1. Import of goods under transferred duty-free license — dispute over validity period calculation based on date of transfer versus date of endorsement of transferability. (Para 2 , 3 )
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1996 Supreme(SC) 805
1996(4) Supreme 155
SUPREME COURT OF INDIA
B.P. Jeevan Reddy and S. Saghir Ahmad, JJ.
Union of India & Anr. -Appellants
versus
Shree Ganesh Steel Rolling Mills Limited & Anr. -Respondents
Civil Appeal No. 7296 of 1996
(Arising out of SLP (C) No. 2458 of Decided on 17-4-1996
Important Points
IMPORTANT POINTS
1. The power of clarification under para 20 of the Export and Import Policy cannot go to the extent of amending the policy.
2. It is always advisable that while making interim orders, the Court should provide for necessary safeguards for Revenue.
1. The power of clarification under para 20 of the Export and Import Policy cannot go to the extent of amending the policy.
2. It is always advisable that while making interim orders, the Court should provide for necessary safeguards for Revenue.
Subject
Administrative Law - Interpretation of Regulations
Act Referred
Headnote
(i) Import-Export and Import Policy issued by the Central Government-Para 20-Power of clarification conferred upon Director General of Foreign Trade-Cannot go to the extent of amending the policy-In the place of the words date of transfer in Para 127(v) he purported to introduce words date of endorsement -This change could not have been brought about in the name of clarification-It could have been done by way of an amendment. (Para 6)
(ii) Interim Orders-Sufficient safeguards to be provided in favour of Revenue while making such interim orders.
Held : It is always advisable that while making interim orders, the Court should provide for necessary safeguards for Revenue in the eventuality of failure of the petitioner or appellant. At the interim stage, it may not be possible to say with any definiteness that writ petition or appeal is bound to succeed. The possibility of the writ petition or appeal being dismissed cannot be ruled out at that stage. Therefore, it is always advisable that sufficient safeguards are provided in favour of a Revenue while making such interim orders. (Para 7)
Legal Category Hierarchy
Table of Contents
2. Whether a circular clarifying the meaning of date of transfer as the date of endorsement of transferability constitutes a valid exercise of power to interpret policy. (Para 4 )
3. Power to specify or amend import-export procedures requires a Public Notice; a clarification cannot be used to effectively amend the policy by substituting key terms. (Para 5 , 6 )
4. A power of clarification cannot be exercised to amend a policy; any amendment to procedures must be carried out through the prescribed method of Public Notice. (Para 6 )
5. Appeal dismissed and writ petition allowed, upholding the stay on the circular. (Para 8 )
6. Can a circular be used to amend the procedure for import and export?
No. Under the Export and Import Policy, procedures must be specified or amended by means of a Public Notice. A clarification issued via circular that is not a Public Notice cannot be treated as an amendment to the procedure. (Para 6 )
7. Does the power to clarify a policy include the power to amend it?
No. The power of clarification cannot extend to amending the policy. Substituting a term in the policy with another term constitutes an amendment, which must be done through the proper legal channel rather than under the guise of a clarification. (Para 6 )
8. What safeguards should courts consider when granting interim stays involving government revenue?
Courts should avoid granting unconditional stays that may prejudice the revenue. It is advisable to provide necessary safeguards to protect the revenue in the event that the petitioner or appellant's case is ultimately dismissed. (Para 7 )
ORDER
Heard the counsel for the parties.
Leave granted.
2. This appeal is preferred against an interlocutory order dated 30th May, 1994 made by the Delhi High Court in Civil Writ Petition No. 2112 of 1974. By means of the impugned order the High Court has stayed the operation of clause (iii) of para 2 of the Circular dated 19.4.1994.
3. Tata Iron and Steel Company Limited was granted an advance duty free licence on the basis of its application. The grant was made on 28.4.1993. Tata Iron and Steel Company complied with all the conditions attached to the said licence and thereafter applied for endorsement of transferability. On 6.9.1993 the Director General of Foreign Trade made the endorsement of transferability. On 17.12.1993 Tata Iron & Steel Company transferred the licence in favour of M/s. Ferro Alloys Limited. M/s. Ferro Alloys Limited in turn transferred it to M/s. Mohan Ferro Alloys Private Limited, from whom the respondent herein (Shree Ganesh Steel Rolling Mills Limited) purchased it on 11.2.1994. The respondents imported goods on the basis of the said licence. At that stage an objection was raised by the customs authorities that inasmuch as the import was made beyond six months from 6.9.1993 (date of endorsement of transferability), the import is invalid; accordingly they refused to clear the goods. At that stage, the respondent approached the Delhi High Court by way of a writ petition wherein they obtained the impugned interim orders.
4. Mr. A. Subba Rao, learned counsel for the appellants assailed the impugned order on more than one ground. He submitted that clause (v) of para 127 of Hand Book of Procedure 1992-97 issued by the D.G.F.T. provided (at the relevant time that "Duty free licences on the date of transfer shall be valid for the balance period of their validity or six months, whichever is more, provided no revalidation has been availed." Since there was a doubt with respect to the meaning of the expression date of transfer , it was clarified by the Directorate through a circular dated 19.4.1994 that "the automatic extension and validity shall be available with reference to the date on which transferability is endorsed by the endorsing authority" (vide clause (iii). The said circular was issued purportedly in exercise of the power conferred upon the D.G.F.T. by clause 20 of the Export and Import Policy issued by the Central Government which says that "if any question or doubt arises in respect of the interpretation of any provision contained in this policy, the said question or doubt shall be referred to the Chief Controller of Imports and Exports and his decision shall be final". (The Chief Controller of Imports and Exports has since been designated as the Director General of Foreign Trade). Counsel further submitted that the procedure governing the import and export is issued by the Director General of Foreign Trade under para 16 of the aforesaid Policy and, therefore, it was open to the Director General to clarify the procedure or to amend it, as may be called for. Mr. Subba Rao also contended that the High Court was in error in granting interim orders staying clause (iii) of the aforesaid circular and that too unconditionally.
5. We are unable to agree with the learned counsel for the appellants, on his first and main submission.
Para 16 of the Export and Import Policy reads:
"The Chief Controller of Imports and Exports may, in any case or class of cases, specify the procedure to be followed by an exporter or importer or by any licensing, competent or other authority for the purpose of implementing the provisions of the Act, the Rules and Orders made thereunder and this Policy. Such procedures shall be included in the Handbook of Procedures and published by means of a Public Notice. Such procedures may, in like manner, be amended from time time."
6. A reading of para 16 shows that D.G.F.T. is no doubt empowered to specify the procedure to be followed in the matter of import and export but this has to be done by
