TMI Blog1986 (5) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... SABYASACHI, JJ. V.M. Tarkunde and Rajiv Datta, F.S. Nariman and A.B. Diwan, P.H. Parekh and Uday Lalit for the Petitioner B. Datta, Additional Solicitor General, Soli J. Sorabji and K.K. Venugopal, A.G. Ganguli, A. Subba Rao, Miss Kutty Kumarmangalam, C.V. Subba Rao, Harish Salve, K.R. Nagaraja, B.R. Agarwala, M.M. Jayakar and Miss V. Menon, for the Respondents JUDGMENT: The Judgment of the Court was delivered by PATHAK, J. The petitioners, M/s Indo-Afghan Chambers of Commerce and its President, Sundar Lal Bhatia, are aggrieved by the grant of additional licences to the respondents, M/s Rajnikant Brothers and M/s Everest Gems for the import of dry fruits. The petitioner, M/s Indo-Afghan Chambers of Commerce, is an association of dealers engaged in the business of selling dry fruit in North India. The dry fruit is purchased by them either locally or through imports from outside India. The respondents, M/s Rajnikant Brothers and M/s Everest Gems, are diamond exporters who have been issued additional licences pursuant to an order of the Court in the following circumstances. The respondents diamond exporters had applied for the grant of Export House Cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e because the diamond exporters could be said to have been warned on and from that date that the Court could possibly take a different view from that prevailing during the period before that date when, because of the orders of the High Courts and the conduct of the Import Control Authorities, the diamond exporters could have legitimately believed that they were entitled to effect such imports. It was made clear by the Court that cases in which irrevocable Letters of Credit had been opened and established after October 18, 1985 would not be entitled to the benefit of that order. The petitioners contend that the principle which was applied to the import of acrylic ester monomers extends likewise to the import of all other commodities under Additional Licences granted to diamond exporters in similar circumstances. It is asserted that the respondents diamond exporters and other like diamond exporters began to import dry fruit under their Additional Licences. It is contended that having regard to the terms of the order of this Court dated April 18, 1985 as construed and clarified by its order dated March 5, 1986 the diamond exporters are not entitled to import dry fruit. By order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icences for the import of raw materials which have been placed on Open General Licence for Actual Users (Industrial). It has not been shown to us that dry fruits were placed on Open General Licence specificially for Actual Users (Industrial). Under the Import Policy 1978-79 their import was open to all persons. We may assume for the purpose of this case that a diamond exporter is legitimately entitled to obtain an Additional Licence under the Import Policy 1978-79 for an item which is different from the item he may have intended to import had the Additional Licences been rightly granted to him originally. In that event, the diamond exporter can succeed only if the item could have been imported under the Import Policy 1978-79 and also under the Import Policy 1985- 88 in accordance with the terms of the order of this Court dated April 18, 1985 as construed by this Court by its judgment dated March 5, 1986. The position in regard to the import of dry fruits (excluding cashewnuts) is simple and suffers from no complexity. As has been mentioned, dry fruits (excluding cashewnuts) could be imported by all persons under the Open General Licence under the Import Policy 1978-79. But un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods of agricultural origin. The words agricultural origin are used in the broadest sense. It is also clear that dry fruits do not appear in Appendix 3 Part- A and 5 nor can be imported under the Open General Licence under the Import Policy 1985-88. Inasmuch as they fall within item (121) of Appendix 2 Part-B they are excluded from the scope of item 1 of Appendix 6, and cannot be imported as raw materials and consumables for sale to Actual Users (Industrial). It is urged by the respondents diamond exporters that item 121 is not attracted because it refers to consumer goods , and consumer goods are not raw material for the purposes of item 1 of Appendix 6. There is a fallacy here. It will be noticed that consumables are referred to in item 1 of Appendix 6 of goods meant for Actual Users (Industrial). We are not satisfied that consumer goods in item 121 of Appendix 2 Part-B cannot refer to dry fruits imported for supply to Actual Users (Industrial). In construing the order dated April 18, 1985 of this Court, the judgment dated March 5, 1986 of this Court explained the singificance of the words specifically banned occurring in the former order. The expression determines t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore they cannot be imported under Additional Licences. In our opinion the respondents diamond exporters are not entitled to import dry fruits under the Import Policy 1985-88 under the Additional Licences possessed by them. They are also not entitled to the benefit extended by the judgment of this Court dated March 5, 1986 to those diamond exportes who had imported items under irrevocable Letters of Credit opened and established before October 18, 1985. It appears from the record before us that the respondents diamond exporters opened and established the irrevocable Letters of Credit after that date. One more contention of the respondents diamond exporters remains to be noticed. It is urged that the writ petition under Article 32 is not maintainable because the petitioners fundamental rights are not violated. It is pointed out that no appeal has been filed by the Customs authorities or by the Import Control authorities against the interim order dated January 8, 1986 of the Bombay High Court directing the Customs authorties to permit M/s Everest Gems to clear the imported consignment of almonds. We do not think that an interim order can defeat the fundamental rights of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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