{"id":10262,"date":"2011-03-03T00:00:00","date_gmt":"2011-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/piramal-glass-limited-vs-the-union-of-india-on-3-march-2011"},"modified":"2016-11-24T01:51:09","modified_gmt":"2016-11-23T20:21:09","slug":"piramal-glass-limited-vs-the-union-of-india-on-3-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/piramal-glass-limited-vs-the-union-of-india-on-3-march-2011","title":{"rendered":"Piramal Glass Limited vs The Union Of India on 3 March, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Piramal Glass Limited vs The Union Of India on 3 March, 2011<\/div>\n
Bench: J.P. Devadhar, Mridula Bhatkar<\/div>\n
                                     1                               wp10079-10-jud\n\n\n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                            \n                        CIVIL APPELLATE JURISDICTION\n\n                        WRIT PETITION NO.10079 OF 2010\n\n\n\n\n                                                    \n    Piramal Glass Limited                                 ]\n    (formerly known as Gujarat Glass Limited)             ]\n\n\n\n\n                                                   \n    having their registered office Nicholas               ]\n    Pirmal Tower, Peninsula Corporation Park,             ]\n    Ganpatrao Kadam Marg, Lower Parel,                    ]\n\n\n\n\n                                        \n    Mumbai.               ig                              ]       ..Petitioner\n\n\n                 V\/s.\n                        \n    1.    The Union of India                              ]\n          (Through the Secretary, Ministry of Law         ]\n      \n\n\n          and Justice Department of Legal Affairs         ]\n   \n\n\n\n          Branch Secretariat, Aaykar Bhavan               ]\n          Annex, 2nd Floor, New Marine Lines,             2]\n          Mumbai - 420 020.                               ]\n\n\n\n\n\n                                                          ]\n    2.    The Director General of Foreign Trade,          ]\n          Government of India, Ministry of                ]\n          Commerce & Industry, Department                 ]\n\n\n\n\n\n          of Commerce, Udyog Bhawan,                      ]\n          New Delhi - 110 011                             ]\n                                                          ]\n    3.    The Zonal Joint Director General of             ]\n          Foreign Trade, New CGO Building,                ]\n          Churchgate, Mumbai - 400 020.                   ]\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 17:02:08 :::\n                                     2                                wp10079-10-jud\n\n    4.    The Foreign Trade Development Officer,          ]\n          New CGO Building, Churchgate,                   ]\n\n\n\n\n                                                                            \n          Mumbai - 400 020.                               ]\n                                                          ]\n\n\n\n\n                                                    \n    5.    The Commissioner of Customs (Export             ]\n          Promotion) having his office at Jawahar         ]\n          Customs House, Nhava Sheva,                     ]\n\n\n\n\n                                                   \n          Dist. Raigadh.                                  ]       ..Respondents.\n\n\n    Mr. V. Sridharan with Mr. Prakash Shah and Mr. Jas Sanghvi i\/b. PDS\n\n\n\n\n                                       \n    Legal for the appellant.\n                            \n    Mr. D.J. Khambata, Additional Solicitor General with Mr. Rui Rodriques\n    and Mr.A.S. Rao for the respondents.\n                           \n          CORAM : J.P. DEVADHAR AND MRS. MRIDULA BHATKAR, JJ.\n\n          JUDGMENT RESERVED ON               : 25TH FEBRUARY, 2011\n      \n\n\n          JUDGMENT PRONOUNCED ON : 3RD MARCH, 2011\n   \n\n\n\n    JUDGMENT (PER J.P. DEVEDHAR, J.)\n<\/pre>\n
    1)           Rule, returnable forthwith. By consent, the petition is taken<\/p>\n
    up for final hearing.\n<\/p>\n
    2)           The petitioner is aggrieved by the communication dated<\/p>\n
    03\/05\/2010 issued by the Director General of Foreign Trade (DGFT) as<\/p>\n
    also 11 orders in original all dated 26\/11\/2010 passed by the Jt. DGFT,<\/p>\n
    Mumbai.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:02:08 :::<\/span><\/p>\n
                                      3                                 wp10079-10-jud\n\n    3)           By communication dated 03\/05\/2010 the DGFT has\n\n<\/pre>\n
    informed the Jt. DGFT, Mumbai that during the period 2004-05, Duty<\/p>\n
    Free Replenishment Certificates (‘DFRC’ for short) ought to have been<\/p>\n
    issued to the petitioner, for import of duty free inputs which were set out<\/p>\n
    in the Standard Input Output Norm (SION) notified by the DGFT on the<\/p>\n
    date of exports and not as per the SION notified subsequent to the<\/p>\n
    exports. Based on the above communication, the Jt. DGFT, Mumbai by<\/p>\n
    11 orders in original all dated 26\/11\/2010 has demanded duty with<\/p>\n
    penalty from the petitioner in respect of the ‘Formers’ imported duty free<\/p>\n
    by the holder of the DFRC’s issued to the petitioner on the ground that<\/p>\n
    the ‘Formers’ were not covered under the SION notified by the DGFT on<\/p>\n
