{"id":215651,"date":"2009-09-18T00:00:00","date_gmt":"2009-09-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/companies-act-vs-union-of-india-on-18-september-2009"},"modified":"2016-04-25T15:41:21","modified_gmt":"2016-04-25T10:11:21","slug":"companies-act-vs-union-of-india-on-18-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/companies-act-vs-union-of-india-on-18-september-2009","title":{"rendered":"Companies Act vs Union Of India on 18 September, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Companies Act vs Union Of India on 18 September, 2009<\/div>\n
Bench: F.I. Rebello, D.G. Karnik<\/div>\n
                                   1\n\n     mgn\n\n             IN THE  HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                   \n                ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                           \n                    WRIT PETITION NO.871 OF 1994\n\n\n\n     M\/s.Biotor Industries Limited )\n\n\n\n\n                                          \n     a Company incrporated under  )\n\n     the provisions of the             )\n\n\n\n\n                                \n     Companies Act, 1956 having        )\n                   \n     its registered office at 13,  )\n\n     Sitafal Wadi, Mazgaon, Bombay )..PETITIONER\n                  \n           Vs,.\n      \n   \n\n\n\n     1.Union of India                  )\n\n     2.The Union Secretary             )\n\n\n\n\n\n       (Drawback) Government of        )\n\n       India, Ministry of Finance, )\n\n       Department of Revenue,          )\n\n\n\n\n\n       having his office at Jeevan )\n\n       Deep, Parliament Street,        )\n\n       New Delhi-110 001.              )\n\n     3.The Commissioner (Drawback) )\n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 15:05:53 :::\n                                    2\n\n       Government of    )\n\n       India, Ministry of Finance, )\n\n\n\n\n                                                                   \n       Department of Revenue,          )\n\n\n\n\n                                           \n       having his office at Jeevan )\n\n       Deep, Parliament Street,        )\n\n       New Delhi-110 001.              )\n\n\n\n\n                                          \n     4.Assistant Collector of          )\n\n       Customs, Draw Back Depart- )\n\n\n\n\n                                \n       -ment, having his office at )\n                    \n       New Customs House, Ballard )\n\n       Estate, Bombay-400 038.         )\n                   \n     5.Agricultural Marketing          )\n\n       Advisers to the Government )\n      \n\n       of India, Directorate           )\n   \n\n\n\n       of Marketing and Inspection )\n\n       Ministry of Food and            )\n\n       Agriculture, having his         )\n\n\n\n\n\n       Office at Nirman Bhavan,        )\n\n       Department of Rural             )\n\n\n\n\n\n       Development, Room No.527        )\n\n       New Delhi.                      )..RESPONDENTS\n\n     Mr. Pankaj A. Sawant with Ms. Trupti M. Kapadia and Mr. \n\n     V.C. Murlidharan i\/b. Joy Legal Consultants for the \n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 15:05:53 :::\n                                        3\n\n     petitioner.\n\n     Mrs.S.V. Bharucha for Respondent Nos. 1 and  5.\n\n\n\n\n                                                                      \n     Mr. R.G. Bhat with Mr. J.B. Mishra for Respondent Nos. 2 \n\n\n\n\n                                              \n     to 4.\n\n                           CORAM : FERDINO I. REBELLO &\n\n                                    D.G. KARNIK, JJ. \n<\/pre>\n
                             DATED : 18TH SEPTEMBER , 2009<\/p>\n
     ORAL JUDGMENT (PER FERDINO I. REBELLO, J.):\n<\/p>\n
           The   petitioners   are   exporters   of   Castor   Oil.     The <\/p>\n
     Government   of   India   framed   several   schemes.     Under   the <\/p>\n
     Scheme, goods which were described in Schedule II to the <\/p>\n
     Customs   and   Central   Excise   Duty   Drawback   Rules,   1971 <\/p>\n
     (hereinafter   referred   to   as   the   Drawback   Rules)   were <\/p>\n
     entitled to a drawback on the export of such goods.  The <\/p>\n
     Drawback Rules have been made in exercise of the powers <\/p>\n
