Back
1993 Supreme(Cal) 468
High Court Of Calcutta
Ajit Kumar Sengupta, Nure Alam Chowdhury
ENTERPRISE INTERNATIONAL LTD. - Appellant
Versus
COLLECTOR OF CUSTOMS - Respondent
Matter 292 Of 1993
Decided On : 10/12/1993
A.LAW, BHASKAR SEN, S.K.SENGUPTA, S.MEHETA
A vested right to import goods conferred by a valid license cannot be taken away by a mere clarification or circular.
Headnote:
IMPORT AND EXPORT POLICY - REP LICENCES/EXIM SCRIPS - VALIDITY OF LICENCES ISSUED PRIOR TO NEW POLICY - CUSTOMS AUTHORITIES REFUSAL TO RELEASE RAW SILK IMPORTED UNDER REP LICENCES/EXIM SCRIPS - LEGALITY - CIRCULAR CLARIFICATION RESTRICTING IMPORT OF ITEMS COVERED BY NEGATIVE LIST - VALIDITY - IMPORT CONTROL ORDER, 1955 - PARAS 9 AND 10 - IMPORTS AND EXPORTS (CONTROL) ACT, 1947 - SECTION 3 - EXPORT AND IMPORT POLICY, 1990-93 - PARAGRAPH 192(1) - EXPORT AND IMPORT POLICY, 1992-97 - CHAPTER 1 - PARAGRAPH 4 - CIRCULAR NO. 19/92-97 DATED 17TH DECEMBER, 1992.
Fact of the Case:
Petitioners challenged the circular issued by the respondent authorities restricting the import of raw silk under REP Licences/Exim Scrips and the refusal to release raw silk imported by them.
Finding of the Court:
The court held that the impugned circular was illegal and quashed it. It directed the release of the remaining 20% of the goods to the petitioners within 3 weeks.
Issues: Whether the circular issued by the respondent authorities restricting the import of raw silk under REP Licences/Exim Scrips was valid.
Ratio Decidendi: The court held that the petitioners had a vested right to import goods in terms of the Exim Scrips/rep licences read with paragraph 192 of the Old Policy and that they could not be deprived of such right. The clarification sought to be made by the Director General of Foreign Trade was no clarification at all. The vested right of the petitioners cannot be taken away by virtue of a mere clarification.
Final Decision: The court allowed the writ petition, set aside and quashed the impugned circular, and directed the release of the remaining 20% of the goods to the petitioners within 3 weeks.
( 1 ) THIS writ application has been referred to this Bench by a learned Single Judge of this Court. This question involved in this writ application is the scope and effect of a circular being Circular No. 19/92-97 dated 17th December, 1992 issued by the respondent authorities. The petitioners challenged the said circular as well as the refusal on the part of the respondent authorities to release raw silk imported by the petitioners under REP Licences/exim Scrips.
( 2 ) IT is the case of the petitioners that under the Import and Export Policy 1990-93 raw silk was allowed to be imported under REP Licences/exim Scrips by virtue of paragraph 192 of Chapter XV of the Import and Export Policy. That paragraph declared that REP Licences/exim Scrips are also valid for import of any other items of raw materials, components, tools, consumables and packing materials listed in Appendices 3 and 5, Part A. It is not in dispute that raw silk was included in Appendix 5, Part A of the Import and Export Policy 1990-93.
( 3 ) ON 1st April, 1992, a new Import Policy being the Export and Import Policy 1992-97 came into force. Chapter I of the new Policy provided, inter alia, 'licences issued before the commencement of this Policy shall continue to be valid for import/export of the items permitted therein. '
( 4 ) THE petitioners had purchased REP Iicences/exim Scrips issued under the old Policy. Between 19th November, 1992 and 19th December, 1992, the petitioners entered into contracts with foreign sellers for import of raw silk. The petitioners also opened irrevocable Letters of Credit in favour of foreign sellers in respect of the contracts between 25th November, 1992 and 22nd December, 1992.
( 5 ) IT is the admitted case, at least from the affidavits filed, that the Customs Authorities had allowed various raw silk consignments to be cleared between 1st April, 1992 and August/september, 1993 aginst REP Licences and Exim Scrips.
( 6 ) FROM 17th Sep. , 1992 till 3rd January 1993, the Customs Authorities released the raw silk only provisionally upon P. D. Cum I. T. C. Bond.
( 7 ) IT appears that on 17th December, 1992, a circular was issued by the Office of the Director General of Foreign Trade. The Circular stated by way of clarification that import would not be permitted against Exim Scrips/rep Licences if they were endorsed in general terms for import items listed in Appendix 3 or Appendix 5, Part A of 1990-93 Policy. If they were specially endorsed, clearance would be allowed against Exim Scrips/rep Licences.
( 8 ) IN the Imports and Exports Policy, 1990-93 Raw Silk was allowed to be imported under REP licences/exim Scrips by virtue of the paragraph 192 of Imports and Exports Policy, 1990-93. REP Licences/exim Scrips were issued to exporters as export incentives and were freely transferable.
( 9 ) NEW Policy 1992-97 came in before expiry of Policy 1990-93. As indicated earlier the new policy provided that licences issued before commencement of new policy shall continue to be valid for import/export of the items permitted therein.
( 10 ) IN our view, the respondent cannot refuse to release the subject goods on the plea of the amendment or clarification by the impugned circular. The petitioners had a vested right to import goods in terms of the Exim Scrips/rep licences read with paragraph 192 of the Old Policy and that they could not be deprived of such right
( 11 ) IT is now well settled that till such time licence is cancelled, petitioners are entitled to import goods mentioned and/or allowed by the licence. In the present case, there is no dispute as to the validity of the licence.
( 12 ) THE clarification sought to be made by the Director General of Foreign Trade is no clarification at all. The vested right of the petitioners cannot be taken away by virtue of a mere clarification. The Supreme Court in Bengal Iron Corporation v. Commercial Tax Officer, reported in held:"so far as clarifications
