TMI Blog2013 (10) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... advance licences. From a reading of paras 48 and 66 of the Export and Import Policy, as in vogue during the period appellants had applied for advance licences, this Court is of the view that respondent was bound to issue advance licences only in accordance with the policy in force on the date of issuance of licences. Reason for long period of 16 years taken for final judicial pronouncement - all parties to litigation as well as all counsel are under a duty to place on record true, complete and correct facts. If material facts like relevant paras of the export and import policy are suppressed, distorted, withheld or not placed either intentionally or unintentionally, the writ courts would find it difficult to dispense justice expeditiously - if correct para 66 of the Export and Import Policy during the period 1992 to 1997 had been brought to the notice of this Court at the earliest, rather than at the stage of final hearing before the Division Bench, the present proceedings would not have lasted for nearly sixteen years - Decided against assessee. - LPA 976-977/2006 - - - Dated:- 8-10-2013 - CJ Manmohan,JJ. For the Appellant : Mr. G. L. Rawal, Senior Advocate with Mr. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant portion of the impugned judgment is reproduced hereinbelow:- "In the light of the aforesaid provisions of the Export and Import Policy 1992-1997 and the judgments of the Supreme Court and of this Court, it is clear that the petitioners had no vested right to have import licences in terms of the policy in force at the date of making the applications. Granting of licences depends upon the policy prevailing on the date of the grant of licence. Therefore, the decision of the respondents to grant quantity based licences in terms of the policy prevailing at the time of grant of licence is upheld." 9. Mr. G.L. Rawal, learned senior counsel for the appellants submitted that learned Single Judge failed to appreciate the scope of para 66 of the Export and Import Policy for the period 1992 to 1997. According to him, the said para entitled the appellants to value based licences inasmuch as it stipulated that licences were to be issued based on norms in force on the date of receipt of the application by the licensing authority. 10. Mr. Rawal further submitted that the learned Single Judge failed to appreciate the distinction between para 48 and para 66 of the Export and Import Poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny Duty Free Licence shall be made in the form prescribed in Appendix XVII of the Handbook and all columns thereof shall be duly filled including the quantity of each item to be imported, its broad technical characteristics and its CIF value, based on the prevailing international price. Similarly, each item of export with its broad technical characteristics shall be enumerated and the quantity and FOB value of each item shall also be specified. An application which is not in the prescribed form and which is not complete in all respects shall be rejected. Where the application is complete in all respects, the licensing authorities shall issue the licence along with DEEC Book (Part II) for export duly filled in all respects within five days. DEEC Book (Part I) for import may be issued when the applicant comes for endorsement of LUT. 258. Every endeavour shall be made by the licensing authorities to dispose of the applications for grant of import/export licences etc. expeditiously. However, to ensure that there is no undue delay, the following time schedule will normally be followed to dispose of the applications provided the application is complete in all respects and accompanied w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach the petitioners, would not take away their right to enjoy the fruits of the licence. The matter cannot be left to the whims of the person who had to undertake the despatch of the licence." 13. On the other hand, Mr. Sachin Datta, learned standing counsel for respondent-UOI contended that para 66 referred to and relied upon by learned senior counsel for the appellants was inapplicable to the present case as during the period appellants had applied for licences, the unamended para 66 was in force. Mr. Datta in Court handed over a photocopy of the Export and Import Policy for the period 1992 to 1997 incorporating amendments up to 31st March, 1993. Para 66 in the said Policy reads as under:- "66. Exports/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 in accordance with the policy and procedures in force on the date of its issue. 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 licensing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the policy and procedure in force on the date of issue of the licences. It is pertinent to mention that on 20th August, 1993 the Export and Import Policy underwent a change whereby only quantity based licence and not value based licence was to be issued to exporters of silk products. 21. We are of the opinion that the argument of learned senior counsel for appellants though attractive, is without foundation inasmuch as para 66 of the Export and Import Policy relied upon by him was not applicable during the period the appellants had applied for grant of advance licences. 