2004 (6) TMI 493 - HC - Customs

Writ jurisdiction Article 226 of Constitution of India - Scope of - Import - Export - Advance licence transferability

Summary

Issues Involved:
1. Refusal to revalidate the petitioner's licence.
2. Exclusion of licences endorsed for transferability from public notices.
3. Delay in endorsing transferability and revalidation of the licence.
4. Legal right to the benefit of public notices.

Detailed Analysis:

1. Refusal to Revalidate the Petitioner's Licence:
The petitioner company challenged the respondents' actions, which included refusing to revalidate the licence and all related proceedings. The petitioner initially applied for a quantity-based advance licence under the Duty Exemption Scheme in November 1994, which allowed duty-free import of raw materials contingent on fulfilling export obligations. The licence was issued on March 14, 1995, but the petitioner faced difficulties importing the raw materials due to poor availability and high prices. The licence was amended in July 1997 to allow alternative raw materials and was revalidated until September 30, 1997. Despite efforts, the petitioner could not import the remaining quantity before the licence expired.

2. Exclusion of Licences Endorsed for Transferability from Public Notices:
On December 31, 1997, a public notice allowed endorsement of transferability even if the licence had expired, provided the export obligation was completed by December 31, 1997. The petitioner applied for this endorsement on February 19, 1998. However, the respondents raised queries and denied the benefit of transferability, citing the petitioner's availed Modvat credit. Despite clarifications and subsequent representations, the respondents maintained their stance, ultimately rejecting the petitioner's request for revalidation on November 20, 2000, and again on May 24, 2001, citing the exclusion of licences endorsed for transferability from the public notice dated March 31, 2001.

3. Delay in Endorsing Transferability and Revalidation of the Licence:
The petitioner argued that the delay in endorsing transferability was unjustified. The public notice dated October 1, 1999, required endorsements by November 30, 1999, but the endorsement was only made on March 21, 2000, leaving insufficient time for the petitioner to utilize the licence. The respondents countered that the delay was due to doubts about the petitioner's eligibility under the public notice and that the petitioner should have ensured shipment within the validity period. The respondents also highlighted that the public notices consistently excluded revalidation for licences endorsed with transferability.

4. Legal Right to the Benefit of Public Notices:
The core issue was whether the petitioner was entitled to the benefit of the public notice dated March 31, 2001. The court examined the notification, which explicitly excluded licences with transferability endorsements from revalidation. Since the petitioner's licence had already been endorsed for transferability by the time the notification was issued, the petitioner did not meet the conditions for revalidation. The court emphasized that relief under Article 226 of the Constitution of India requires a legal right in the petitioner's favor, which was absent in this case. The court also referenced the Supreme Court decision in Priyanka Overseas Pvt. Ltd. v. Union of India, noting that while authorities' delays should not penalize applicants, this principle does not apply when the law does not create any right for the petitioner.

Conclusion:
The court dismissed the writ application, finding no merit in the petitioner's claims. The petitioner was not entitled to the benefit of the public notice dated March 31, 2001, as the licence had already been endorsed for transferability, and the law did not provide any right for revalidation in such cases. The petitioner's request for relief was denied, with no costs awarded.