{"id":266978,"date":"2003-01-24T00:00:00","date_gmt":"2003-01-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-others-vs-ms-chowgule-co-ltd-others-on-24-january-2003"},"modified":"2018-04-21T14:51:59","modified_gmt":"2018-04-21T09:21:59","slug":"union-of-india-others-vs-ms-chowgule-co-ltd-others-on-24-january-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-others-vs-ms-chowgule-co-ltd-others-on-24-january-2003","title":{"rendered":"Union Of India & Others vs M\/S Chowgule & Co. Ltd. & Others on 24 January, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India & Others vs M\/S Chowgule & Co. Ltd. & Others on 24 January, 2003<\/div>\n
Author: Bhan<\/div>\n
Bench: Syed Shah Quadri, Ashok Bhan.<\/div>\n
           CASE NO.:\nAppeal (civil)  2185- of 2188\n\nPETITIONER:\nUnion of India & Others\n\nRESPONDENT:\nM\/s Chowgule & Co. Ltd. & Others\n\nDATE OF JUDGMENT: 24\/01\/2003\n\nBENCH:\nSyed Shah Mohammed Quadri & Ashok Bhan.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
   BHAN, J.\n<\/p>\n
1.   Union of India has filed these appeals against a common
\njudgment\/order of the High Court of Bombay, Panaji Bench, Goa
\ndated 16th December, 1993 passed in Writ Petition Nos. 480 of 1993,
\n490 of 1993, 522 of 1993 and 521 of 1993 filed by the respondents
\nwho were the petitioners before the High Court.\t By the impugned
\njudgment the High Court has quashed the orders passed by the
\nauthorities rejecting the claim of the respondents for grant of
\nadditional licence against the export orders.  But because of the
\nintervening circumstances, i.e., issuance of REP Circular No. 11 of
\n1993 dated 5th May, 1993 by the Directorate General of Foreign
\nTrade, instead of granting the additional licence the Union of India
\nhas been directed to pay to the respondents the premium amount of
\n20% in terms of the said Circular.  Union of India was directed to
\nwork out the amount payable subject to the respondents producing the
\nBank Certificate in respect of the realisation of foreign exchange of
\nexport proceeds.\n<\/p>\n
2.   The facts which are common to all the appeals being similar are
\ntaken from the appeal: Union of India Vs. Chowgule & Co. Ltd. &
\nOthers.\n<\/p>\n
3. Respondent is a limited company incorporated under the
\nCompanies Act<\/a>, 1956.  It is engaged, inter alia, in the export of
\nprocessed iron ore of Goan origin.  It is also recognised as a trading
\nhouse.\tUnder the Import Export Policy for April 1988-March 1991
\n(hereinafter referred to as ‘the old policy’) trading houses were
\neligible for the benefit inter alia of additional licences of defined value
\nagainst the export of processed iron ore under the policy.   Old policy
\nwas terminated and instead a new policy starting w.e.f. April 1990-
\nMarch 1993 (for short ‘the New Policy’) was introduced.\t During the
\nperiod 1.4.1989 to 31.3.1990 the respondents had exported processed
\niron ore of the value of Rupees 21,92,15,711.69.  On 4.6.1990 the
\ncompany applied to the Assistant Chief Controller of Imports &
\nExports for additional licence of a value of Rs.2,12,63,924\/-  against
\nthe said exports.  The application was rejected by the Assistant Chief
\nController of Imports & Exports on 24th September, 1990 on the
\nground that application for additional licence for the licensing year
\n1990-1991 could not be considered on the basis of the items appearing
\nin Appendix 12 of the New Policy because there was no provision for
\ngrant of licence under the heading transitional arrangements in terms
\nof the paragraph 222 of the New Policy.\t Respondents preferred an
\nappeal which was dismissed on 21st January, 1991.  Likewise second
\nappeal was  dismissed on 12th March, 1992.  Review Petition filed by
\nthe respondents was also rejected on 9th June, 1993.\n<\/p>\n
4.   Government of India , Ministry of Commerce, Directorate General
\nof Foreign Trade, Udyog Bhavan, New Delhi issued REP Circular
\nNo.11\/93 dated 5th May, 1993 (hereinafter referred to as ‘the Circular
\n11 of 93’) providing therein:\n<\/p>\n
    “(b) Where the applications for issue of Exim
\nScrips\/REP etc. licences are pending in respect of
\nexports made and export proceeds realised there
\nagainst prior to 1.3.92, the 20% premium will be
\nstraightway paid, instead of issuing the licences,
\nprovided that licensing authority after processing
\nthe application and determining the eligibility for
\nissue of licences is satisfied that the applicant is
\neligible for grant of Exim Scrips\/REP etc.