     conferred   by   Section   75   of   the   Customs   Act,   1962   and <\/p>\n
     Section   37   of   the   Central   Excise   &   Salt   Act   which <\/p>\n
     hereinafter   shall   be   referred   to   the   Customs   Act   and <\/p>\n
     Central Excise Act respectively.\n<\/p>\n
     2.    By   the   present   petition   the   petitioners   are <\/p>\n
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\n                                         4<\/span><\/p>\n
     challenging the denial of duty draw back   on Castor Oil <\/p>\n
     exported   by   them   for   the   period   22\/23-6-1989   to   21st <\/p>\n
     December, 1990.\n<\/p>\n
     3.    By   a   Notification     dated   4th  July,   1964   issued   by <\/p>\n
     the Agricultural Marketing Adviser to the Government of <\/p>\n
     India it was decided that the export of goods specified <\/p>\n
     under   the   Schedule   would   not   be   permitted   unless   the <\/p>\n
     goods were graded under the provisions of the Vegetable <\/p>\n
     Oils   Grading   and   Marketing   Rules,   1955   and   Certificate <\/p>\n
     of   Inspection   was   issued   in   that   behalf.   From   the <\/p>\n
     Schedule   to   the   Notification,   both   “Castor   Oil”   and <\/p>\n
     “Castor Oil for Pharmaceutical purposes”   were included <\/p>\n
     in   the   Schedule.   By   the   Notification   of   4th  July,   1964 <\/p>\n
     an order of   prohibition was issued that effective from <\/p>\n
     15th July, 1964 export of goods specified in the Schedule <\/p>\n
     would   not   be   exported   unless   the     the   same     have   been <\/p>\n
     graded   in   accordance   with   the   provisions   of   the <\/p>\n
     Vegetable   Oils   Grading   and   Marketing   Rules,   1955   and <\/p>\n
     accompanied by a certificate of inspection to the effect <\/p>\n
     that they have been properly  graded and sealed with the <\/p>\n
     mark “Agmark”.\n<\/p>\n
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\n                                        5<\/span><\/p>\n
     4.    By Notification on 3rd  October, 1964 the Government <\/p>\n
     introduced with immediate effect a     test for Medicinal <\/p>\n
     grade Castor oil (Cold drawn) as set out on page 435 of <\/p>\n
     the First Edition of  Pharmacoepia of  India   1955 which <\/p>\n
     read as under:-\n<\/p>\n
           “Castor   Oil   processed   by   hot   expression   or   by  <\/p>\n
           extraction   with   solvents   Mix   5   ml   with   an   equal  <\/p>\n
           volumn   of   carbon   desulphide   and   ml   of   sulphuric  <\/p>\n
           acide the mixture may be coloured reddish-brown but <\/p>\n
           not blackish brown”.\n<\/p><\/blockquote>\n
     It was further set out that all the samples of medicinal <\/p>\n
     grade   Castor   Oil   shall   be   subjected   to   such   tests   in <\/p>\n
     future and be allowed to be graded under Agmark if they <\/p>\n
     confirm to the requirements given in the test.\n<\/p>\n
     5.    The petitioner  by his application dated October 26, <\/p>\n
     1978 had  applied for  fixation of  drawback rates on  the <\/p>\n
     export   of   Castor   Oil   Medicinal   N.P.   The   Respondents   by <\/p>\n
     their   letter   of   28th  March,   1979   replied   that   the <\/p>\n
     Government   had   decided   to   allow   draw   back   on   export <\/p>\n
     product  Castor Oil Medicinal N.P.. under Sub-Serial No.<\/p>\n
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\n                                         6<\/span><\/p>\n
     1204   (b)   under   Drugs   &   Drugs   Intermediates   & <\/p>\n
     Pharmaceuticals   (Liquids   &   Drops)   and   avail   an   all <\/p>\n
     industry rate of 2%  of the F.O.B. Value.\n<\/p>\n
     6.    Based on the test to be conducted in terms of the <\/p>\n
     Circular dated 3rd October, 1964 the Castor Oil  exported <\/p>\n
     by   the   petitioners   was   shown   under   Entry   ‘Castor   Oil <\/p>\n
     Medicinal’   and   was   accordingly   exported.The   petitioners <\/p>\n
     based   on   this   policy   continued     exporting   Castor   Oil <\/p>\n
     (Medicinal).\n<\/p>\n
     7.<\/p>\n
           The   Respondents   issued   another   Circular   dated <\/p>\n
