TMI Blog1986 (7) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... trengthen their negotiating capacity in foreign trade and to build up a more enduring relationship between them and their supporting manufacturers. This aspect of the recognition of certain exporters as Export Houses has been pointed out by the Supreme Court in Raj Prakash Chemicals Ltd. v. Union of India, AIR 1986 Supreme Court 1021. Under the Import Policy of 1978-79, Export Houses were entitled to import replenishment licences eligible to them as Registered Exporters, import replenishment licences transferred to them by others, import Items placed on Open General Licence and additional licences. In the present case we are concerned with the additional licences which the petitioners were entitled to get. 2. However, the respondents, who are the Union of India and the Collector and Deputy Collector of Customs having their offices in Bombay refused to grant such certificate to the petitioners and some other similar diamond exporters on the ground that the petitioners have not diversified their exports. The cases relating to the other diamond exporters were the subject-matter of several orders both by this Court and the Delhi High Court and ultimatley in certain appeals preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on the import licences. The order, dated 12th of February 1985 was in fact a step in the direction of the implementation of the order, dated 23rd November 1983 which the respondents did not obey. If the Court directs that a party is entitled to a particular licence or a certificate for that matter in the light of law, I do not sea the relevance of the authorities making an endorsement on the licence that the said licence is issued pursuant to the order of the Court. Courts pass orders because the authorities refuse to act in accordance with law. It must therefore be presumed that whenever such a licence is given pursuant to a direction of a Court, which direction is given because the authorities are not acting in accordance with law, the said licence is given as per the requirements of law. The Court's order is only an intervening factor which becomes necessary because of the refusal of the authorities to act in accordance with law. The practice of making such endorsements on the licences must therefore be deprecated. 6. The licence further stated that it was valid for import of Items under additional licence category as per Paragraph 176 of the Import Policy of 1978-79 exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en obtained a letter of authority from the petitioners to the extent of Rs. 10 lakhs. Pursuant to this letter of authority they imported certain goods, namely Palm Kernel Oil. A notice, dated 11th of December, 1985 was issued by the Assistant Collector of Customs, Group 'A', to Bharat Oxygen wherein it was stated that Bharat Oxygen had imported 75 sound second-hand drums of Crude Palm Kernal Oil of the C.I.F. value of Rs. 72,910.82. According to the said notice, the facility of issuing letter of authority granted to the holder of additional licence had been discontinued after 1st of April 1982 and in particular under the Import Policy of 1985-88. Therefore the import made by Bharat Oxygen pursuant to the letter of authority given by the petitioners was illegal. By the said notice Bharat Oxygen was called upon to show cause as to why action should not be taken against them under Section 112 of the Customs Act, 1962 and why the goods imported should not be confiscated under Section 111(d) of the said Act. 9. Bharat Oxygen submitted a reply to this show cause notice pointing out, among other things, that the facility of issuing letter of authority enjoyed by the Export Houses under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the additional licence obtainable by them by virtue of holding an Export House Certificate under the Import Policy of 1978-79 has been decided in the affirmative by several orders passed by this Court and subsequently confirmed by the Supreme Court. The only restriction is that under such an additional licence obtained by the Export House, the Export House would not be entitled to import any commodity the import of which is banned in the year of import. That therefore the petitioners are entitled to import goods to the extent of the value of the additional licence given to them cannot be said to be in dispute. 13. But it has been contended on behalf of the respondents that the imports which the petitioners are entitled to make under the authority of the additional licence granted to them as an Export House can be made only by the petitioners themselves and not by any other persons to whom letters of authority are given by them. It is the case of the respondents that the facility of importing through persons to whom letters of authority are given, which was available as per Paragraph 7 of the Hand Book of Import-Export Procedures of 1978-79, has been abolished by the Import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e light of the manner in which it could be imported as provided by the Import Policy of the same year. One cannot see how a person who acted upon a policy announced by the Government in a particular year and became entitled to a certificate as an Export House and consequently to the issuance of an additional licence could be denied the facility of using such a licence in the manner provided in the Import Policy of that year. The right to import, as far as I can see, necessarily went hand in hand with the manner of importing the goods under the import licence as mentioned in the Import Policy of the relevant year. If, admittedly, therefore, in the Import Policy of 1978-79 a licence-holder could issue a letter of authority in respect of the import licence held by him by way of right, there is no reason as to why the said facility, which accompanied the right to import, should be denied to him subsequently. In my opinion, therefore, the holders of additional import licences under the Import Policy of 1978-79 are entitled to import the goods in the manner in which such import was permissible under the Hand Book of Import-Export Procedures of the same year. That facility necessarily for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er words, if the import licence pertains to a particular year and in the year of the actual import a particular commodity is banned, then that commodity cannot be imported under that licence. The language of the observations on which Mr. Rege has relied clearly point out that the Supreme Court was necessarily dealing with the question as to which goods should be imported and not the manner in which they could be imported. 17. If anything, certain other observations contained in Paragraph 11 of the same judgment seem to go counter to the submissions of Mr. Rege. In the said Paragraph it is stated as follows :- "There is no dispute that the diamond exporters enjoying the benefit of the order are entitled to the issue of Export House Certificates under Import Policy 1978-79 and to the facilities flowing from such grant." The facilities which flew from such grant, in my opinion, included entitlement to an additional import licence and the facility of importing goods under such additional licence in the manner provided for the relevant year. I am not unaware of the fact that the Supreme Court has mentioned that there was no dispute on that point. However, on an examination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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