IMPORTANT POINT
Under the New Import and Export Policy, the export Houses are entitled to the additional licence for the exports made during the period of old Import and Export Policy. Thus High Court was right in quashing the orders passed by the authorities rejecting the claim of the respondents for grant of additional licences against their export orders.

Headnote:Import and Export Policy April 1988-March 1990-Para 215-New Import and Export Policy April 1990-March 1993-Para 222-Claim of respondents for grant of additional licence against the export orders-Orders passed by authorities rejecting-High Court in writ petitions quashing the orders-Appeals to Supreme Court -Contention of appellant that the respondent/writ petitioner had no longer their right/entitlement to get the additional licence under the New Policy for the exports made during the period of old policy-Whether correct? (No)-Result-Appeals dismissed.
Held : Coming to the point raised it is to be noticed that paragraph 215 of the old policy is clear and provides that eligibility to the additional licence was to be determined on the basis of the admissible exports made in the preceding licensing year. Paragraph 222 of the new policy which has been extracted above provides that where the applications from export houses/trading houses for additional licences for any of the preceding licensing year, have not been disposed of by the end of the licensing year, licences will be issued as per the relevant policy provisions prevailing during the period to which the additional licences relate. Meaning thereby that if an application for additional licence for any preceding licensing year is pending which in this case shall be deemed to be pending as the controversy is still alive being adjudicated then the licence has to be issued as per the relevant policy provisions prevailing during the period to which the additional licence relates which in the present case would be under the old policy. The grant of additional licence in paragraph 222 has been made subject to the condition that the permissibility of the items allowed for import against such licences will be governed by the relevant provisions of the import policy in force at the time of their actual import meaning thereby that the items which can be imported would be relatable to the import policy in force, i.e., the new policy. Transitional arrangements stated in paragraph 222 makes it abundantly clear that the applications from export houses/trading houses which have not been finally disposed of by the end of the licensing year would be entitled to the issuance of the additional licence as per the relevant policy provisions prevailing during the period to which the additional licences related. The entitlement of the export houses/trading houses to get the additional licence has not been taken away. The only condition to which the additional licence has been subjected is that the permissible items allowable for import against such (additional licencing) would be governed by the provisions of the import policy in force at the time of their actual import. Contentions raised on behalf of the Union of India that the respondents/writ petitioners had to lodge their right/entitlement to get the additional licence under the new policy for the exports made during the period when the old policy was in force cannot be accepted. The application for the additional licence could be made only after the end of the fiscal year, as only thereafter the export house could know its entitlement. The High Court was, therefore, right in holding that the interpretation put by the authorities on the new policy in declining the claim of the respondents for the grant of additional licence was unacceptable. Under the new policy as well, the export houses/trading houses would remain entitled to the additional licence for the exports made during the period when the old policy was in force but subject to the condition that they would be allowed to import against the additional licence such items which are governed by the policy in force at the time of the import of the goods. For the reasons stated above, we do not find any infirmity in the orders passed by the High Court in quashing the orders passed by the authorities rejecting the claim of the respondents for grant of additional licence. Similarly, we do not find any infirmity in the orders passed by the High Courts in the issuance of writ of mandamus directing the Union of India to forthwith pay to the respondents the premium of 20% instead of issuing the additional licence in terms of the Circular 11 of 93. Circular 11 of 93 provides that where application for grant of additional licence are pending in respect of the exports made and export proceeds relating to the period prior to 1.3.1992 then instead of issuing the licences, the 20% premium shall be paid. The order passed by the High Court is strictly in conformity with the Circular 11 of 93 issued by the appellants itself. Bank guarantee given by the respondents in pursuance to the Order of this Court dated 28.3.1994 shall stand discharged. The appeals being without any merit are, therefore, dismissed. Parties shall bear their own costs in these appeals. (Paras 14, 15, 16 & 17)

JUDGMENT

Bhan, J.-Union of India has filed these appeals against a common judgment/order of the High Court of Bombay, Panaji Bench, Goa dated 16th December, 1993 passed in Writ Petition Nos. 480 of 1993, 490 of 1993, 522 of 1993 and 521 of 1993 filed by the respondents who were the petitioners before the High Court. By the impugned judgment the High Court has quashed the orders passed by the authorities rejecting the claim of the respondents for grant of additional licence against the export orders. But because of the intervening circumstances, i.e. issuance of REP Circular No. 11 of 1993 dated 5th May, 1993 by the Directorate General of Foreign Trade, instead of granting the additional licence the Union of India has been directed to pay to the respondents the premium amount of 20% in terms of the said Circular. Union of India was directed to work out the amount payable subject to the respondents producing the Bank Certificate in respect of the realisation of foreign exchange of export proceeds.

2. The facts which are common to all the appeals being similar are taken from the appeal: Union of India vs. Chowgule & Co. Ltd. & Others.

3. Respondent is a limited company incorporated under the Companies Act, 1956. It is engaged, inter alia, in the export of processed iron ore of Goan origin. It is also recognised as a trading house. Under the Import Export Policy for April 1988-March 1991 (hereinafter referred to as the old policy ) trading houses were eligible for the benefit inter alia of additional licences of defined value against the export of processed iron ore under the policy. Old policy was terminated and instead a new policy starting w.e.f. April 1990-March 1993 (for short the New Policy ) was introduced. During the period 1.4.1989 to 31.3.1990 the respondents had exported processed iron ore of the value of Rupees 21,92,15,711.69. On 4.6.1990 the company applied to the Assistant Chief Controller of Imports & Exports for additional licence of a value of Rs. 2,12,63,924/- against the said exports. The application was rejected by the Assistant Chief Controller of Imports & Exports on 24th September, 1990 on the ground that application for additional licence for the licensing year 1990-1991 could not be considered on the basis of the items appearing in Appendix 12 of the New Policy because there was no provision for grant of licence under the heading transitional arrangements in terms of the paragraph 222 of the New Policy. Respondents preferred an appeal which was dismissed on 21st January, 1991. Likewise second appeal was dismissed on 12th March, 1992. Review Petition filed by the respondents was also rejected on 9th June, 1993.

4. Government of India, Ministry of Commerce, Directorate General of Foreign Trade, Udyog Bhavan, New Delhi issued REP Circular No. 11/93 dated 5th May, 1993 (hereinafter referred to as the Circular 11 of 93 ) providing therein:

"(b) Where the applications for issue of Exim Scrips/RFP etc. licences are pending in respect of exports made and export proceeds realised there against prior to 1.3.92, the 20% premium will be straightway paid, instead of issuing the licences, provided that licensing authority after processing the application and determining the eligibility for issue of licences is satisfied that the applicant is eligible for grant of Exim Scrips/REP etc. licences."

5. On 14th July, 1993 respondents lodged its claim for 20% premium instead of additional licence for the licensing year April-March 1991 against exports of processed iron ore in the preceding licensing year April-March 1990. The claim of the company was rejected by the Deputy Director General of Foreign Trade, Panaji vide letter dated 1st September, 1993 on the ground that minerals and ores appearing in Appendix 12 of the policy book 1990-1993 were ineligible for additional licence.

6. Aggrieved against the aforesaid sets of orders the respondents filed the writ petitions in the High Court of Bombay, Panaji Bench, Goa seeking two

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