    the date of exports effected by the petitioner.\n<\/p>\n
    4)           Ordinarily, we would have relegated the petitioner to avail<\/p>\n
    the alternate remedy of appeal against the orders in original dated<\/p>\n
    26\/11\/2010 which are impugned in this Writ Petition. However, since the<\/p>\n
    said orders in original are based on the communication issued by the<\/p>\n
    DGFT on 3\/5\/2010 and the validity of the said communication is<\/p>\n
    challenged, we have deemed it proper to entertain the Writ Petition and<\/p>\n
    decide the issue on merits.\n<\/p>\n
    5)           The petitioner is engaged in the business of manufacture<\/p>\n
    and export of glass bottles, perfumary bottles, vials, etc. During the<\/p>\n
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\n                                     4                              wp10079-10-jud<\/p>\n
    period 2004-05 the petitioner had exported several consignments of<\/p>\n
    glass bottles and opted for DFRC licences.\n<\/p>\n
    6)          Under the EXIM Policy 2002-2007 the exporters were<\/p>\n
    eligible for incentives by way of Advance licence \/ DFRC \/ DEPB (Duty<\/p>\n
    Exemption Pass Book).      Advance licence permits duty free import of<\/p>\n
    inputs which are physically incorporated in the export product. DFRC \/<\/p>\n
    DEPB licences permit duty free replenishment of inputs used in the<\/p>\n
    export product. In the present case, we are concerned with the duty free<\/p>\n
    import of inputs under DFRC’s issued to the petitioner.         Para 4.1, 4.2,<\/p>\n
    4.2.3 and 4.2.4 of 2002-2007 policy are relevant for deciding the issues<\/p>\n
    raised in the petition and the same are reproduced hereinbelow:-\n<\/p>\n
    “4.1 The Duty Exemption Scheme enables duty free import of inputs
\n          required for export production.    An Advance Licence is issued
\n          under Duty Exemption Scheme. The Duty Remission Scheme<\/p>\n
          enables post export replenishment \/ remission of duty on inputs
\n          used in the export product. Duty Remission scheme consist of (a)
\n          DFRC and (b) DEPB. DFRC permits duty free replenishment of
\n          inputs used in the export product.     The DEPB scheme allows<\/p>\n
          drawback of import charges on inputs used in the export product.\n<\/p>\n
    4.2   DFRC is issued to a merchant-exporter or manufacturer-exporter
\n          for the import of inputs used in the manufacture of goods without
\n          payment of basis customs duty, and special additional duty.
\n          However, such inputs shall be subject to the payment of additional
\n          customs duty equal to the excise duty at the time of import.\n<\/p>\n
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                                       5                                 wp10079-10-jud<\/p>\n
    4.2.3 DFRC shall be issued only in respect of products covered under<\/p>\n
          the Standard Input Output Norms as notified by DGFT. However,
\n          in respect of Standard Input Output Norms which are subject to<\/p>\n
          “actual user” condition or where the input(s) is allowed with prior
\n          import condition or for import of fuel under the general norms,
\n          DFRC shall be issued with actual user condition for these inputs.\n<\/p>\n
          In cases where Standard Input Output Norms allow import of
\n          Acetic Anhydride, Ephedrine and Pseudo Ephedrine, DFRC shall
\n          be issued provided these items are specifically deleted from the<\/p>\n
          list of import items.\n<\/p>\n
    4.2.4 DFRC shall be issued for import of inputs as per SION as<\/p>\n
          indicated in the shipping bills.      The validity of such licences shall
\n          be 18 months. DFRC and or the material(s) imported against it
\n          shall be freely transferable.      However, DFRC with actual user<\/p>\n
          condition or the material(s) imported against it shall not be
\n          transferable. ”\n<\/p>\n
    7)           From the aforesaid policy provisions it is clear that after<\/p>\n
    export, the exporters are issued DFRC’s for import of inputs used in the<\/p>\n
    export product, which are covered under the SION notified by the DGFT<\/p>\n
    and also indicated in the shipping bills.\n<\/p>\n
    8)           As per the SION notified by the DGFT, originally six inputs<\/p>\n
    eligible for duty free import under heading ‘Chemical & Allied Product SI<\/p>\n
    No. A3016’ in respect of the products exported by the petitioner. By a<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 17:02:08 :::<\/span>
\n                                      6                              wp10079-10-jud<\/p>\n
    Public Notice dated 12\/04\/2004 the DGFT amended the SION so as to<\/p>\n
    include two more inputs viz. “Formers’ & ‘Packing material’ under SI No.<\/p>\n
    A3016.    Thus, as per the amended SION, an exporter of glass bottles<\/p>\n
    became entitled to import eight inputs enumerated in entry A3016 of<\/p>\n
    SION without payment of duty.\n<\/p>\n
    9)           In the present case, the petitioner had applied for DFRC’s<\/p>\n
    from time to time after the SION was amended on 12\/4\/2004.                  In the<\/p>\n
    said applications, the petitioner claimed DFRC’s for duty free import of all<\/p>\n
