Full Judgment Text
(-1-)
2008:BHC-OS:1112-DB
MGN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2333 OF 2007
M/s.Century Textiles & )
Industries Ltd., a Company )
incorporated under the Companies)
Act, 1956 through its Division )
Century Rayon having its )
Registered Office at Century )
Bhavan, Dr. A.B. Road, )
Mumbai-400 030 and head office )
at Industry House, 159, )
Churchgate Reclamation, )
Mumbai-400 020 and factory at )
Shahad, Dist. Thane. )..PETITIONERS
Vs.
1.Union of India through )
Joint Secretary, Ministry of )
Law and Justice, having its )
office at Aayakar Bhavan, )
M.K. Road, Churchgate, )
Mumbai-400 020. )
2.The Joint Director General )
of Foreign Trade, New CGO )
Building, New Marine Lines, )
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(-2-)
Mumbai-400 020. )
3.The Deputy Director General )
of Foreign Trade, New CGO )
Building, New Marine Lines, )
Mumbai-400 020. )
4.The Commissioner of Customs )
(Exports), having his office )
at New Customs House, Ballard )
Estate, Mumbai-400 038 )
5.The Deputy Commissioner of )
Customs, Group VII, DEEC )
Section, having his office at )
New Customs House, Ballard )
Estate, Mumbai-400 038. )..RESPONDENTS
Mr. Vikram Nankani with Mr. Ms. Aarti Sathe and Mr.
Madhur R. Baya, for the petitioners.
Mr. A.J. Rane, Senior Counsel with Mr. P.S. Jetly,
Mr. D.A. Dubey and Mr. H.P. Chaturvedi, for the
Respondents.
CORAM: F.I. CORAM: F.I. REBELLO CORAM: F.I. REBELLO & REBELLO
R.S.MOHITE,JJ. R.S.MOHITE,JJ. R.S.MOHITE,JJ.
DATED: 17TH JANUARY,2008 DATED: 17TH JANUARY,2008 DATED: 17TH JANUARY,2008
ORAL JUDGMENT (PER F.I. REBELLO, J.): ORAL JUDGMENT (PER F.I. REBELLO, J.): ORAL JUDGMENT (PER F.I. REBELLO, J.):
. Rule. Heard forthwith.
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(-3-)
2. The petitioner company is in the business of
manufacture and export of Rayon Viscose Filament
Yarn, hereinafter referred to as the Yarn having its
factory at Shahad, District Thane. Chapter 4 of the
Export-Import Policy for the period April 1992 to
March, 1997, hereinafter referred to as the said
Policy, contained the Duty Exemption and Remission
inter alia provided for issue of advance licenses
for duty free import of the raw materials/inputs
against export obligation. The petitioners were
issued several advance licences. Against the
advance licences granted to the petitioners exports
were effected from time to time and export
obligations were duly discharged by the petitioners.
3. The present petition relates to two advance
licences bearing No.03020800 dated 12th December,
1995 and 03201698 dated 28th March, 1996 which
hereinafter shall be referred to as the licences.
According to the petitioners at the time of exports
the petitioners correctly declared the goods in each
shipping bill and wherever the said yarn was
sub-standard, the same was so declared by the
petitioners. The petitioners yarn was examined by
the Customs Officer and after completion of the
assessment under Section 17 of the Customs Act the
yarn was allowed to be exported by the proper
officer under Section 51 of the Customs Act. After
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(-4-)
completion of the exports as is required in law, the
petitioners submitted all the export documents for
audit and/or logging of the DEEC Books Part-I and II
by the Respondent No.5. As there was a delay in
audit/logging of the licenses on 4th June, 2002 the
petitioners filed Writ Petition No.1156 of 2002 in
this Court which came to be disposed of by an order
directing the respondents to complete the auditing
and logging of DEECs and until then directed the
Respondents not to invoke the bank guarantees which
were furnished by the petitioners before the import
of goods under one of the said licenses. Pursuant
to the order of this Court the auditing and logging
of the said license were completed by the Customs
Authorities. In the course of auditing/logging the
Customs Authorities accepted all the exports made by
the petitioners, but demanded duty on the alleged
excess quantity imported by the petitioners. This
demand of customs duty along with the interest in
respect of the said license was also paid by the
petitioners.
