said procedure appears to have been made known to the pubic by Public Notice No. 13/1998 dated 20th March 1998 issued by the Commissioner of Customs at ICD Tughlakabad, New Delhi.
19. Rule 3 of the said Rules, as noticed hereinbefore, clearly shows that after the CWC receives the goods, the exporter or his agency will present the case to Inspector or Superintendent for recording its arrival and such recording of arrival of goods would be made only after a full consignment with duly numbered packages is received in the Export Shed. From the findings of fact arrived at by the Dy. Commissioner of Customs, as contained in his order dated 27th march 2001, it is clearly seen that the consignment not only arrived at 18.00 hours but the same was not accompanied with the duly numbered packages, as was required under the rules.
20. In that view of the matter, the question of the goods having been received on 31st March 2000 and such details having been furnished on 1st April 2000, the question of the petitioner getting the benefit of the old customs duty as on 31st March 2000, could not arise. The question as to at what rate the customs duty shall be payable in terms of the existing policy will depend upon the fulfilllment of all the conditions required therefore. If the petitioners have not been able to fulfill the requisite condition particularly when the consignments contain eight shipping bills and which were to be exported in one container, the petitioners cannot take advantage of their own wrong by not complying with the procedures laid down therefore. For the foregoing reasons, the doctrine of “Legitimate Expectation” would have no role to play in the matter.
21. The Apex Court in S.B. International Ltd. etc. v. Asstt. Director of General of F.T. and Ors. (supra), laid down the law in the following terms:
“8. The first question in these appeals is whether a vested right accrued to the appellant for issuance of advance licenses as per the value addition norm in vogue on the date of filing of he said applications the moment it made those applications and whether any subsequent change in policy effected before the issuance of licenses, is not applicable to such licenses. For answering this question, one has to look to the Policy itself, the material clauses of which have already been set out. The said provisions make it clear that the object behind the scheme is to enable the exporter to import raw materials, components etc. required fro the purpose of producing goods for export. It is a facility provided by the Government – an incentive. There is no right to advance license apart from the Policy. No citizen has a fundamental right to import, much less import free of duty. By granting the advance license, the licencing authority tells the licensee — “I am permitting you to import raw material, components etc. of a particular value free of duties but you must export goods of a particular value (determined s per value addition norm in vogue on the date of license) within a particular date. If you fail to do so, you will be liable to levy of penalties and other action according to law.” The duty free import of raw materials etc. is permitted to enable the exporter to sell his goods abroad at a more competitive price, thereby fetching precious foreign exchange for the country. Mere making of an application does not create any right in the applicant since he has no pre-existing right to such license. His right is only that which is given by the Policy. The situation could have been different if the Policy had said that a person exporting goods of a particular value shall be entitled to an import license of a particular value; in such a case, the export of goods can be said to create a right in t he applicant to get an import license of the specified value.”
22. The afore-said decision has been followed by the Apex Court in Mihir Textiles Ltd. v. Collector of Customs, Bombay (supra), wherein it has been held:
“7. The proviso prescribes, principally, three conditions to be satisfied for entitlement to the concessional rate shown in the aforesaid entry. They are–(1) Goods should have been imported against a specified contract registered with the appropriate Custos House; (2) Such registration should have been made in the manner prescribed by the regulations; (3) Registration of the contract should have been obtained before the order (granting permission for clearance of the goods) was passed. Unless all the three conditions are satisfied, no importer can claim, as a matter o fright, the concessional relief provided in the entry. In these cases the contracts were not registered at all before the order of clearance was passed. That fact is not disputed before us and as the appellants were aware of the position they chose to pay full customs duty for making the clearance.”
23. In the instant case, as reliance placed by the learned counsel for the petitioner upon the policy circular dated 10th July 1998 does not have much relevance inasmuch as in terms thereof not only the goods are required to be handed over to the Customs Authorities prior to the date of notification for examination but such examination was required for clearance for exports. The said clarification must be read having regard to the necessity to fulfill the requirements of handing over the consignments.
24. Furthermore, the findings arrived at by the concerned respondents in the order dated 27th March 2001 are informed by reasons. In the said order, findings of fact have been arrived at. This court in exercise of its jurisdiction under Article 226 of the Constitution of India would not normally interfere with such findings of fact unless it is shown that the same are wholly irrational. Keeping in view the facts and circumstances of this case, we are not in a position to agree with the submissions made by the learned counsel for the petitioner to the effect that the said order suffers from any legal infirmity or otherwise suffers from the vice of ‘Wednesbury’s unreasonableness’.
25. For the reasons afore-mentioned, we do not find any merit in this writ petition which is accordingly dismissed but in the facts and circumstances of this case, there shall be no order as to costs.