    the eight inputs used in the products exported prior to 12\/4\/2004 as also<\/p>\n
    exported subsequent to 12\/4\/2004. The licensing authority under the<\/p>\n
    DGFT accordingly issued several DFRC’s during the period 2004-05.\n<\/p>\n
    The said DFRC’s specifically permitted duty free import of all the eight<\/p>\n
    items including Formers & packing materials irrespective of the fact that<\/p>\n
    the petitioner had exported goods prior to 12\/04\/2004 or subsequent to<\/p>\n
    12\/4\/2004.\n<\/p>\n
    10)          Under the EXIM policy 2002-07 the DFRC’s being freely<\/p>\n
    transferable, the petitioner transferred the DFRC’s to third parties for<\/p>\n
    consideration.   Those third parties have imported inputs including<\/p>\n
    formers & packing materials duty free under the DFRC’s issued to the<\/p>\n
    petitioner by the office of the DGFT, within the validity period i.e. within<\/p>\n
    24 months from the issuance of DFRC’s.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:02:08 :::<\/span><\/p>\n
                                     7                               wp10079-10-jud\n\n\n\n    11)          Subsequently, on 18\/12\/2007 it appears that the Audit\n\n\n\n\n                                                                           \n<\/pre>\n
    Authority raised an objection to the effect that Formers & packing<\/p>\n
    materials which were included in the SION by Public Notice dated<\/p>\n
    12\/4\/2004 could not be allowed to be imported under DFRC’s where the<\/p>\n
    exports were made prior to 12\/4\/2004. Thereupon the Jt. DGFT sought<\/p>\n
    clarification in that behalf from the DGFT.              By the impugned<\/p>\n
    communication dated 3\/5\/2010 the DGFT clarified thus :-\n<\/p>\n
          “To,<\/p>\n
           The Jt. DGFT,<\/p>\n
           Mumbai<\/p>\n
           Subject: Classification regarding effective date of import against
\n                    DFRC – M\/s. Gujarat Glass Ltd.\n<\/p><\/blockquote>\n
          Sir,<\/p>\n
                       With reference to this office letter of even number
\n          dated 26-4-2010 on the above mentioned subject, I am directed to
\n          further clarify that SION available on the date of export is required<\/p>\n
          to be taken into consideration and not that as per SION modified
\n          subsequent to exports. DFRC being cost export replenishment
\n          scheme has to be linked to the date of exports. ”\n<\/p><\/blockquote>\n
    12)          Accordingly, 11 show cause notices were issued in January-\n<\/p>\n
    February, 2010 calling upon the petitioner to show cause as to why<\/p>\n
    customs duty with interest and penalty should not recovered from the<\/p>\n
    petitioner in respect of Formers & Packing materials imported under the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:02:08 :::<\/span>
\n                                       8                            wp10079-10-jud<\/p>\n
    DFRC’s issued to the petitioner during the period 2004-2005, because<\/p>\n
    ‘Formers \/ packing materials’ were included in the SION on 12\/4\/2004,<\/p>\n
    whereas the exports were made prior to 12\/4\/2004 and in such cases<\/p>\n
    formers \/ packing materials could not be allowed duty free import under<\/p>\n
    the DFRC’s issued to the petitioner.\n<\/p>\n
    13)           The petitioner objected to the issuance of the show cause<\/p>\n
    notices as also the claim to recover duty with interest and penalty.\n<\/p>\n
    However, rejecting the contentions of the petitioner, 11 impugned orders<\/p>\n
    in original were passed on 26\/11\/2010 confirming duty, interest and<\/p>\n
    imposed penalty upon the petitioner and its Directors.       Challenging the<\/p>\n
    communication dated 3\/5\/2010 and also 11 orders in original dated<\/p>\n
    26\/11\/2010 the present petition is filed.\n<\/p>\n
    14)           Mr. Sridharan, learned counsel appearing on behalf of the<\/p>\n
    petitioner submitted that the communicated dated 3\/5\/2010 is contrary to<\/p>\n
    the Exim policy, because the policy provides for duty free importation of<\/p>\n
    inputs used in the export product and it is not in dispute that formers &<\/p>\n
    packing materials are inputs used in the product exported by the<\/p>\n
    petitioner.   He submitted that para 4.2.3 of the policy ensures that the<\/p>\n
    DGFT verifies the inputs used in the export product and notifies the<\/p>\n
    same in the SION so that the DFRC is issued only for import of inputs<\/p>\n
    used in the export product and not any other inputs.           Similarly, para<\/p>\n
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\n                                      9                              wp10079-10-jud<\/p>\n
    4.2.4 of the policy requires that the DFRC’s are issued for duty free<\/p>\n
    import of inputs used in the export product which are notified in the SION<\/p>\n
    and indicated in the shipping bills. The object is to ensure that the<\/p>\n
    exporter in the shipping bills submitted to the customs authorities<\/p>\n
    declares that the exports are made with a view to import inputs used in<\/p>\n
    the export product which are covered under the SION notified by the<\/p>\n
    DGFT.    In the present case, it is not in dispute that the Formers &<\/p>\n
    packing materials are inputs used in the manufacture of glass bottles<\/p>\n