\nlicences.”\n<\/p>\n
5.   On 14th July, 1993\t respondents lodged its claim for 20% premium
\ninstead of additional licence for the licensing year April-March 1991
\nagainst exports of processed iron ore in the preceding licensing year
\nApril-March 1990.  The claim of the company was rejected by the
\nDeputy Director General of Foreign Trade, Panaji vide letter dated 1st
\nSeptember, 1993 on the ground that minerals and ores appearing in
\nAppendix 12 of the policy book 1990-1993 were ineligible for
\nadditional licence.\n<\/p>\n
6.    Aggrieved against the aforesaid sets of orders the respondents
\nfiled the writ petitions in the High Court of Bombay, Panaji Bench,
\nGoa seeking two-fold relief.  Firstly, for quashing of the orders passed
\nby the various authorities as mentioned above refusing their prayer for
\nadditional licence and secondly a writ of mandamus or any other
\nappropriate writ directing the Union of India to forthwith pay to them
\npremium of 20% of Rs.2,12,63,924\/- being the face value of the
\nadditional licence for April-March 1991 to which the respondents
\nwere entitled to under the Circular 11 of 1993.\n<\/p>\n
7.   The respondents in their writ petitions raised three-fold
\ncontentions, firstly, it was urged on their behalf that by exporting
\nprocessed iron ore during the period 1.4.1989 to 31.3.1990 under the
\nimport export policy for the years 1988-1991 (old Policy), they had
\nacquired a vested right to get additional licence in the licensing year
\nApril-March 1990-1991 of the value prescribed in the import export
\npolicy relevant for April 1988- March 1991 and the said right could
\nnot be defeated by the provisions of the new policy.  Secondly, it was
\ncontended that on a true construction of the relevant provisions of the
\nimport export policy for April 1990  March 1993, in particular,
\nparagraph 220 thereof, the respondents were entitled to additional
\nlicence for the licensing year April 1990  March 1991 against
\nexports of processed iron ore made in the preceding licensing year,
\ni.e., April 1989-March 1990 and that the authorities have
\nmisconstrued the relevant provisions.  Thirdly, it was contended that
\nthe Union of India was precluded by the doctrine of Promissory
\nEstoppel for denying the  additional licence to the company during the
\nlicensing year April-March 1991 of the value defined having
\nrepresented to the Trading Houses\/Exporters  that they would be
\nentitled to the additional licence, the parties having acted upon that
\nrepresentation and having exported processed iron ore during the
\nperiod 1.4.1989 to 31.3.1990.\n<\/p>\n
8.    The appellants apart from raising certain preliminary objections
\nregarding the maintainability of the writ petitions which were rejected
\nby the High Court and which have not been pressed before us did not
\ndispute the factual statements of facts made in paragraphs 1 to 8 in the
\nwrit petitions stating that these were matters of records.  In so far as
\nthe claim of the respondents for 20% premium it was contended that
\nthere was no application from the party pending for entitlement of
\nadditional licence as their application for additional licence was
\nrejected.  It was denied that their action in rejecting the application of
\nthe respondents for the grant of additional licence was contrary to law
\nor null and void  or in excess of jurisdiction.\t That the claim for
\nadditional licence in subsequent year was ineligible under the new
\npolicy although that might have been available under the old policy,
\nwhich, however, ceased to exist after 31st March, 1990.\t Claim of
\nrespondents\/writ petitioners that they had acquired any vested right to
\nget an additional licence by virtue of\texports made during the year
\n1989-1990 was denied.  That the amendment made in the policy was
\nvalid and the consequences flowing thereof were in the public interest
\nand therefore not opened to challenge.\tCircumstances which
\nnecessitated the amendment in public interest were set out.  According
\nto the appellants the export incentive was subject to changes from
\ntime to time during the policy period.\tA change when it was brought
\nin the policy after 30th March 1990 could thus be made and was
\nbinding upon the parties and that the said amendment was made in
\npublic interest particularly taking into account that in spite of other
\nexisting financial burden on the exchequer, incentive on iron ore was
\nfurther amounting to large amount of outflow of foreign exchange by
\nway of additional licence and higher REP benefits.  For these reasons,
\naccording to the appellants, there did not arise any question of any
\npromise having been made by the government to the Trading
\nHouses\/Exporters and, therefore, the principal of Promissory Estoppel
\ncould not be invoked and the same was not applicable to the facts of
\nthe case.  It was maintained that the application for additional licence
\nmade by the respondents was rejected in accordance with the position
\nof law as it obtained on that date.\n<\/p>\n
9.    It may be highlighted that appellants did not dispute that the
\nrespondent’s company was a recognised Trading House.  The extent
\nof export of processed iron ore made by the respondents between
\n1.4.1989 to 31.3.1990 and the value thereof stated in the writ petition
\nwere not controverted.\tThe value shown by the respondents for the
\npurpose of additional licence was also not disputed.  No issue as