4. It is the case of the petitioners that the
yarn undergoes various processes in the course of
manufacture thereof and there are different
specifications for the said yarn. These
specifications are known, accepted and well
recognised in the international market. There are
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(-5-)
different grades of quality, and each quality has a
different price. These different grades in turn are
based on different specifications and each such
specification has different end-uses. Nonetheless
all the varieties of the said yarn are commercially
known, sold and marketed as Rayon Viscose Filament
Yarn. In order to distinguish one quality from the
other, different nomenclatures are used. At times
some of the qualities are referred to as
sub-standard, which is only to distinguish the
quality of one type of yarn from the other. The
sub-standard yarn is also Rayon Viscose Filament
Yarn and technically the parameters/cerficications
thereof are the same as that of any other yarn
except that end uses differ.
5. It is the case of the petitioners that
between 9th November, 2001 and 7th August, 2002 in
respect of the aforesaid two advance licenses, the
Respondent No.2 alleged non-ccompletion of export
obligation and asked the petitioners to show cause
as to why the LUT/Bank Guarantee given by them
should not be enforced/forfeited. By a defaulter
memo dated 8th August, 2002 in respect of the
advance licence No.03201698 the petitioners were
declared as defaulters for having not completed the
export obligation cast upon them under the said
license. The petitioners were served with demand
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(-6-)
notice to which they replied as also to the
defaulter notice and explained that in respect of
each of the licences they had completed export
obligation cast upon them. However, in view of the
pending audit/logging of the respective DEEC Books
connected with the aforesaid two advance licences by
Respondent No.5 they were not in a position to
submit the required documents to substantiate their
claim. Inspite of the explanation by show cause
notice dated 18th June, 2003 in respect of advance
license No.03201698 and notice dated 31st May, 2004
in respect of advance license No.03200800 the
respondent No.2 alleged non-completion of export
obligation and accordingly called on the petitioners
to show cause as to why the fiscal penalty should
not be imposed upon them along with their Directors
in terms of Section 11 of the said Act.
6. Between 7th March, 2005 and 26th April, 2005
in view of the completion of audit and/or logging by
the Customs Authorities the petitioners submitted
all the relevant documents to the Licensing
Authority for issuance of Redemption Certificate.
Certain discrepancies were pointed out and the same
documents were returned to the petitioners. On 30th
June, 2005 after receiving the documents duly
completed by the Customs Authorities and after
complying with the other deficiencies pointed out by
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(-7-)
the Licensing Authority the Petitioners once again
submitted the relevant export documents to the
Licensing Authority. When the matter was pending
with the Licensing Authority on 20th June, 2005, the
5th Respondent sought to invoke the bank guarantee
notwithstanding the order dated 4th June, 2002 of
this Court. The petitioners, therefore, took out
Notice of Motion No.316 of 2005 in Writ Petition
No.1156 of 2002, wherein by an order of this Court
this Court was pleased to restrain the Customs
Authorities from invoking and/or encashing the bank
guarantees. By communication dated 25th July, 2005
and 3rd August, 2005 the petitioners were informed
by the Licensing Authority for the first time that
as the petitioners had exported sub-standard quality
of goods, therefore, the customs duty was required
to be paid on proportionate imported raw materials.
The Licensing Authority, however, issued the closure
letters in respect of the said license. The
petitioners made detailed representation explaining
that the word "sub-standard" merely represents the
different uses to which the said yard of different
specifications is put to and that it is only a
commercial nomenclature given to the said yarn, but
the fact of the matter remains that the said yarn
exported by the petitioners is the same as required
under the said licenses read with the DEEC Books
whereby the said yarn exported answers the
::: Downloaded on - 26/06/2024 07:32:40 :::
(-8-)
description and is the same as Rayon Viscose
Filament Yarn. After hearing the Foreign Trade
Development Officer by two separate letters informed
the petitioners to deduct the shipping bills for
sub-standard goods and requested the petitioners to
pay duty on the quantity of 196.04 metric tonnes in
case of the said license dated 12th December, 1995
and on 163.90 metric tonnes in case of the said
license dated 28th March, 1996 and returned all
original documents to the petitioners. The
petitioners requested for considering the
representation made by letter of 2nd December, 2005.
Inspite of that on 10th April, 2006 by two identical
letters the petitioners were called upon to pay duty
as earlier demanded. Inspite of further
correspondence and as no relief was granted the
present petition.
