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2009 (8) TMI 74

..... contention of the importer is that if an importer wants to import goods under Tariff Entry 98.01, under R.E.P licence the regulation 5(4) would not be attracted as the contract which has to be registered can only be done in a case where where there is an Import Trade Control licence – Held that - The intent of the legislature must be given its due meaning - the expression “wherever required” would have to be read in the context that in a case where a person seeks to import licence or a REP licence then there is no need for Import Trade Control Licence. - if contracts entered into are registered with then the import can be done either under an Import Trade Control licence or R.E.P. Licence so long as the importer has a contract in which the goods sought to be imported are specified and the import is based on the Import Policy - 930 OF 1991 - 25-8-2009 - F. I. REBELLO and D.G. KARNIK, JJ Mr.V. Sreedharan with Mr.Jeetu Motwani i/b PDS Legal for the petitioner. Mr. P.S. Jetly with Mr.Rajinder Kumar for respondents. [Judgment per FERDINO I. REBELLO, J)]. - The petitioners held an Industrial Licence for setting up a plant in Bharuch District in the State of Gujarat for the manufacture of .....

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..... ound to comply with the requirements of Regulations 5(4) of the Project Import Regulations 1986 viz. That the petitioners had to import licence. In the instant case, petitioners instead of having an import licence were having an REP licence. It is the stand of the respondent that it is not possible considering the language of Regulation 5(4) to use an REP licence for registering the contract considering the specific language of the Regulation. An additional affidavit filed by Respondent in Writ Petition no.2335 of 1991 in the case of Videocon International Ltd. Vs. Union of India was relied upon. In that affidavit, it was set out that the imports have been claimed under flexibility provisions of the ITC provisions. It is further set out that for Import Trade Control purposes the REP licence produced is valid. It is however further clarified that the said goods imported may be allowed to be cleared on payment of usual Customs duty under the respective Tariff Heading on the strength of the same REP licence under the flexibility provisions. However for grant of concessional rate of duty under Project Import and for seeking assessment of imported goods under Tariff Heaing 98.01 of CTA, .....

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..... s made by Central Government, any state Government, statutory corporation, public body or Government undertaking run as a joint stock company (hereinafter referred to as Government Agency ) as soon as clearance from the Directorate General of Technical Development or the concerned sponsoring authority, as the case may be, has been obtained. 3. The application shall specify (a) the location of plant or project (b) the description of the articles to be manufactured, produced mined or explored (c) the installed or designed capacity of the plant or project and in the case of substantial expansion of an existing plant or project the installed capacity and the proposed addition thereto; (d) Such other particulars as may be considered necessary by the proper officer for purposes of assessment under the said heading. 4. The application shall be accompanied by the original deed of contract together with a true copy thereof, the import trade control licence wherever, required specifically describing the articles licensed to be imported or an approved list of items from the Director General of Technical Development or the concerned sponsoring authority, in the case of imports covered by Open .....

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..... ms of raw materials, components, tools, consumables and packing materials listed in Appendices 3 and 5 Part A and instruments (other than those included in Appendices 1 Part A, 2 Part B and 8) in this policy provided import of single item of components and tools does not exceed Rs.10 lakhs. However, import of raw materials, consumables and packing materials listed in Appendix 3 and 5 Part A and Instruments will not be subject to any single item value restrictions ..... . 7. If we examine the policy behind the regulation it would be clear that the object of the policy is to register the contract to enable the importer who is setting up a Project under the Import Scheme to import goods under Tariff Entry 98.01 against the rate of duty as set out thereto. The said policy was necessitated as can be seen from the Budged Speech of 1965 of the Minister of Finance. We may gainfully reproduce the relevant portion of that speech There have often been complaints that the Import of equipment by the project is impeded as a result of meticulous assessment at the appropriate rates of each constituent item required for setting up the project. I now propose to introduce a new tariff item to cover t .....

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..... red can only be done in a case where where there is an Import Trade Control licence.. The Import Trade Policy contemplates Import pursuant both to a licence issued by the relevant authority as also under REP licence which is also issued by the same authority. If this aspect is understood which the respondent themselves have understood then some meaning will have to be assigned to the expression wherever required in Regulation 5(4). If in this context, the said Regulation is read, it would mean that in those cases whether goods can be imported under REP licence, then there is no requirement of an importer requiring an Import Trade Control licence. If it is so read, then the expression wherever required has a meaning otherwise it would be rendered superfluous or otiose. The language whether any primary or secondary legislation normally should not be treated as superfluous. The intent of the legislature must be given its due meaning. The object is import under the policy. The contract has to be registered. The licence is a requirement. Both REP licence and Import licences are licences issued by the same authority. The only distinction is in the import licence. The various items would .....

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