\nregards the net foreign exchange earnings as may have been earned
\nagainst the export of iron ore was raised.  Except from contending that
\nthe respondents were ineligible for grant of additional licence as per
\nthe new policy it was not stated that the application for licence was
\nliable to be rejected on any other ground.  Issuance of the Circular 11
\nof 93 for payment of premium in the manner provided instead of
\nadditional licence to which the applicant may have been entitled to
\nwas also not disputed.\n<\/p>\n
10.  The High Court by the impugned order independent of and
\nrelying upon an earlier division bench judgment of its own court held
\nthat the writ petitioners were entitled to the grant of additional licence
\nand accordingly quashed the orders passed by the authorities rejecting
\ntheir claim for the additional licence.\t Because of the coming into
\nforce of the Circular 11 of 93 instead of directing the authorities to
\ngrant the additional licence  it was declared that the respondents
\nwould be entitled to the payment of premium of 20% in terms of the
\nrelevant clause of which extracted in paragraph no.4 of this judgment.\n<\/p>\n
11.   The short point to be decided in these appeals is: as to whether
\nthe respondents who were admittedly entitled to grant of additional
\nlicence under the old policy stand debarred from claiming the said
\nadditional licence because of the new import export policy which
\ncame into force from 1st April, 1990 and further the applicability of
\nthe Circular 11 of 93 dated 5th May, 1993 and the effect thereof.\n<\/p>\n
12.   Before addressing on the controversy, the salient features of the
\nold import export policy effective for April 1988-March 1991, which
\nwas terminated on 30th March, 1990 and was replaced by the new
\nimport export policy April 1990-March 1993, may be set out.
\nParagraph 211 of the old policy sets out the objectives of the scheme
\nfor registration of export houses and trading houses.  It states that it is
\nto grant recognition and facilities to a select band of efficient
\nregistered exporters who would develop a  strong marketing capability
\nand that it is expected that they would operate as highly specialized
\nand dynamic institutions with a strong marketing infrastructure and
\nact as an important instrument for export growth.    Paragraph 212
\nprovides that the eligibility for grant of Trading Houses\/Export
\nHouses certificate shall be determined on the basis of the net foreign
\nexchange earnings from the exports actually made during the past
\nperiod subject to the conditions set out in sub-paragraph (2) of the said
\nparagraph.  Paragraph 215 provides for additional licence.
\nThereunder the Trading Houses\/Export Houses will be eligible to
\nadditional licence on the basis of the admissible exports made in the
\npreceding licensing year and that the value of this licence will be
\ncalculated at 10% of the net foreign exchange (NFE) earnings on the
\ntotal eligible exports made in the preceding licensing year.
\nRemaining part of the paragraph is not material and therefore is not
\nbeing set out.\tSub-paragraph (2) laid down that the additional licence
\nshall be valid for the export of the items listed thereunder.  Sub-
\nparagraph (8) provides that the items permissible shall be those
\neligible under the policy on the date of issue of the licence.\tParagraph
\n218, inter alia, provides that where the applications for additional
\nlicence\t have not been disposed of by 31st March of the preceding
\nlicensing year, the rate of entitlement will be the same as permissible
\nduring the licensing year to which the applications pertained but the
\nitems to be allowed will be as per the import policy on the date of the
\nlicence.  Appendix 12 of the old policy does not list iron ore as
\nineligible product for import replenishment licence or additional
\nlicence.\n<\/p>\n
\t13.\tParagraph 204 of Chapter XV of the new policy provides that in
\nthe case of exports made prior to 1.4.1990 against which REP licence
\nwas issued  on or after 1.4.1990, the rate of import replenishment will
\nbe as admissible on the date of export but subject to the conditions
\nlaid down in 1988-1991 policy book.  Chapter XVI deals with deemed
\nexports.  Under paragraph 210 the deemed exports will qualify for
\ngrant of import replenishment licence.\tThe material provision,
\nhowever, is contained in Chapter XVIII.\t Part-A thereof deals with
\nExport Houses\/Trading Houses.  The objective is similar to that of
\nearlier policy.\t The eligibility criteria laid down in paragraph 218 for
\nthe grant of export\/trading housing certificate is to be determined on
\nthe basis of NFE earnings from the exports actually made in the
\npreceding three licensing years termed as “base period”.  The earnings
\nfrom export of products in Appendix 12 shall not qualify for this
\npurpose.  Paragraph 220 deals with additional licence and provides,
\ninter alia, that the export houses\/trading houses will be eligible for
\nadditional licences on the basis of admissible exports made in the
\npreceding licensing year and the value of the licence will be
\ncalculated at the rate of 10% NFE earnings on the total eligible
\nexports made in the preceding licensing year.  Paragraph 222 deals
\nwith transitional arrangements and the same reads as under:
\n” 222.\tWhere the applications from Export
\nHouses\/Trading Houses for Additional Licences
\nfor any of the preceding licensing year, have not
