TMI Blog1987 (4) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... nt decision, the petitioner is not a party is not relevant. Generally legal positions laid down by the court would be binding on all concerned even though some of them have not been made parties nor were served nor any notice of such proceedings given. Appeal dismissed. - 1483, 1494 , 1544 of 1986 - - - Dated:- 15-4-1987 - R.S. Pathak, C.J., Sabyasachi Mukharji and Ranganath Misra, JJ. [Judgment per: Sabyasachi Mukharji, J.]. - Writ Petition No. 1483 of 1986 is directed against the Show Cause Notices, dated 21st August, 1986, 11th September, 1986 and 26th September, 1986 issued to the petitioners - Messrs. D. Navinchandra Company, a partnership firm and Dilipkumar Dalpatlal Mehta, a partner of the said firm. In order to appreciate this challenge, it is necessary to refer to certain facts. This petition raises the question of the rights of the petitioners and other diamond exporters who were entitled to export house certificates and additional licences under import policy of 1978-79 and who were granted the same pursuant to the judgment and order of this Court, dated 18th April, 1985. As we shall explain later, there is no conflict with this decision of a Bench which co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exports as a condition for the grant of Export House Certificate in the Import Policy for 1978-79. Therefore, while confirming the High Court s judgment, quashing the order impugned in the writ petitions in the High Court, this Court directed the appellants namely Union of India and Import Control authorities to issue necessary Export House Certificates for the year 1978-79. It was further directed that Export House Certificates should be granted within three months from that date. The order stated that save and except items which are specifically banned under the prevalent import policy at the time of import, the respondents shall be entitled to import all other items whether canalised or otherwise in accordance with the relevant rules . The appeals were disposed of accordingly with no order as to costs. Pursuant to the aforesaid order, on 29th July, 1985, import licence was 4. issued, it is claimed, to the first petitioner of the c.i.f. value of Rs. 71,15,900/-. Pursuant to the said import licence, the first petitioner imported several consignments of items falling either under Appendix 3 (List of Limited Permissible Items), Appendix 2 (List of Restricted Items) or Appendix 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted, notwithstanding the construction placed by this Court on the order dated 18th April, 1985 of this Court, to clear the goods imported, or to be imported by them pursuant to such irrevocable letters of credit. In other words, all imports effected pursuant to such letters of credit should be deemed to have been legally and properly made, and should entail no adverse consequences whatsoever. This Court further reiterated that the Court must be presumed to have given effect to law - That presumption can be rebutted only upon evidence showing a clear intention to the contrary, either expressly or by necessary implication. This Court noted that the order, dated 18th April, 1985 which we have set out hereinbefore used the expression specifically banned and the controversy before this Court in Raj Prakash s case was on the meaning of the expression specifically banned and the controversy between the parties ..... round the meaning of the words specifically banned . It was mentioned that Appendix 3 is the list of items which could not be imported by an Export House on additional licence, it was a ban with reference to the category of importers. Appendix 4 is the list of items whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List of Banned Items) of the Import Policy 1985-88. On 17th March, 1986, letter was written by the Joint Chief Controller of 10. Imports to Messrs B. Vijay Kumar and Co. stating that against Additional Licences issued in terms of this Court s Order, dated 18th April, 1985, import of items permissible against Additional Licences in terms of Policy for 1978-79 would be allowed even if such items were in the list of canalised items in Policy for 1978-79. On 3rd April, 1986, there was a meeting with Member of C.B.E.C. and 11. Principal Collector where the minutes recorded that items which were under O.G.L. during 1978-79 and subsequently canalised in Policy for 1985-88 would be allowed to be imported. On 23rd April, 1986, a circular was issued from the Under Secretary to the Government of India to port authorities stating that canalised items were not covered within the purview of this Court s decision in Raj Prakash s case and Additional Licence holders would be allowed to import canalised item. By a letter on 14/15th May, 1986 from Principal Collector to Chairman, Western Region, Federation of Indian Export Organisation, the matter had been clarified and clearance of canalised it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Appendix 2 Part B of the Import Policy 1985-88. As held in that case, holders of Additional Licences were entitled to import only those goods which were included in Appendix 6 Part 2 List 8 of the Import Policy 1985-88. Dry fruits were not included in that list and therefore they could not be imported under Additional Licences. It is stated that on 20th May, 1986, there was an order of adjudication 13. in respect of one consignment of the first petitioner in this case i.e. Messrs. D. Navinchandra Co. of Items falling in Appendix 2B (List of Restricted Items) (10 Bills of Entry) imposing