     22\/33-6-1989   by   which   the   Thin-layer   Chromatographic <\/p>\n
     Test   was   prescribed   for   identification   of   Cold   drawn <\/p>\n
     Castor   Oil   of   medicinal   grade   under   Agmark     by <\/p>\n
     substituting the earlier test.\n<\/p>\n
     8.    On 6th  December, 1989 by communication addressed by <\/p>\n
     Under   Secretary   (Drawback)   Government   of   India,   to <\/p>\n
     M\/s.Jayant Oil Mills it was set out that on the basis of <\/p>\n
     data   provided   and   as   verified   by   the   Customs\/Central <\/p>\n
     Excise Department it had been decided to allow  drawback <\/p>\n
     at   the   rate     as   set   out   in   the   said   Circular.     The <\/p>\n
     description   of   the   goods   were   given   as   Castor   Oil <\/p>\n
     Medicinal   and\/or   Castor   Oil   First   Special.     By   that <\/p>\n
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\n                                        7<\/span><\/p>\n
     communication the petitioners were also informed of the <\/p>\n
     rate fixed.\n<\/p>\n
     9.          By   communication   of   3rd  September,     1990   the <\/p>\n
     petitioners   applied   for   fixation   of   the     Drawback   rate <\/p>\n
     against the export of Castor Oil First Special Grade  in <\/p>\n
     the requisite proforma.\n<\/p>\n
     10.    By communication of 6th  November, 1990 an amendment <\/p>\n
     was   made   to   the   Ministry’s   letter   dated   6th  December, <\/p>\n
     1988.   The existing description in para.3 was subsisted <\/p>\n
     by:-\n<\/p>\n
            “Castor Oil Medicinal”\n<\/p>\n
     The other terms and conditions remained unchanged.\n<\/p>\n
     11.     One   Vithalbhai   Patel,   Member   of   Parliament   also <\/p>\n
     addressed a letter dated 6th  January, 1992 on behalf of <\/p>\n
     the   industry.     Attention   was   invited   to   various <\/p>\n
     difficulties   financially   and   otherwise   suffered   by   the <\/p>\n
     exporters   of   the   Castor   Oil.     It   was   prayed   that   the <\/p>\n
     Government should take a sympathetic view and grant draw <\/p>\n
     back on export of Castor Oil.   It was also requested on <\/p>\n
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\n                                          8<\/span><\/p>\n
     behalf   of   the   petitioners   that   draw   back   on   export   of <\/p>\n
     Castor Oil First Special effected from 1st  July, 1989 to <\/p>\n
     20th  December,   1990     be   allowed   by   relaxing   the   Rule <\/p>\n
     under Serial No.15 and all like.\n<\/p>\n
     12.   The Respondents  inspite the claim for drawback did <\/p>\n
     not   take   any   action.   Writ   Petition   being   Writ   Petition <\/p>\n
     No.2299   of   1992   came   to   be   filed   before   this   Court <\/p>\n
     wherein Rule was issued.   The petition was disposed off <\/p>\n
     by order dated 10th November, 1992 with  the direction to <\/p>\n
     the 4th  respondent to decide the claim for draw back for <\/p>\n
     the period 1st July, 1989 to 21st December, 1990 within a <\/p>\n
     time   frame   as   set   out   therein.   In   the   same   petition   a <\/p>\n
     Motion was taken out.  That Motion was disposed off with <\/p>\n
     a direction that the respondents are directed to decide <\/p>\n
     the claim of the petitioner for draw back for the period <\/p>\n
     1st  July,   1989   to   21st  December,   1990   on   or   before   29th <\/p>\n
     October, 1993.\n<\/p>\n
     13.   Pursuant   to   the   order   of   the   Court   the   Authority <\/p>\n
     considered the contentions and the facts on record.  The <\/p>\n
     Respondent   No.3   by   his   order   dated     29th  October,   1993 <\/p>\n
     disposed   of   the   application   by   holding   that   the   Castor <\/p>\n
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\n                                        9<\/span><\/p>\n
     Oil   manufactured by the petitioners was not Castor oil <\/p>\n
     medicinal     and   accordingly   could   not     be   considered <\/p>\n
     against   the   entry   of   ‘other   drugs   and   pharmaceutical <\/p>\n
     product’ under Serial No.1201.\n<\/p>\n