7. A reply has been filed by Vijay N.Shewale,
Joint Director General of Foreign Trade. It is
their contention that the petitioners had exported
sub-standard goods and as such they were liable to
pay customs duty on proportionate import of raw
materials. It is pointed out that the petitioners
claim for grant of DEPB norms are understood to be
applicable only for prime/fresh/superior quality
goods. The petitioner submitted their explanation
dated 9th November, 2004 to the Joint Director
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(-9-)
General of Foreign Trade, Mumbai. The case was
considered in Advance Licensing Committee meeting
dated 24th February, 2005 and the Advance Licensing
Committee decided to recommend the case to Policy
Interpretation/Relaxation Committee for providing
suitable interpretation. The Policy Relaxation
Committee (PRC) comprised of Technical Authorities
of different Departments and experts in Policy
matters. The PRC in its meeting dated 22nd March,
2005 considered the case and rejected the
petitioners request stating that the item in
question did not quality for DEPB Credit as standard
input output norms applied to quality products and
the DEPB rates are arrived at on the basis of the
standard input output norms for good quality. It is
not necessary to refer to the other averments as the
petitioners claim has been rejected in view of the
decision taken by PRC.
8. At the hearing of this petition the
submission of the petitioners is that once there is
an export policy which is notified, it is not open
to any person including P RC to issue and/or take
any decision contrary to the said policy. The said
policy can only be amended by the Government. In
the instant case the Policy which is statutory in
character was binding on the respondents and they
could not have taken the decision contrary to the
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(-10-)
said policy. On that count alone the decision
communicated is liable to be quashed and set aside.
. In the alternative it is submitted that even
assuming without admitting that it was open to PRC
to take a decision that decision could not be
retrospective and at the highest it could be
prospective considering that the petitioners have
already completed their export obligation under the
policy then in force.
9. Section 5 of the Foreign Trade (Development
and Regulation) Act, 1992 reads as under:-
"5. Export and import policy.-- Export and import policy.-- The Central Export and import policy.--
Government may, from time to time formulate
and announce, by notification in the
Official Gazette, the export and import
policy and may also, in the like manner,
amend that policy."
. It is, therefore, clear that the power to
formulate and announce export import policy is
conferred on the Central Government and that power
can be exercised by issuance of a Notification in
the Official Gazette. This power was exercised in
respect of the product Rayon Viscose Filament Yarn.
The Notification does not specify any specification
::: Downloaded on - 26/06/2024 07:32:40 :::
(-11-)
of the filament yarn whether it be standard or
sub-standard. The petitioners further have
explained that the expression sub-standard used by
them is in a commercial sense, and it is not that
the goods are sub-standard, but these are of
different grades of quality and each quality has a
different price and it has different end-uses. It
does not cease to loose its character as Rayon
Viscose Filament Yarn. It was open to the Central
Government considering the power conferred on it
under Section 5 if it choose to amend that policy.
That was not done. The petitioner was sought to be
denied the benefit based on the recommendations of
what is described as PRC. Under Section 5 of the
Foreign Trade Act no power has been conferred on the
said committee to amend the export and import policy
as notified by the Central Government. Once that be
the position and the petitioners had already
completed their export obligations the decision of
the PRC to reject the explanation and make a demand
for the purported unfulfilled export obligation is
totally without jurisdiction and consequently the
order on this count is liable to be set aside.
. On behalf of the Respondents Shri A.J.
Rana, Senior Counsel with his usual fairness has
placed before us a judgment of a co-ordinate Bench
of this Court in the case of Narendra Udeshi vs.
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(-12-)
Union of India in Writ Petition No.808 of 2002
decided on 1st October, 2002 wherein in respect of a
similar issue the learned Bench held that the power
to amend the policy being within the exclusive
domain of the Central Government the said powers in
that case could not have been usurped by D.G.F.T.
in the guise of laying down regulatory measures.
The judgment of this Court was taken in applied to
the Supreme Court which dismissed the Special Leave
Petition by its order dated 7th May, 203.
. The Petition, therefore, is liable to be
allowed on this point alone.
10. Even otherwise the decision of PRC is not an
exercise in subordinate legislation or for that
matter a decision of a quasi judicial authority.