fine aggregating to Rs. 45,000/-. Then on 21st August, 1986, a show cause notice was issued to the first petitioner in this petition in respect of consignment falling in Appendix 5 (Canalised Items) of the Policy for 1985-88. Reply was duly given on 9th September, 1986 and a show cause notice was issued on 11th September, 1986 to the first petitioner in respect of one consignment falling in Appendix 2B (List of Restricted Items) of Policy for 1985-88. In the meantime, this Court had occasion to examine some passage of this decision. This question was examined and it is necessary to refer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Part 2 of Appendix 6 of the Impart Policy of 1985-88 against additional licences. It was found that the goods were purchased by the respondents in that case after they were aware of the position of law as enunciated in Raj Prakash s case as well as Indo Afghan Chambers of Commerce s case. No question of any restitution of rights, therefore, arose. Goods in question being specially banned goods, these could not be imported under Item I of Appendix 6 (Import of items under Open General Licence) of Import Policy, 1985-88, more so the import being not by the Actual User (Industrial) but by somebody else from whom the respondent purchased the goods. This position was reiterated in the case of M/s. Star Diamond Co. India v. Union of India and Others (supra). 16. This Court further reiterated that a decision of this Court is binding on all. To complete the narration of events, reply was given by the first 17. petitioner to the show cause notice, dated 11th September, 1986 on 18th September, 1986. On 26th September, 1986, another show cause notice was issued to the 18. Petitioner in respect of another consignment falling in Appendix 2B (List of Restricted Items) of Policy for T985-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nned under the prevalent import policy at the time of import, the respondents shall be entitled to import all other items whether canalised or not canalised in accordance with the relevant rules. Analysing the said order, it is apparent (1) that the importation that was permissible was of goods which were not specifically banned, (2) such banning must be under the prevalent import policy at the time of import, and (3) whether items which were canalised or un-canalised would be imported in accordance with the relevant rules. These conditions had to be fulfilled. The court never did and could not have said that canalised items could be imported in any manner not permitted nor it could have given a go-bye to the canalisation policy. It must be emphasised that in" the case of Raj Prakash (supra), this 21. position has been explained by saying that only such items could be imported by diamond exporters under the Additional Licences granted to them as could have been imported under the Import Policy of 1978-79, the period during which the diamond exporters had applied for Export House Certificates and had been wrongly refused and were also importable under the import policy prevailing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignoring the canalisation process. We are of the opinion that this Court did not say that canalisation could be ignored. That was not the issue. High public policy, it must be emphasised, is involved in the scheme of canalisation. This purpose of canalisation was examined by this Court in Daruka Co. v. Union of India Ors - 1974 (1) SCR 570 where the Constitution Bench of this Court observed that the policies of imports or exports were fashioned not only with reference to internal or international trade, but also on monetary policy, the development of agriculture and industries and even on the political policies of the country and rival theories and views may be held on such policies. If the Government decided an economic policy that import or export should be by a selected channel or through selected agencies the court would proceed on the assumption that the decision was in the interest of the general public unless the contrary was shown. Therefore, it could not be collaterally altered in the manner suggested. The policy of canalisation which is a matter of policy of the Government was not given a go-bye by the observations referred to in the Order of 18th April, 1985. Indeed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntirely for myself, my conscience protests to me that when thousands remediless wrongs await in the queue for this Court s intervention and solution for justice, the petitions at the behest of diamond exporters and dry fruit exporters where large sums are involved should be admitted and disposed of by this Court at such a quick speed. Neither justice nor equity nor good conscience deserves these applications to be filed or entertained. There is no equity of restitution against the law declared categorically and repeatedly by this Court and no principle of estoppel involved in these applications. The Writ Petition is dismissed and in the facts and circumstances of this 27. case, we direct that the petitioner must pay cost of this application. It has been prayed that clear-cut date must be fixed where contracts had 28. been entered into and in which letters of credit prior to 15th April, 1986 have been entered into, there should be no prosecution. It has been further prayed that where however contracts have been entered into but no letters of credit have been opened, such parties should not be penalised in the facts and circumstances of the case. No direction is necessary by this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