     14.   A reply has been filed on behalf of the respondents <\/p>\n
     by   S.G.   Gawde,   then   working   as   Deputy   Commissioner   of <\/p>\n
     Customs (Drawback). It  is the case of the affiant that <\/p>\n
     the   petitioners   were   given   personal   hearing   on   28th <\/p>\n
     October,   1993.     After   hearing   them   a   detailed   speaking <\/p>\n
     order   had   been   passed.     Dealing   with   the   issue   as   to <\/p>\n
     whether   the   products   could   be   termed   as   Castor   Oil <\/p>\n
     (medicinal) or Castor Oil First Grade it was  held that <\/p>\n
     only   Castor   Oil   drawn   by   Cold   Drawn   process   could   be <\/p>\n
     treated as Castor Oil (Medicinal). In other words if the <\/p>\n
     Oil   was   extracted   by   the     Cold   Drawn   method   and <\/p>\n
     satisfied   the Thin Layer Chromatographic Test would it <\/p>\n
     be   treated   as   Castor   Oil   (Medicinal)   and   be   allotted <\/p>\n
     Agmark   Certificate   as   Medicinal   Grade.     In   respect   of <\/p>\n
     Castor   Oil     which   did   not   pass   the   Thin   Layer <\/p>\n
     Chromatographic test it would be issued Agmark as Castor <\/p>\n
     Oil First Grade.  It is also pointed out that Castor Oil <\/p>\n
     does   not     conform   to   BP   certifications,   is   not   of <\/p>\n
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\n                                         10<\/span><\/p>\n
     pharmaceutical  grade  and as such would not  fall   under <\/p>\n
     Serial No.12 of the Schedule Appended to Drawback Rules, <\/p>\n
     1971.   The petitioners, therefore, it is submitted were <\/p>\n
     rightly denied the Drawback facility.\n<\/p>\n
     15.   At   the   hearing   of   this   petition   on   behalf   of   the <\/p>\n
     petitioner   it   is   submitted   that   once   the   petitioners <\/p>\n
     were   allowed   to   export   Castor   Oil   as   Medicinal   by <\/p>\n
     following     the   test   in   terms   of   Notification   of   3 rd <\/p>\n
     October, 1964 merely because another test was introduced <\/p>\n
     by   Circular   of   22\/23-6-1989,   would   not   result   in   the <\/p>\n
     Castor   Oil   which   otherwise   fell   under   Serial   No.12   to <\/p>\n
     the   Schedule     to   the   Rules   to   cease   to   be   Castor   Oil <\/p>\n
     medicinal.  Further, merely because the petitioners were <\/p>\n
     marketing their product as Castor Oil First Grade could <\/p>\n
     not   deprive   them   of   the   benefit   of   duty   draw   back   on <\/p>\n
     export of Castor Oil.  It is further submitted that once <\/p>\n
     the   petitioners   application   for   fixing   drawback   rates <\/p>\n
     were   allowed   by   the   Government   communication   of   6th <\/p>\n
     December, 1989 for the period 1st June, 1989 to 31st May, <\/p>\n
     1990   it   was   not   open   to   the   respondents   by   subsequent <\/p>\n
     communication of 6th  November, 1990 to deny to them the <\/p>\n
     drawback   facilities   by   amending   the   letter   dated   6th <\/p>\n
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\n                                        11<\/span><\/p>\n
     December,   1989.   to   include   only     Castor   Oil   medicinal.\n<\/p>\n
     Learned   Counsel   has   relied   upon   various   authorities <\/p>\n
     which we shall consider at the appropriate stage.\n<\/p>\n
     16.         On   behalf   of   the   Respondents   learned   Counsel <\/p>\n
     submits   that   Castor   Oil   First   Grade   is   not   Castor   Oil <\/p>\n
     medicinal and as such would not fall under Entry No.12 <\/p>\n
     or   for   that   matter   under   sub-head   1201   which   was   drug <\/p>\n
     and   pharmaceutical   product   not   provided   elsewhere.     No <\/p>\n
     duty drawback claim could have  been granted as as such <\/p>\n
     the Government was right by letter of 6th  November, 1990 <\/p>\n
     to   amend     the   fixation   of   rates   by   letter   of   6th <\/p>\n
     December, 1989.\n<\/p>\n
     17.         To understand the controversy we may point out <\/p>\n
     Rules   have   been   framed   for   allowance   of   drawback.\n<\/p>\n