\nbeen disposed of by the end of the licensing year,
\nlicences will be issued as per the relevant Policy
\nprovisions prevailing during the period to which
\nthe Additional Licences relate, subject to the
\ncondition that the permissibility of the items
\nallowed for import against such licences will be
\ngoverned by the relevant provisions of the Import
\nPolicy in force, at the time of their actual import.”\n<\/p>\n
14.  Coming to the point raised it is to be noticed that paragraph 215
\nof the old policy is clear and provides that eligibility to the additional
\nlicence was to be determined on the basis of  the admissible exports
\nmade in the preceding licensing year.  Paragraph 222 of the new
\npolicy which has been extracted above provides that where the
\napplications from export houses\/trading houses for additional licences
\nfor any of the preceding licensing year, have not been disposed of by
\nthe end of the licensing year, licences will be issued as per the
\nrelevant policy provisions prevailing during the period to which the
\nadditional licences relate.  Meaning thereby that if an application for
\nadditional licence for any preceding licensing year is pending which
\nin this case shall be deemed to be pending as the controversy is still
\nalive being adjudicated then the licence has to be issued as per the
\nrelevant policy provisions prevailing during the period to which the
\nadditional licence relates which in the present case would be under the
\nold policy.  The grant of additional licence in paragraph 222 has been
\nmade subject to the condition that the permissibility of the items
\nallowed for import against such licences will be governed by the
\nrelevant provisions of the import policy in force at the time of their
\nactual import meaning thereby that the items which can be imported
\nwould be relatable to the import policy in force, i.e., the new policy.
\nTransitional arrangements stated in paragraph 222 makes it
\nabundantly   clear that the applications from export houses\/trading
\nhouses which have not been finally disposed of by the end of the
\nlicensing year would be entitled to the issuance of the additional
\nlicence as per the relevant policy provisions prevailing during the
\nperiod to which the additional licences related.  The entitlement of the
\nexport houses\/trading houses  to get the additional licence has not
\nbeen taken away.  The only condition to which the additional licence
\nhas been subjected is that the permissible items allowable for import
\nagainst such (additional licencing) would be governed by the
\nprovisions of  the import policy in force at the time of their actual
\nimport.\t Contentions raised on behalf of the Union of India that the
\nrespondents\/writ petitioners had to lodge their right\/entitlement to get
\nthe additional licence under the new policy for the exports made
\nduring the period when the old policy was in force cannot be
\naccepted.  The application for the additional licence could be made
\nonly after the end of the fiscal year, as only thereafter the export house
\ncould know its entitlement.  The High Court was, therefore, right in
\nholding that the interpretation put by the authorities on the new policy
\nin declining the claim of the respondents for the grant of additional
\nlicence was unacceptable.  Under the new policy as well, the export
\nhouses\/trading houses would remain entitled to the additional licence
\nfor the exports made during the period when the old policy was in
\nforce but subject to the condition that they would be allowed to import
\nagainst the additional licence such items which are governed by the
\npolicy in force at the time of the import of the goods.\n<\/p>\n
15.   For the reasons stated above, we do not find any infirmity in the
\norders passed by the High Court in quashing the orders passed by the
\nauthorities rejecting the claim of the respondents for grant of
\nadditional licence.\n<\/p>\n
16.   Similarly, we do not find any infirmity in the orders passed by
\nthe High Courts in the issuance of writ of mandamus directing the
\nUnion of India to forthwith pay to the respondents the premium of
\n20% instead of issuing the additional licence in terms of the Circular
\n11 of 93.  Circular 11 of 93 provides that where application for grant
\nof additional licence are pending in respect of the exports made and
\nexport proceeds relating to the period prior to 1.3.1992 then instead of
\nissuing the licences, the 20% premium shall be paid.  The order
\npassed by the High Court is strictly in conformity with the Circular 11
\nof 93 issued by the appellants itself.\n<\/p>\n
17.  Bank guarantee given by the respondents in pursuance to the
\nOrder of this Court dated 28.3.1994 shall stand discharged. The
\nappeals being without any merit are, therefore, dismissed.  Parties
\nshall bear their own costs in these appeals.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India & Others vs M\/S Chowgule & Co. Ltd. & Others on 24 January, 2003 Author: Bhan Bench: Syed Shah Quadri, Ashok Bhan. CASE NO.: Appeal (civil) 2185- of 2188 PETITIONER: Union of India & Others RESPONDENT: M\/s Chowgule & Co. Ltd. & Others DATE OF JUDGMENT: 24\/01\/2003 BENCH: […]<\/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":[30],"tags":[],"class_list":["post-266978","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India & Others vs M\/S Chowgule & Co. 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