    and, therefore, the petitioner was entitled to and in fact allowed to import<\/p>\n
    the same duty free under the DFRC’s issued to the petitioner. The fact<\/p>\n
    that the DGFT recognised that the Formers \/ packing materials are<\/p>\n
    inputs used in the export product and notified the same in the SION on<\/p>\n
    12\/4\/2004, it does not mean that prior to 12\/4\/2004 the Formers \/<\/p>\n
    packing materials were not inputs used in the export product.\n<\/p>\n
    15)         Mr. Sridharan further submitted that the inputs covered<\/p>\n
    under the SION as on the date of issuance of DFRC and not on the date<\/p>\n
    of export are relevant. In support of the above contention, reliance is<\/p>\n
    placed on the decision of the         Apex Court in the case of S.B.\n<\/p>\n
    International Ltd. V\/s. Asstt. Director Foreign Trade reported in (1996) 62<\/p>\n
    E.L.T. 164 (S.C.) and a decision of this Court in the case of Sonia<\/p>\n
    Fisheries V\/s. Union of India reported in (1997) 90 E.L.T. 22 (Bom).\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:02:08 :::<\/span><\/p>\n
                                    10                              wp10079-10-jud\n\n    16)         It is further submitted on behalf of the petitioner that in the\n\n<\/pre>\n
    present case the DFRC’s were issued by construing the policy provisions<\/p>\n
    to the effect that the inputs covered under the SION as on the date of<\/p>\n
    issuing the licence is relevant.    On the basis of the validly issued<\/p>\n
    DFRC’s duty free imports have been made by the third parties to whom<\/p>\n
    the said DFRC’s were legally transferred. Assuming that the authorities<\/p>\n
    issuing the DFRC’s had wrongly construed the provisions of the policy,<\/p>\n
    the imports already made as per the DFRC’s cannot be faulted and the<\/p>\n
    DGFT cannot issue a clarification so as to adversly affect the imports<\/p>\n
    already made pursuant to the validly issued DFRC’s. In the present<\/p>\n
    case, neither the DFRC’s      are cancelled nor the items specifically<\/p>\n
    included in the DFRC’s have been deleted.      Relying on the decision of<\/p>\n
    this Court in the case of A.V. Industries V\/s. Union of India reported in<\/p>\n
    (2005) 187 ELT 9 (Bom), it is contended that even if there is any<\/p>\n
    bonafide mistake on the part of the authority issuing the DFRC’s, the<\/p>\n
    petitioner cannot be penalised for that bonafide mistake committed by<\/p>\n
    the licensing authorities. The alleged mistake in the DFRC’s, if any,<\/p>\n
    were corrected in time by deleting the two items, the importers to whom<\/p>\n
    DFRC’s were sold would have imported items other than Formers \/<\/p>\n
    Packing materials.   Therefore, it is contended that the communication<\/p>\n
    dated 3\/5\/2010 being contrary to the policy be quashed and set aside.\n<\/p>\n
    Consequently, the orders in original dated 26\/11\/2010 passed on the<\/p>\n
    basis of the communication dated 3\/5\/2010 seeking to recover duty,<\/p>\n
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\n                                      11                            wp10079-10-jud<\/p>\n
    interest and penalty from the petitioner who is not even the importer<\/p>\n
    deserve to be quashed and set aside.\n<\/p>\n
    17)         Mr.Khambata, learned Additional Solicitor General (‘ASG’ for<\/p>\n
    short) appearing on behalf of the respondents, on the other hand<\/p>\n
    submitted that the communication dated 3\/5\/2010 merely clarifies the<\/p>\n
    policy provisions as they stood at the relevant time and, therefore, no<\/p>\n
    fault can be found with the communication dated 3\/5\/2010. As regards<\/p>\n
    the validity of the orders in original all dated 26\/11\/2010, he submitted<\/p>\n
    that the petitioner must be directed to avail the statutory remedy of<\/p>\n
    appeal provided under the Act.\n<\/p>\n
    18)         On the merits of the case relating to the issuance of DFRC’s<\/p>\n
    permitting the duty free import of ‘Formers \/ Packing materials’, the<\/p>\n
    learned ASG submitted that admittedly on the dates on which exports<\/p>\n
    were made ‘Formers \/ packing materials’ were not included in the SION.\n<\/p>\n
    As per para 4.2.3 of the 2002-2007 policy, DFRC’s have to be issued<\/p>\n
    only in respect of those inputs which are included in the SION. Unlike<\/p>\n
    Advance licences, the DFRC’s are issued for import of inputs used in the<\/p>\n
    product which are already exported.    Therefore, it is the date of export<\/p>\n
    which is relevant for issuing DFRC and on the date of export if the input<\/p>\n
    is not covered under SION, the said input cannot be allowed to be<\/p>\n
    imported duty free under the DFRC. In other words, since ‘Formers’<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:02:08 :::<\/span>
\n                                      12                              wp10079-10-jud<\/p>\n
    were not included in the SION on the date of export DFRC could not be<\/p>\n
    issued to the petitioner for import of ‘Formers’.\n<\/p>\n
    19)          It is further contended by the learned ASG that para 4.2.4 of<\/p>\n
    the 2002-2007 policy clearly provides that the DFRC shall be issued for<\/p>\n
    import of inputs as per SION as indicated in the shipping bills. The<\/p>\n
    petitioner had indicated in the shipping bills that six items are inputs<\/p>\n
