TMI Blog1994 (4) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant writ petition are as follows :- The petitioner No. 1 is a Public Limited Company, within the meaning of Companies Act, 1956. The petitioner No. 2 is the Director of the petitioner No. 1 company. Most of the share-holders of the petitioner No. 1 carry on business and/or hold property through the agency and/or instrumentality of the petitioner No. 1. Formerly the name of the petitioner No. 1 was M/s. Sarda Brothers Limited and that on and with effect from March 18, 1993, the name of the petitioner No. 1 has been changed to M/s. S.B. International Limited and in this respect, the Registrar of Companies, Assam, Meghalaya, Shillong, etc. has issued fresh Certificate of incorporation. 4. The petitioner No. 1 carries on the business of exporting frozen marine products from India to various foreign countries. The said marine products are exported after being duly packed in polythene bags. The petitioner No. 1 is a registered exporter and a recognised Export House and is holding a valid Export House Certificate, issued by the appropriate authorities of the Government of India, in this regard. 5. The Import Policies, issued by the Government of India, Ministry of Commerce, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -density polythene (hereinafter referred to as LDPE) and the percentage of value addition was 1000. A copy of the said Public Notice dated March 31, 1992, has been annexed as Annexure A to the writ petition. 10. Between June 10, 1992 to June 22, 1992, the petitioner No. 1 entered into different export contracts, with its various foreign buyers, for export of frozen marine products. Particulars of the said contracts, namely, F.O.B. value of the exports covered by each of the said contracts, name of the buyer, delivery period etc. has been given in a separate statement, being Annexure B to the writ petition. 11. Further, it is the case of the petitioners that the petitioner No. 1 duly filed applications for value based advance licences, in respect of the said export contracts, under the Duty Exemption Scheme, in the prescribed forms. Details of the said applications filed by the petitioner No. 1, has been given in a statement, which is Annexure C to the writ petition. 12. In the said applications, all relevant facts, namely, the total F.O.B. value of the exports, delivery periods, details of the products to be exported, value of the products to be exported, etc. were duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1992 and 00181 dated September 15, 1992, the petitioner No. 1 exported 87.24% and 21.25% of the total quantity before September, 25, 1992, respectively. In the relevant shipping bills, as well as, in the connected invoices, it was duly stated by the petitioner No. 1 that it has duly applied for value based advance licences in respect of the said exports. 19. On September 25, 1992, another Public Notice bearing No. 54/PN/92-97 was issued, whereby various amendments were made in the said earlier Public Notice dated March 31, 1992. Entry No. 1 under the main heading fish and fish products in the earlier Public Notice was substituted by a new entry and entry Nos. 2 and 3 of the said earlier Public Notice dated March 31, 1992, were deleted by the said amendment. The effect of the said amendments made by Public Notice dated September 25, 1992, inter alia, was that the value addition percentage applicable to value based licences against export of frozen marine products, packed in polythene bags, was changed from 1000% to 1900%. Copy of the said Public Notice dated September 25, 1992 has been annexed as Annexure F to the writ petition. 20. According to the petitioners, after the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him that the Public Notice dated September 25, 1992 did not and could not have any application in the instant case. During the said discussions, the representative of the petitioner No. 1 requested the Deputy Controller to issue, for the time being, the said licences, as per the present norms, without prejudice to any of the rights and contentions of the petitioner. 25. Thereafter, the Assistant Director General of Foreign Trade, being the respondent No. 1, in the month of February 1993, issued the advance licences, pursuant to the said five applications, in favour of the petitioner No. 1 by applying the prevailing norms, as per the said Public Notice dated September 25, 1992 and the advance licences, so issued, were accepted by the petitioner No. 1, without prejudice to any of its rights and contentions and reserving its right to take necessary actions in accordance with law in case its claims for issuance of the said licences on the basis of the norms prevailing prior to September 25, 1992, were ultimately not accepted and/or rejected by the respondents. 26. In such background, the present writ petition was moved for issue of necessary Writ, against the respondents, referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority are acceptable towards discharge of export obligation. The said provision would also establish that the relevant date for fixation of norms is the date of receipt of the application by the licensing authority. 32. It was also contended that in the instant case, out of the five applications, in respect of three applications, full exports of the resultant products had already been made prior to September 25, 1992. Even in respect of the remaining two applications, substantial quantities of about 87% and 21% of the resultant export products had already been exported prior to September 25, 1992. In such circumstances, and assuming though not admitting that the advance licences had to be issued by applying the norms, as prevailing on the date of the export, even in that situation, in respect of the exports, already made prior to September 25, 1992, there was or is absolutely no scope whatsoever to apply the new norms , as per the said Public Notice dated September 25, 1992. 33. Further, according to the petitioners, applying the old norms in respect of other applicant, simply due to the time taken by the licensing authority, in issuing the licences, would amount to make a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect from April 1, 1993, that advance licences were required to be issued by applying the norms as prevailing on the date of application. 