     Known as the Customs and Central Excise Duties Drawback <\/p>\n
     Rules,   1971,   hereinafter   referred   to   as   the   “Drawback <\/p>\n
     Rules.”   The   Government can fix the rates in terms of <\/p>\n
     Rule 3.   Rule 4 confers power on the Central Government <\/p>\n
     to revise the rates determined under Rule 3.   In those <\/p>\n
     cases where drawback has not been determined considering <\/p>\n
     Rule   6   any   manufacturer   or   exporter   of   such   goods   may <\/p>\n
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\n                                        12<\/span><\/p>\n
     within thirty days from the date of export of such goods <\/p>\n
     apply   in   writing   to   the   Central   Government   for <\/p>\n
     determination   of   the   amount   or   rate   of   drawback <\/p>\n
     therefor,   stating   all   relevant   facts   including   the <\/p>\n
     proportion in which the materials or components are used <\/p>\n
     in the production or manufacture of goods.     Power was <\/p>\n
     conferred   on   the   Government   if   the   application   was   not <\/p>\n
     made   within   30   days   and   sufficient   cause   was   shown   to <\/p>\n
     extend the time apply within a further period of thirty <\/p>\n
     days.  Rule 15 is a power conferred on the Government to <\/p>\n
     relax   Rules   for   reasons   recorded   in   writing   in   the <\/p>\n
     circumstances   set   out   therein.     Earlier   under   Schedule <\/p>\n
     II under Entry 12 read as under:-\n<\/p>\n
           “Drugs and Pharmaceutical products” and <\/p>\n
     Entry 15  read as under:\n<\/p>\n
           “Essential Oils, persume materials,                   agarbatties, <\/p>\n
           toilet, polishing and cleaning               preparations”\n<\/p>\n
     By Notification dated21st December, 1990 Castor Oil was <\/p>\n
     also included under Entry 15.  Thus from   21 st  December, <\/p>\n
     1990   the   petitioners   and   other   exporters   like   the <\/p>\n
     petitioners were entitled to drawback considering Serial <\/p>\n
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\n                                        13<\/span><\/p>\n
     No.15 of Schedule II.\n<\/p>\n
     18.   The  question  that we  are  called  upon  to  answer  is <\/p>\n
     whether   the   petitioners   are   entitled   to   duty   drawback <\/p>\n
     assuming that they did not meet the prescribed test for <\/p>\n
     the   exports   of   Castor   Oil   between   the     period <\/p>\n
     22\/23-6-1989 to 20-12-1990.\n<\/p>\n
     19.   We  may  consider  the  above argument  for     distinct <\/p>\n
     periods, the   first being 22\/23-6-1989 to 31-5-1990 and <\/p>\n
     second   period   being   1-6-1989   to   6-12-1989   and   third <\/p>\n
     being from 7-12-1989 to 21-12-1989.\n<\/p>\n
     20.   As noted earlier by virtue of Rule 3 of the Drawback <\/p>\n
     Rules,  it is open to the Government to fix the rates of <\/p>\n
     drawback   duty.     In   so   far   as   the   petitioners   are <\/p>\n
     concerned the Government by their communication dated 6th <\/p>\n
     December, 1989 in respect of Castor Oil medicinal and\/or <\/p>\n
     Castor   Oil     First   Grade   had   fixed   rate   for   the   period <\/p>\n
     1-6-1989 to 31-5-1990.   By  a  further   communication of <\/p>\n
     6-11-1990 the communication of 6-12-1989 was amended by <\/p>\n
     substituting the description by “Castor Oil medicinal”.\n<\/p>\n
     Thus Castor Oil First Special Grade was excluded.    The <\/p>\n
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\n                                         14<\/span><\/p>\n
     question that we are called upon to consider is whether <\/p>\n
     it   was   open   to   the   respondents   by   subsequent <\/p>\n
     communication of 6-11-1990 to amend the communication on <\/p>\n
     6-12-1989 for the period 1-6-1989 to 31-5-1990.   In our <\/p>\n
     opinion the petitioners had already exported Castor Oil <\/p>\n
     First   Grade   under   the   mark   Castor   Oil     First   Special <\/p>\n
     Grade   as   they   were   doing   earlier.   It   is   only   that   the <\/p>\n
     same   oil   then   was   being   described   as   Castor   Oil <\/p>\n