    which are used in the export product and the petitioner had not included<\/p>\n
    ‘Formers \/ packing materials’ as inputs used in the export product.\n<\/p>\n
    Therefore, DFRC’s could not be issued for duty free import of ‘Formers<\/p>\n
    packing materials’ as they were not indicated in the shipping bills. The<\/p>\n
    fact that the said two items were erroneously included in the DFRC’s, it<\/p>\n
    does not mean that the said two items could be imported duty free,<\/p>\n
    especially when the said two items were not included in SION on the<\/p>\n
    date of export and the said two items were not declared in the shipping<\/p>\n
    bills.   The submission is that in respect of the exports effected upto<\/p>\n
    11\/4\/2004 DFRC’s could not be issued for duty free import of ‘Formers \/<\/p>\n
    packing materials’ and, therefore, duty with interest would be recovered<\/p>\n
    even if the said items were cleared duty free under the DFRC’s wrongly<\/p>\n
    issued to the petitioner.\n<\/p>\n
    20)          Relying on a Division Bench decision of the Madras High<\/p>\n
    Court in the case of Adani Exports Ltd. V\/s. Union of India reported in<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:02:09 :::<\/span>
\n                                     13                              wp10079-10-jud<\/p>\n
    (2003) 151 ELT 520 (Mad) which is upheld by the Apex Court, the<\/p>\n
    learned ASG submitted that DFRC’s could be issued for import of duty<\/p>\n
    free inputs which are specifically set out in the SION on the date of<\/p>\n
    exports and not on the date of issuance of DFRC’s. In the present case,<\/p>\n
    the petitioner in his application had erroneously claimed DFRC on<\/p>\n
    ‘Formers \/ Packing materials’ even though the same were not covered<\/p>\n
    under SION on the date of export.      The DFRC’s were granted on the<\/p>\n
    basis of the application made by the petitioner. The error committed in<\/p>\n
    issuing DFRC’s for duty free import of Formers \/ Packing materials came<\/p>\n
    to light when the Audit Authority raised the objection. The said objection<\/p>\n
    was confirmed by the DGFT vide communication dated 3\/5\/2010. The<\/p>\n
    petitioner while making the applications for DFRC’s had executed an<\/p>\n
    undertaking to the effect that the contents of the application if proved to<\/p>\n
    be incorrect or false, then the petitioner would be liable for penal action<\/p>\n
    or other consequences.     Since the claim of the petitioner for duty free<\/p>\n
    import of ‘Formers \/ Packing materials’ which were not included in the<\/p>\n
    SION on the date of export is found to be incorrect, the petitioner in<\/p>\n
    terms of the undertaking given, is liable to pay duty, interest and also<\/p>\n
    liable for penalty. The fact that the duty demand on packing materials<\/p>\n
    has been dropped as the same are allowable as per General Policy for<\/p>\n
    ‘packing material’ under the Hand Book of Procedures, Vol II for SION,<\/p>\n
    the petitioner cannot escape liability to pay duty with interest and penalty<\/p>\n
    on the ‘formers’ which were erroneously allowed importation on account<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:02:09 :::<\/span>
\n                                     14                               wp10079-10-jud<\/p>\n
    of the misdeclaration made by the petitioner.      Accordingly, the learned<\/p>\n
    ASG submitted that no fault can be found with the communication dated<\/p>\n
    3\/5\/2010 as well as the orders in original all dated 26\/11\/2010.\n<\/p>\n
    21)         We have carefully considered the rival submissions.\n<\/p>\n
    22)         The basic dispute in the present case is, whether DFRC<\/p>\n
    under the 2002-2007 policy was liable to be issued in respect of the<\/p>\n
    inputs which are covered under the SION on the date of export or in<\/p>\n
    respect of inputs covered under the SION on the date of issuing DFRC ?\n<\/p>\n
    23)         Perusal of para 4.1 and para 4.2 of the EXIM policy, 2002<\/p>\n
    -2007 clearly shows that DFRC’s were to be issued for duty free import<\/p>\n
    of inputs used in the export product.     Since the DFRC’s were issued<\/p>\n
    after the product is exported, to prevent any abuse, the policy provides<\/p>\n
    that the DGFT must approve the inputs that are used in the export<\/p>\n
    product. That is why para 4.2.3 of the policy provides that DFRC shall<\/p>\n
    be issued only in respect of the products covered under the SION as<\/p>\n
    notified by the DGFT.    Para 4.2.3 of the policy cannot be construed to<\/p>\n
    mean that the DGFT has the discretion not to include an input used in<\/p>\n
    the export product in the SION. In other words, the policy provides that<\/p>\n
    all inputs used in the export product are eligible for duty free import to<\/p>\n
    the extent permitted under the DFRC, however, the said inputs must be<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:02:09 :::<\/span>
\n                                    15                               wp10079-10-jud<\/p>\n
    noticed by the DGFT.\n<\/p>\n
    24)         Since the exports as well as the imports are regulated by the<\/p>\n
    customs authorities, para 4.2.4 of the policy provides that DFRC shall be<\/p>\n