22. In any event, the notification dated 8th February, 1994 did not have retrospective effect. The Supreme Court in Darshan Oils Pvt. Ltd. and Another Vs. Union of India and Others, (1995) 1 SCC 345 has held as under:- 6. The submission of Shri Harish Salve, learned counsel for the appellants is that an irrevocable letter of credit having been opened by the appellants in favour of the foreign supplier on 3-10-1983 prior to amendment of the Policy by the public notice dated 11-11-1983, it was not feasible for the appellants to prevent the shipment of the goods thereafter, and, therefore, not extending the ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a canalised item being made after amendment of the Policy by the public notice dated 11-11-1983 in a manner not permitted by the amended Policy, the appellants cannot claim to avoid the logical consequences of the import being made contrary to the Import Policy prevailing at the time of import of the goods. Exemption under the amended Policy being limited to shipments already made cannot be termed unreasonable or unduly restrictive. Obviously, the exception was made to cover only those goods of which the shipment had been made and were in transit, excluding all such goods of which no shipment had been made. The classification between goods in transit and those of which the transit had not begun, cannot be called irrational or unreasonable in the context. (emphasis supplied) 23. As opposed to para 66 in vogue at the relevant time, appellants had relied upon its amended version as amended vide notification dated 8th February, 1994. This Court is of the view that the prospective amendment dated 8th February, 1994 would not enure to the benefit of the appellants since the said amendment came into effect when the policy of value based licence had already been discontinued. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . and Others Vs. Asstt. Director General of Foreign Trade and Others, (1996) 2 SCC 439 the Supreme Court has held as under:- 10. We are, therefore, of the opinion that the contention that a vested right accrues to an applicant for issuance of advance licence on the basis of the norm obtaining on the date of application is unacceptable. The scheme and the context militate against the contention. The fact that the policy is statutory in nature (delegated legislation) has no relevance on the question at issue. It would be wrong to equate the filing of an application for advance licence with the filing of a suit where it is held that appeal being a substantive right, the right of appeal inhering in the party on the date of filing of the suit cannot be taken away by a subsequent change in law. xxxx xxxx xxxx xxxx 12. Now, coming to the argument of the authorities taking advantage of their own wrong, viz., delay in issuing the advance licences, it may be noticed that there is no allegation/averment in the writ petition that the authorities have deliberately delayed the issuance of the advance licences. We have mentioned hereinbefore that issuance of these licences is not a formali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had the effect of destroying the petitioner's right to carry on a trade or business. This contention also has no merit. (emphasis supplied) 27. Further, the judgment of G.D. Impex International (India) Anr. (supra) relied upon by learned senior counsel for the appellants is clearly inapplicable to the present matter as in the said case the respondent had not only processed the application of the petitioners but had even issued licences prior to change in policy of issue of quantity based licence instead of value based licence. 28. This Court is further of the opinion that the only purport of effectuating the amendment in paragraph 66 was to apply the input output and value addition norms in force on the date of receipt of application under the scheme by the Licensing Authority. These norms are relevant both for the purposes of value based advance licences and also quantity based advance licences. 29. In view of the respondent s counter-affidavit that delay in processing advance licence applications was entirely on account of appellants laxity in furnishing the exact quantity of export and import, this Court is of the opinion that in the present proceedings, no conclusiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow. 31. Though a feeble attempt was made by appellants senior counsel in rejoinder to challenge the policy of issuance of quantity based licence instead of value based licence, we are of the opinion that the said plea cannot be entertained in the present case as there is neither any prayer nor any ground either in the writ petition or the present appeal to this effect. 32. Before parting with this case, we would like to emphasise that all parties to a litigation as well as all counsel are under a duty to place on record true, complete and correct facts. If material facts like relevant paras of the export and import policy are suppressed, distorted, withheld or not placed either intentionally or unintentionally, the writ courts would find it difficult to dispense justice expeditiously. In K.D. Sharma Vs. Steel Authority of India Limited Ors., (2008) 12 SCC 481 the Supreme Court has held as under:- 38 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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