     medicinal, pursuant to the test which was earlier being <\/p>\n
     done in terms of Circular of 3rd October, 1964.  That was <\/p>\n
     by hot extraction  or by extraction with solvents as has <\/p>\n
     been     described   earlier.     Such     Castor   Oil   was   always <\/p>\n
     treated by the  Government as   Castor Oil  medicinal. It <\/p>\n
     is only pursuant to the Circular dated 22\/23-6-1989 that <\/p>\n
     the     Thin-layer   Chromatographic   Test   was   applied   for <\/p>\n
     identification     of   Cold   draw   Castor   Oil   of   Medicinal <\/p>\n
     Grade.     The   communication   of   6-12-1989   covered   the <\/p>\n
     period   1-6-1989   to   31-5-1990.     In   other   words   upto <\/p>\n
     22\/23-6-1989 the  Castor Oil undergoing the earlier test <\/p>\n
     was still  treated as  Castor Oil medicinal.  It is only <\/p>\n
     subsequent to 22\/23-6-1989   it had to undergo the Thin-\n<\/p>\n
     layer   Chromatographic   Test.     The   petitioners   had   been <\/p>\n
     exporting   Castor   Oil   First   Grade   and   the   Government   in <\/p>\n
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\n                                        15<\/span><\/p>\n
     fact recognised the same  by fixing the  rates  by letter <\/p>\n
     of   6th  December,   1989.    Under   these  circumstances   could <\/p>\n
     the   Government   have   withdrawn   the   same   by   the <\/p>\n
     communication of 6-11-1990.\n<\/p>\n
     21.   We   may   make   reference   to   some   of   the   judgments <\/p>\n
     referred to at the Bar.  In Mazda International (P) Ltd.\n<\/p>\n
     vs.   Union   of   India,   1995   (77)   E.L.T.   526   (Bom),  the <\/p>\n
     Government   of   India   removed   Gripe   water   from   the <\/p>\n
     entitlement   of   drawback   benefit   with   retrospective <\/p>\n
     effect.     The   submission   before   the   Court   was   that   the <\/p>\n
     Authority   exercising   subordinate   legislation   could   not <\/p>\n
     have withdrawn the benefits with retrospective effect. A <\/p>\n
     learned   Division   Bench   of   this   Court   accepted   the   said <\/p>\n
     contention   as   unless   there   be   a   power   to   make <\/p>\n
     subordinate legislation with retrospective effect it is <\/p>\n
     not open to an Authority to give retrospective effect to <\/p>\n
     a   Notification.     This   was   followed   by   another   Division <\/p>\n
     Bench   in  Gandhi   Sons   &   Ors.,   vs.   Union   of   India,<\/a>   2002 <\/p>\n
     (81)   ECC   261   (Bom.)  and   subsequently   reiterated   by <\/p>\n
     another judgment in Arviva Industries (I) Ltd. vs. Union <\/p>\n
     of India,<\/a> 2004 (167) E.L.T. 135 (Bom.).   Based on these <\/p>\n
     Authorities   it   will   be   clear   that   once   the   rates   had <\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:05:53 :::<\/span>
\n                                        16<\/span><\/p>\n
     been   fixed   in   respect   of   the   goods   described   in   the <\/p>\n
     communication   it   could   not   have   been   open   to   the <\/p>\n
     respondents to retrospectively amend the benefit given.\n<\/p>\n
     Even   otherwise     from   the   reply   filed   on   behalf   of   the <\/p>\n
     respondents   it   would   be   clear   that   this   was   done   as <\/p>\n
     Castor   Oil   First   Grade   would   not   fall   under   Entry   12 <\/p>\n
     namely Drugs and Pharmaceutical products.  This was only <\/p>\n
     because   the   change   and   nature   of   the   test.     Upto <\/p>\n
     22\/23-6-1989     under   the   test   in   force   the   same   Castor <\/p>\n
     Oil could have  been exported and  was being exported as <\/p>\n
     Castor   Oil   medicinal.     Letter   of   6th  December,   1989   is <\/p>\n
     recognition of this and apart from that it can also be <\/p>\n
     traced to the Governmental   powers under Rule 15 of the <\/p>\n
     Rules to avoid hardship.   Under these circumstances, in <\/p>\n
     our opinion, the subsequent communication for all these <\/p>\n
     reasons   would   be   without   authority   of   law   and <\/p>\n
     consequently no reliance can be placed on the letter of <\/p>\n
