TMI Blog1989 (11) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... ay and pending the said Writ Petition before the High Court, they filed the present Reference Application on 17-2-1986, where inter alia they prayed for condonation of delay in filing the reference application. The Writ Petition No. 2588/85 came to be dismissed by the High Court of Bombay on 24-2-1986 wherein an observation was made that the question urged in the Writ Petition could be decided in the Reference and not by way of Writ Petition. The application for condonation of delay was heard by this Bench on 6-5-1986. Vide order No. 543/86, the condonation application had been rejected and consequently the Bench dismissed the Reference Application. The applicants thereafter preferred a Writ Petition No. 1793 of 1986 before the High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and consumables OR the said Item 1 excludes only those goods mentioned in the said Appendices which are nothing but raw materials component and consumables. (v) Whether the definition of consumer goods in the Import Policy for 1983-84 as well as in the Import Policy for 1985-88 includes raw material. 4. Mr. J.C. Patel, the learned advocate on behalf of the applicants, at the time of hearing, however, submitted that the main point that requires to be referred to the High Court is Whether the REP licence issued under 1983-84 AM Policy was valid for import of Hard shell almonds, Dry Figs, Raisins as raw material by Actual User for their end product. Mr. Patel submitted that the applicants are the manufacturers of Chutney Burfi, Chaur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 5 of the said paragraph which reads: Items mentioned in Appendix 4 of the Policy will not be allowed. He then took us through Appendix 4 of the Policy and submitted that serial number attracted would be serial No. 93 which provides that All consumer goods, howsoever described, of industrial, agricultural or animal origin, not appearing individually in Appendices 3,5,8 and 9 or specifically listed for import under Open General Licence. He then submitted that this particular Appendix 4 relates to non-permissible items that is, banned items and submitted that only such of the consumer goods which are totally banned for import can only be called as falling within the purview of Serial 93 and then submitted that under Chapter 12 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt under REP licence. He however laid much stress on the decision of the Supreme Court in M/s. Indo Afghan Chambers of Commerce and Another v. Union of India and Others - reported in AIR 1986 SC 1567 and submitted that the items imported by the applicants have been held as dry fruits by the Supreme Court in the said judgment and as such they are not raw material. The REP licence permitted only import of raw material and when these are not raw material, import was prohibited and the Tribunal judgment is proper. 8. The main point to be considered for the purpose of referring the matter to the High Court is whether there exists any disputed point of law, where clear interpretation is not available and some positive Finding on proper interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw material, the Supreme Court held: We are not satisfied that the consumer goods" in Item 121 of Appendix 2 Part B, cannot refer the dry fruits imported for supply to actual users (industrial)." Examining the parity between the provisions in different policies, the Supreme Court in Para 11 of its judgment observed : .........It was declared that the items excluded from import by diamond exporters under Additional Licences under the Import Policy 1985-88 were the items enumerated in Appendix 3 and Appendix 2 Part A of that Import Policy. Appendix 2 Part A is the successor of Appendix 4 (List of Absolutely Banned Items) of Import Policy 1978-79. A question arose before us whether Appendix 2 Part B of Import Policy 1985-88 could also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to take advantage of Item 121 of Appendix 2 Part B for the purpose of importing dry fruits. As held by this Court in its judgment dated March 5,1986, holders of Additional Licences are entitled to import only those goods which are included in Appendix 6 Part 2 List 8 of the Import Policy 1985-88. Dry fruits are not included in that List and therefore they cannot be imported under Addl. Licences." The Supreme Court therefore held that import of dry fruits by Diamond Exporters was not permissible. 11. The learned advocate Mr. J.C. Patel, however, tried to distinguish the said judgment, principally on the ground that the question before the Supreme Court was of additional licence and not REP licence, and secondly the Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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