40. It was further submitted by Mr. Roy Chowdhury that as a matter of fact, paragraph 66 of the Import Policy, after it was amended with effect from April 1, 1993, was again substituted by a new paragraph by Notification No. 27(RE)/92-97, dated February 8, 1994 and the said new paragraph provides as follows :- 66. Export/Supplies made from the date of receipt of an application under this scheme by the licensing authority may be accepted towards discharge of export obligation. If the application is approved, the licence shall be issued based on the input output and value addition norms in force on the date of receipt of application, by the licensing authority in proportion to the provisional exports already made till any amendment in the norm is notified. For rest of the exports, the Policy/Procedure in force on the date of issue of the licences shall be applicable. The conversion of duty free shipping bills to drawback shipping bills may also be permitted by the Customs Authorities in case the application is rejected or modified by the licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice dated September 25, 1992, whereby the norms of the value addition was changed from 1000% to 1900%. After the amendment of the said policy, by the Public Notice dated September 25, 1992, the petitioner was requested by a letter of the Assistant Controller of Imports Exports to submit a revised application for advance licence, as per the amended norms. 46. On diverse dates, the licensing authorities granted five advance licences, in terms of the norms prevailing on the date of issue of the licence with the following rider :- In order that you have no difficulty in operating licence `CPP please check up whether the licence as well as the list of goods attached with, bear the signature and security seal, No. of the licensing authority and the licence is complete in all respects, if any discrepancy is noticed to submit the licence for necessary amendment immediately on receipt of the licence letter. 47. According to Mr. Ghosh, it does not appear that the petitioner received the said licences under protest or availed the benefit of the licence, under any protest and that the instant writ petition was moved sometime in October, 1993. 48. Mr. Ghosh submitted that prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from entitlement of grant of licence. The essence of duty exempted scheme for advance licence had always been to the effect that a merchant exporter is entitled to apply once he has confirmed order for export, but his entitlement to get licence is on the norms prevailing at the time of issuance of licence. If he exports anything from the date of application in the expectation of grant of licence, he will do so, at his own risk and he will not be entitled to any benefit, if his application is rejected. 53. In this connection, Mr. Ghosh strongly relied on paragraphs 3 and 4 of the Policy effective from 1st April 1992 to 31st March, 1997 in Chapter I, which runs as follows :- 3. The Central Government reserves the right in public interest to make any amendments to this policy. An amendment shall be made by means of a Notification published in the Official Gazette. 4. Any Notification made or Public Notice issued or anything done under the previous Export-Import Policies, and in force immediately before the commencement of this policy shall, in so far as they are not inconsistent with the provisions of this policy, continue to be in force and shall be deemed to have been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given any retrospective effect, being an administrative order. 60. Accordingly, the amendments made to paragraphs 48 and 66 of Import Policy are to be given effect from April 1, 1993 onwards and the further amendments made to paragraph 66 of the Import Policy are to be effective from February 8, 1994 onwards, as none of the aforesaid amendments have been given retrospective effect. 61. Further, in my view, it would be absurd to suggest that even though the applicant entered into the export contracts on the basis of the old norms and even though such old norms prevailed on the date of filing of the application and even though the applicant was in fact allowed to export the goods immediately after filing of the application and without waiting for actual grant of the licence and even though such exports are to be accepted towards discharge of the export obligation, the licence will be issued not by applying the old norms as prevailing on all the aforesaid dates but by applying the norms as prevailing on some future unknown date, when the licence is actually issued. 62. It is a known fact that the processing of the application for import licence may take long periods in the offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the last two applications, inasmuch as, the said exports were already made prior to the amendment of the norms. However, since the said amendment made by the notification dated February 8, 1994 has not been given any retrospective effect, the same is irrelevant for the present writ petition. 66. It has been contended on behalf of the respondents that the Chief Controller of Imports Exports always has the liberty to modify the norms. There is no dispute about the aforesaid position. However, the modified norms cannot be applied in respect of the pending applications, that is, the applications already filed before such modification. This aspect of the matter has already been dealt with above. 67. Subsequent amendments in the norms, if sought to be applied, will clearly be hit by the Doctrine of Promissory Estoppel or the principles analogous thereto. The judgments relied upon by Mr. Ghosh do not, in any way go against the aforesaid proposition. In the case of Andhra Industrial Works v. Chief Controller, reported in AIR 1974 S.C. 1539, the facts were completely different. It was not a case where the petitioner had acted on any representation and filed the applications and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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