    issued for import of inputs as per SION as indicated in the shipping bills.\n<\/p>\n
    This para further ensures that the exporter while submitting shipping bills<\/p>\n
    to the customs authorities declares that the exports are effected with a<\/p>\n
    view to import inputs used in the export product which are notified in the<\/p>\n
    SION.\n<\/p>\n
    25)         Where the DGFT by a public notice amends the existing<\/p>\n
    SION by adding an input used in the export product, then the exporter is<\/p>\n
    entitled to import that input duty free to the extent permitted under the<\/p>\n
    DFRC. No doubt that until an input is is notified under the SION, DFRC<\/p>\n
    cannot be issued in respect of the input. But once the DGFT notifies an<\/p>\n
    input under the SION as an input used in the export product, then there<\/p>\n
    is no reason as to why DFRC cannot be issued in respect of that input,<\/p>\n
    even if the product was exported prior to the issuance of the public<\/p>\n
    notice by the DGFT. In other words, for issuing DFRC what is relevant<\/p>\n
    is that the inputs must be notified under the SION and not the date on<\/p>\n
    which it is notified. Thus, reading the policy provisions as a whole, it is<\/p>\n
    evident that DFRC has to be issued for duty free import of inputs used in<\/p>\n
    the export product which are notified under the SION and the fact that an<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:02:09 :::<\/span>
\n                                      16                               wp10079-10-jud<\/p>\n
    input was not notified on the date of export cannot be a ground to deny<\/p>\n
    duty free import of that input under the DFRC, because the object of the<\/p>\n
    policy was to allow duty free import of the inputs used in the export<\/p>\n
    product and not restricted to the inputs notified on the date of export.\n<\/p>\n
    26)          The fact that the ‘Formers \/ packing materials’ are inputs<\/p>\n
    used in the product exported by the petitioner is confirmed by the Central<\/p>\n
    Excise authorities.    Even the DGFT has confirmed, though belatedly,<\/p>\n
    that ‘Formers \/ packing materials’ are inputs used in the product<\/p>\n
    exported by the petitioner. There is nothing in the policy to suggest that<\/p>\n
    DFRC has to be issued in respect of the inputs notified under the SION<\/p>\n
    on the date of export. Even the public notice dated 12\/4\/2004 does not<\/p>\n
    state that the ‘Formers \/ packing materials’ shall be treated as inputs<\/p>\n
    used in the export product with effect from 12\/4\/2004. Therefore, the<\/p>\n
    petitioner was entitled to seek DFRC for duty free import of ‘Formers \/<\/p>\n
    packing materials’ along with other inputs set out in the SION and<\/p>\n
    consequently, issuance of DFRC’s for duty free import of ‘Formers \/<\/p>\n
    packing materials’ in respect of exports effected prior to 12\/4\/2004<\/p>\n
    cannot be faulted.\n<\/p>\n
    27)          It is contended on behalf of the revenue that if the argument<\/p>\n
    of the petitioner that the date of export is not the relevant date for issuing<\/p>\n
    DFRC is accepted, then, it would mean that where subsequent to the<\/p>\n
    export an input is deleted from SION, then, DFRC cannot be issued in<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:02:09 :::<\/span>
\n                                     17                               wp10079-10-jud<\/p>\n
    respect of that input even though the said input was covered under the<\/p>\n
    SION on the date of export.          There is no merit in this argument,<\/p>\n
    because, the DGFT can delete an input covered under the SION only if<\/p>\n
    the DGFT comes to the conclusion that its earlier decision to include that<\/p>\n
    input under SION was erroneous. In such a case, if the DFRC was not<\/p>\n
    issued in respect of the exports effected prior to the deletion, then the<\/p>\n
    question of issuing DFRC after the deletion of the input does not arise at<\/p>\n
    all.   In the present case, it is not in dispute that the Formers \/ Packing<\/p>\n
    materials are inputs used in the product exported by the petitioner. The<\/p>\n
    fact that the DGFT notified the same on 12\/4\/2004 does not mean that<\/p>\n
    prior to 12\/4\/2004 the said items were not inputs used in the export<\/p>\n
    product. When the object of DFRC is to permit duty free import of inputs<\/p>\n
    used in the export product, that object cannot be defeated on the ground<\/p>\n
    that the input was notified under the SION subsequently and the same<\/p>\n
    was not indicated in the shipping bills submitted at the time of export.\n<\/p>\n
    28)           In the present case, even the authorised officer interpreted<\/p>\n
    the policy to mean that irrespective of the date of export once the<\/p>\n
    Formers \/ packing materials were notified as inputs used in the export<\/p>\n
    product DFRC licences have to be issued irrespective of the date of<\/p>\n
    export, and accordingly issued the DFRC’s in favour of the petitioner.\n<\/p>\n
    The very fact that even after the Audit Authority raised objection, the Jt.\n<\/p>\n
    DGFT deemed it fit to seek clarification from the DGFT clearly shows<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:02:09 :::<\/span>
\n                                      18                               wp10079-10-jud<\/p>\n
