TMI Blog1997 (10) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... en though that was the main issue raised in the writ petition before the High Court. As we are not in agreement with the view expressed by the High Court on other issues, it is now necessary for the High Court to consider the issue relating to the right of the appellant to fix the price from time to time. It is open to the appellant to raise the question of unjust enrichment when the matter is taken up by the High Court pursuant to this remit order. The parties can place before the High Court necessary material in support of their respective contentions on the issue of unjust enrichment. - CIVIL APPEAL NO. 2889 OF 1985 AND S.C.A. NO. 3752 OF 1985 - - - Dated:- 17-10-1997 - M.M. PUNCHHI AND K. VENKATASWAMI, JJ. Dhruv Mehta, Ms. Monica Mehta and S.K. Mehta for the Appellant. P.H. Parekh, Amit Dhingra and C.V. Subba Rao for the Respondent. JUDGMENT Venkataswami, J. - This appeal by special leave is directed against the Division Bench judgment of the Gujarat High Court dated 7-2-1985. The brief facts concerning the case are given below. 2. The first respondent-company is engaged in the manufacture of steel tubes through its Ambica Tubes Division. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd also stated that in view of the defects, the appellant is not taking any action on the letter of credit for the present. 5. In reply to the telex message, Ambica Tubes sent a letter on the same date 23-8-1983, informing the appellant that the original release order in duplicate and the duty exemption entitlement certificate booklet had been submitted to the joint controller at Ahmedabad and would be sent to the Bombay SAIL office on receipt of the same. The relevant docu- ments after carrying out the corrections were factually furnished to the appellant by Ambica Tubes only on 26-8-1983. In the meanwhile, the appellant enhanced/revised the price of their supplies (steel materials) from Rs. 2,460 to Rs. 2,750 per metric tonne on and from 25-8-1983. Since the relevant documents after carrying out the corrections with necessary enclosures were received by the appellant only on 26-8-1983, the importer (Ambica Tubes) was required to pay the price for the release of steel materials at the revised rate, namely, Rs. 2,750 per metric tonne. 6. Ambica Tubes made representations that they having submitted letter of credit and the necessary documents, though defective, well before 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption entitlement certificate. It forgot to mention that it is an advance release order, though the covering letter did mention it. The petitioners no doubt got these things rectified, but because of the communication difficulties, there was a delay of a day or two. How can that fortuitous circumstance be exploited by SAIL by seeking a pound of flesh? They should have seen reason and should not have chastised this petitioner-company for the faults of the employees of the very Union of India, their masters. Such amendments required to be made later on because of the negligence and carelessness of the employees of the Union of India are to be legitimately treated as having been effected retroactively. This is the only reasonable and rational way of looking at things. Negligence of one branch of the Union of India cannot be capitalised by another branch of the very Union of India. This action is per se arbitrary, capricious and whimsical. Such an illegal action is taken by the Ahmedabad officer or the Bombay Office. Another reasonable office of this very SAIL say at Madras or Banglore would not do such things and citizens like the petitioners there would be favourable treated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of India. It will not be a wing/department of the Government. In support of his contention, he placed reliance on the judgments of this Court in Dr. S.L Agarwal v. General Manager, Hindustan Steel Ltd. AIR 1970 SC 1150 and Western Coalfields Ltd. v. Special Area Development Authority AIR 1982 SC 697. He also submitted that in the absence of a decision regarding the power of SAIL to revise the price list from time to time, the relief given by the High Court would amount to refund of money by exercising the jurisdiction under article 226 which is against the ruling of this Court in Suganmal v. State of Madhya Pradesh [1965] 56 ITR 84. He also submitted that the importer being a party to the contract and having paid the price as revised and taken delivery of the goods cannot now turn around and challenge the action of the SAIL by invoking the writ jurisdiction under article 226 of the Constitution of India. In support of this submission, he placed reliance on a judgment of this Court in Har Shankar v. Dy. Excise Taxation Commissioner [1975] 1 SCC 737. 10 He also placed reliance on other judgments of this Court in Radhakrishna Agarwal v. State of Bihar AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto account, besides ( a ) and ( b ) mentioned above, the approximate amount of duties/taxes/levies, etc., chargeable on such supplies. The actual supply will be restricted to the quantity which can be supplied against the surrendered import licence provided the amount for which financial arrangements are made permits the same." Para 2.3 reads as follows : "2.3. The price as announced for supply of materials under this scheme shall be subject to periodic revisions. The price chargeable shall be the prices ruling on the date of delivery which shall be the date of the railway receipt in the case of direct dispatches by rail and the date of the delivery challan of SAIL's stockyard in the case of ex-yard delivery, except in the following cases where the chargeable prices shall be the prices ruling on the date on which acceptable and operative financial arrangements are made in favour of SAIL by import licence holders eligible to get supplies under this scheme: ( a )Where the financial arrangement made in favour of SAIL is such that it enables SAIL to effect dispatches on a continuing basis without any restrictions about delivery schedule; this will also include an irrevocable c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the High Court erred in thinking that SAIL was a department of the Union of India and most of the reasons given in the judgment are based on this wrong premise. 15. The importer in this case, it is an admitted fact, is a registered exporter of steel pipes entitled to priority allotment of steel either through imports or from indigenous plants like the appellant. The allotment of steel was for manufacture of steel pipes for export against advance licence granted to the importer from time to time. During the relevant period, hot rolled strips in coils manufactured by plants under SAIL were available in sufficient quantity and hence the direct imports of the raw materials were banned and the manufacturers were required to obtain the supplies of the raw materials from the appellant against the import licences with them and/or release orders issued by the licensing authority, namely, the Chief Controller of Imports and Exports. 16. Various categories of licences are granted for the purpose of imports to the manufacturers. One such licence was advance. Paragraph 149 of the Import Policy provided for grant of advance licence/imprest licences and the relevant part of paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and, therefore, it must be taken that the importer knew fully well about the requirements for registering the indent. It is also relevant to note that the appellant on receipt of the application for registration expressly and in writing replied not only pointing out the defects but also stated that they are not taking any action on the letter of credit enclosed along with the licence. It is also an admitted fact that the indent was registered only on 26-8-1983, when all the relevant documents after curing the defects were presented on that date. Under these circumstances and in the light of the scheme published by the appellant, we hold that the importer (Ambica Tubes) cannot claim as of right that its order must be deemed to have been registered for supply of raw materials on 20-8-1983, when the documents with all defects were presented. 18. We cannot agree with the contention of Mr. Parekh that mere presentation of an irrevocable letter of credit covering the value of requirement of raw materials is sufficient for registering the indent. We have already set out para 2.3. Paragraph 2.3 of the scheme announced on 10-6-1983, decides the price to be paid for the indent. Mr. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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