     6th  November,   1990   amending   the   letter   by   letter   dated <\/p>\n
     6-12-1989 with retrospective effect.\n<\/p>\n
     22.   The   next   question   is   what   happens   in   so   far   as <\/p>\n
     subsequent period  between 1-6-1989 and 6-11-1990 and\/or <\/p>\n
     for that  matter 7-11-1990 to 20-12-1990.   On  behalf of <\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:05:53 :::<\/span>
\n                                        17<\/span><\/p>\n
     the petitioners learned Counsel sought to place reliance <\/p>\n
     on  the judgment of this Court in  Rajasthan Sinning and <\/p>\n
     Weaving Mills Ltd. vs. Union of India,<\/a> 1993 (67) E.L.T.\n<\/p>\n
     57   (Bom.)    to   contend   that   once   under   the     scheme <\/p>\n
     framed,   cash   compensatory   allowance   was   paid   as   an <\/p>\n
     inventive   to   exporters   to   increase   exports   and   on   that <\/p>\n
     basis   exporters   acted   and   completed   transactions   it <\/p>\n
     would   not   be   proper   and   equitable   to   demand   amount   by <\/p>\n
     claiming that the payment was erroneous.\n<\/p>\n
     23.   In   our   opinion   so   far   as   these   periods   are <\/p>\n
     concerned, firstly, the Government did not fix any rate.\n<\/p>\n
     It   is   only   on   21st  December,   1990   realising   that   there <\/p>\n
     was large export of Castor Oil, Castor Oil was included <\/p>\n
     in   Schedule   2   under   Item   No.15.   In   other   words   the <\/p>\n
     Government   felt   the   need   to   grant   drawback   benefits   to <\/p>\n
     Castor Oil.       However,   after   introduction   of   the   new <\/p>\n
     test from 22\/23-6-1989   Castor Oil medicinal Castor Oil <\/p>\n
     First   Grade   was   being   branded   under   two   Agmark   trade <\/p>\n
     marks     namely   Agmark   Castor   Oil   medicinal   and   Agmark <\/p>\n
     Castor Oil First Grade. Castor Oil First Grade would not <\/p>\n
     fall under Entry No.12 of Schedule II.   In our opinion, <\/p>\n
     the reasons which we have given for the period 1st  June, <\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:05:53 :::<\/span>
\n                                         18<\/span><\/p>\n
     1989   to   31st  May,   1990   will   not   be   available   for   these <\/p>\n
     subsequent  periods.\n<\/p>\n
     24.   However,  we  find  that the change  in  the  status  of <\/p>\n
     Castor   Oil     medicinal   to     Castor   Oil   First   Grade   has <\/p>\n
     only taken place on account of the  new test introduced <\/p>\n
     by   the   Government.     The   same   Castor   Oil     was   earlier <\/p>\n
     being exported as Castor Oil   medicinal by applying the <\/p>\n
     test in terms of Circular of 3rd  October, 1964.   In our <\/p>\n
     opinion, in these circumstances it will be   open to the <\/p>\n
     petitioners within sixty days from today to apply to the <\/p>\n
     respondents   to   exercise   their   powers   under   Rule   15   of <\/p>\n
     the   Rules.     It   is   for   the   respondents   to   consider   the <\/p>\n
     same and act according to law at any rate not later than <\/p>\n
     six months from the petitioners so applying.\n<\/p>\n
     25.   Rule  to  that  extent  made  partly  absolute.    In the <\/p>\n
     circumstances of the case there shall be no order as to <\/p>\n
     costs.\n<\/p>\n
     (D.G. KARNIK,J.)                        (FERDINO I.REBELLO,J.)<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:05:53 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Companies Act vs Union Of India on 18 September, 2009 Bench: F.I. Rebello, D.G. Karnik 1 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.871 OF 1994 M\/s.Biotor Industries Limited ) a Company incrporated under ) the provisions of the ) Companies Act, 1956 having […]<\/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-215651","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nCompanies Act vs Union Of India on 18 September, 2009 - 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\/companies-act-vs-union-of-india-on-18-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Companies Act vs Union Of India on 18 September, 2009 - 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