    that the issue was debatable and was not free from doubt.              Therefore,<\/p>\n
    the DGFT could not have issued clarification on 3\/5\/2010 so as to<\/p>\n
    prejudicially affect the interests of the exporters \/ third parties, who had<\/p>\n
    imported ‘Formers \/ packing materials’ on the basis of the DFRC’s issued<\/p>\n
    by the office of the Jt. DGFT several years ago. In other words, even if<\/p>\n
    it is held that the Licensing authorities were in error in interpreting the<\/p>\n
    provisions of the policy, in the facts of the present case, since the<\/p>\n
    DFRC’s have been fully utilized much prior to the realisation of the<\/p>\n
    mistake committed by the licensing authority, the petitioner cannot be<\/p>\n
    saddled with any liability in respect of imports already made.\n<\/p>\n
    29)          It is not the case of the revenue that the DFRC’s have been<\/p>\n
    issued on account of fraud or misrepresentation on the part of the<\/p>\n
    petitioner. The only grievance of the revenue is that the petitioner ought<\/p>\n
    not to have included ‘Formers \/ packing materials’ in the applications<\/p>\n
    seeking DFRC’s because on the date of export, neither the said items<\/p>\n
    were included in the SION nor the said items were indicated by the<\/p>\n
    petitioner in the shipping bills and, therefore, in terms of the undertaking<\/p>\n
    given at the time of export, the petitioner is liable to pay duty with interest<\/p>\n
    and also liable for penalty for importing ‘Formers’ duty free, because<\/p>\n
    ‘Formers \/ packing materials’ were not included in the SION on the date<\/p>\n
    on which the petitioner exported the manufactured products.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:02:09 :::<\/span><\/p>\n
                                     19                               wp10079-10-jud\n\n    30)          We see no merit in the above contention, because, the\n\n<\/pre>\n
    requirement of the policy that the DFRC has to be issued in respect of<\/p>\n
    inputs used in the export product which are covered under the SION and<\/p>\n
    indicated in the shipping bills is to ensure that inputs other than those<\/p>\n
    inputs used in the export product are not imported under the DFRC<\/p>\n
    licences.    In the present case, it is an admitted fact that ‘Formers \/<\/p>\n
    packing materials’ are inputs used in the export products not only by the<\/p>\n
    Central Excise authorities but also by the DGFT. Since these inputs<\/p>\n
    were not notified on the date of export, the same could not be indicated<\/p>\n
    in the shipping bills.   But, as soon as these inputs were notified under<\/p>\n
    the SION, the petitioner became entitled to import the same under the<\/p>\n
    DFRC. Therefore, the petitioner cannot be accused of being guilty of<\/p>\n
    misdeclaring the items for import in the applications seeking DFRC’s.\n<\/p>\n
    Neither the bonafides of the petitioner in making applications seeking to<\/p>\n
    import ‘Formers \/ packing materials’ under the DFRC’s are in doubt nor<\/p>\n
    the bonafides of the officer in issuing DFRC’s to the petitioner allowing<\/p>\n
    duty free import of ‘Formers \/ packing materials’ are in doubt. In such a<\/p>\n
    case, the action of the respondents in seeking to recover duty from the<\/p>\n
    petitioner on the ground that the import of those items, were erroneously<\/p>\n
    allowed under the DFRC’s cannot be sustained.\n<\/p>\n
    31)          It is surprising to note that even after the Audit objection and<\/p>\n
    clarification issued by the DGFT, till date the DFRC’s in question have<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:02:09 :::<\/span>
\n                                      20                             wp10079-10-jud<\/p>\n
    neither been declared to be invalid nor the items ‘Formers \/ packing<\/p>\n
    materials’ contained in the said DFRC’s have been deleted. So long as<\/p>\n
    the ‘Formers \/ packing materials’ continue to be covered under the<\/p>\n
    DFRC’s in question, the duty free imports under the DFRC’s cannot be<\/p>\n
    said to be contrary to law and consequently recovering any duty on<\/p>\n
    import of ‘Formers \/ packing materials’ under the said DFRC’s does not<\/p>\n
    arise at all.\n<\/p>\n
    32)             Strong reliance was placed by the counsel for the revenue<\/p>\n
    on the decision of the Madras High Court in the case of Adani Exports<\/p>\n
    (supra) wherein it is held that in the case of pass book scheme, the<\/p>\n
    credits have to be calculated only on the basis of the norms as they were<\/p>\n
    existing on the date of exports. In that case, Adani Exports had availed<\/p>\n
    the pass book scheme under the 1992-1997 policy and had exported<\/p>\n
    goods covered under Entry 7 of SION, under which they were entitled to<\/p>\n
    the credit of the customs duty payable on 227 kilos of vitamin mixes for<\/p>\n
    export of every metric ton of vitamin mixes. With effect from 1\/4\/1997<\/p>\n
    new EXIM police for 1997-2002 came into force under which pass book<\/p>\n
    scheme was discontinued by the Central Government.               Similarly, with<\/p>\n
    effect from 1\/4\/1997 new SION came into force wherein the entry<\/p>\n
    regarding vitamin mixes was bifurcated into vitamin mixes and mineral<\/p>\n
    mixes and the permissible quantity under the new SION for vitamin<\/p>\n
    mixes was 27 kg. for export of every metric ton of vitamin export. The<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:02:09 :::<\/span>
\n                                    21                              wp10079-10-jud<\/p>\n
    question was, whether Adani Exports who had exported goods under the<\/p>\n
    1992-97 policy and eligible to the credit of customs duty payable on 227<\/p>\n
    kgs. of vitamin mixes on export of every metric ton of vitamin mixes<\/p>\n
    could be denied that credit on the ground that under the new SION<\/p>\n
    which came into force with effect from 1\/4\/1997 the permissible quantity<\/p>\n
    was only 27 kg. per M.T. The Madras High Court answered the question<\/p>\n
    by holding that the entitlement of the petitioners therein to the credit<\/p>\n
    earned on account of the exports made during the period when the pass<\/p>\n
    book granted to them was valid, could not be set at naught by relying on<\/p>\n
    the subsequent SION norms which came into effect from 1\/4\/1997.\n<\/p>\n
    33)         The above decision of the Madras High Court does not in<\/p>\n
    any way support the case of the revenue. In that case, the vested right<\/p>\n
    accrued to the exporter on the date of export could be denied on account<\/p>\n
    of the subsequent change in the SION. In the present case, the vested<\/p>\n
    right on the date of export was to receive DFRC’s for duty free import of<\/p>\n
    inputs used in the export product as notified by the DGFT. The DGFT<\/p>\n
    has notified that the ‘Formers \/ packing materials’ are inputs used in the<\/p>\n
    export product. The fact that the public notice was issued on 12\/4\/2004<\/p>\n
    it does not mean that the ‘Formers \/ packing materials’ were not inputs<\/p>\n
    used in the products exported prior to 12\/4\/2004. The notification issued<\/p>\n
    on 12\/4\/2004 merely confirms the factual position, prevailing on the date<\/p>\n
    of export, namely the ‘Formers \/ packing materials’ were the inputs used<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:02:09 :::<\/span>
\n                                     22                              wp10079-10-jud<\/p>\n
    in the product exported by the petitioner. The said notification does not<\/p>\n
    impair the vested right of the petitioner but in fact augments the vested<\/p>\n
    right of the petitioner. Therefore, the decision of the Madras High Court<\/p>\n
    does not in any way prejudice the case of the petitioner.\n<\/p>\n
    34.         We find merit in the argument of the petitioner that assuming<\/p>\n
    the revenue is right in contending that ‘Formers \/ packing materials’<\/p>\n
    could not be imported duty free in respect of exports effected prior to<\/p>\n
    12\/4\/2004, then firstly, the licensing authorities could not to have issued<\/p>\n
    DFRC’s permitting duty free import of inputs including formers \/ packing<\/p>\n
    materials. Having issued DFRC and having allowed duty free import of<\/p>\n
    ‘Formers’ under DFRC, it is not open to the revenue to contend that the<\/p>\n
    duty free import is unauthorised.       Secondly, if the petitioner was<\/p>\n
    intimated about the alleged mistake in the DFRC’s, then the parties to<\/p>\n
    whom the DFRC’s were sold would have imported only those inputs<\/p>\n
    which are permissible for duty free import. Once the ‘Formers \/ packing<\/p>\n
    materials’ have been imported duty free as per the DFRC’s validity<\/p>\n
    issued by the licensing authorities and the said items have even now<\/p>\n
    continue to remain in the DFRC’s issued to the petitioner, the question of<\/p>\n
    demanding any duty on the ‘Formers \/ packing materials’ imported under<\/p>\n
    the said DFRC’s issued by the licensing authorities does not arise at all.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:02:09 :::<\/span><\/p>\n
                                   23                              wp10079-10-jud\n\n\n\n    35)         In the result, the communication dated 3\/5\/2010 as also the\n\n\n\n\n                                                                         \n<\/pre>\n
    11 orders in original all dated 26\/11\/2010 are quashed and set aside.\n<\/p>\n
    Rule is made absolute in the above terms with no order as to costs.\n<\/p>\n
    (MRS. MRIDULA BHATKAR, J.)                         (J.P. DEVADHAR, J.)\n\n\n\n\n                                      \n                       \n                      \n      \n   \n\n\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 17:02:09 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Piramal Glass Limited vs The Union Of India on 3 March, 2011 Bench: J.P. Devadhar, Mridula Bhatkar 1 wp10079-10-jud IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10079 OF 2010 Piramal Glass Limited ] (formerly known as Gujarat Glass Limited) ] having their registered office Nicholas ] […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-10262","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nPiramal Glass Limited vs The Union Of India on 3 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/piramal-glass-limited-vs-the-union-of-india-on-3-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Piramal Glass Limited vs The Union Of India on 3 March, 2011 - 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