The decision taken is purely administrative in
character. Once there be a policy in force and even
if there had been power in the PRC to take a
decision that decision at the highest being
administrative could not have related back for the
period When the export import policy was in force
and parties had acted on the same. We are,
therefore, clearly of the opinion that even if there
was power in the PRC, which in the earlier part of
this order we have held that it did not possess, the
decision at the highest if it could have been made,
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(-13-)
could only olperate from the date of the decision
and not an earlier period. On this count also the
petition is liable to be allowed.
11. For all the aforesaid reasons the petition
is made absolute in terms of prayer (a), (b) (i) and
consequently prayer (b)(iv). In the circumstances
of the case there shall be no order as to costs.
(R.S.MOHITE, J.) (R.S.MOHITE, J.) (F.I.REBELLO, J.) (R.S.MOHITE, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)
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2008:BHC-OS:1112-DB
MGN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2333 OF 2007
M/s.Century Textiles & )
Industries Ltd., a Company )
incorporated under the Companies)
Act, 1956 through its Division )
Century Rayon having its )
Registered Office at Century )
Bhavan, Dr. A.B. Road, )
Mumbai-400 030 and head office )
at Industry House, 159, )
Churchgate Reclamation, )
Mumbai-400 020 and factory at )
Shahad, Dist. Thane. )..PETITIONERS
Vs.
1.Union of India through )
Joint Secretary, Ministry of )
Law and Justice, having its )
office at Aayakar Bhavan, )
M.K. Road, Churchgate, )
Mumbai-400 020. )
2.The Joint Director General )
of Foreign Trade, New CGO )
Building, New Marine Lines, )
::: Downloaded on - 26/06/2024 07:32:40 :::
(-2-)
Mumbai-400 020. )
3.The Deputy Director General )
of Foreign Trade, New CGO )
Building, New Marine Lines, )
Mumbai-400 020. )
4.The Commissioner of Customs )
(Exports), having his office )
at New Customs House, Ballard )
Estate, Mumbai-400 038 )
5.The Deputy Commissioner of )
Customs, Group VII, DEEC )
Section, having his office at )
New Customs House, Ballard )
Estate, Mumbai-400 038. )..RESPONDENTS
Mr. Vikram Nankani with Mr. Ms. Aarti Sathe and Mr.
Madhur R. Baya, for the petitioners.
Mr. A.J. Rane, Senior Counsel with Mr. P.S. Jetly,
Mr. D.A. Dubey and Mr. H.P. Chaturvedi, for the
Respondents.
CORAM: F.I. CORAM: F.I. REBELLO CORAM: F.I. REBELLO & REBELLO
R.S.MOHITE,JJ. R.S.MOHITE,JJ. R.S.MOHITE,JJ.
DATED: 17TH JANUARY,2008 DATED: 17TH JANUARY,2008 DATED: 17TH JANUARY,2008
ORAL JUDGMENT (PER F.I. REBELLO, J.): ORAL JUDGMENT (PER F.I. REBELLO, J.): ORAL JUDGMENT (PER F.I. REBELLO, J.):
. Rule. Heard forthwith.
::: Downloaded on - 26/06/2024 07:32:40 :::
(-3-)
2. The petitioner company is in the business of
manufacture and export of Rayon Viscose Filament
Yarn, hereinafter referred to as the Yarn having its
factory at Shahad, District Thane. Chapter 4 of the
Export-Import Policy for the period April 1992 to
March, 1997, hereinafter referred to as the said
Policy, contained the Duty Exemption and Remission
inter alia provided for issue of advance licenses
for duty free import of the raw materials/inputs
against export obligation. The petitioners were
issued several advance licences. Against the
advance licences granted to the petitioners exports
were effected from time to time and export
obligations were duly discharged by the petitioners.
3. The present petition relates to two advance
licences bearing No.03020800 dated 12th December,
1995 and 03201698 dated 28th March, 1996 which
hereinafter shall be referred to as the licences.
According to the petitioners at the time of exports
the petitioners correctly declared the goods in each
shipping bill and wherever the said yarn was
sub-standard, the same was so declared by the
petitioners. The petitioners yarn was examined by
the Customs Officer and after completion of the
assessment under Section 17 of the Customs Act the
yarn was allowed to be exported by the proper
officer under Section 51 of the Customs Act. After
::: Downloaded on - 26/06/2024 07:32:40 :::
(-4-)
completion of the exports as is required in law, the
petitioners submitted all the export documents for
audit and/or logging of the DEEC Books Part-I and II
by the Respondent No.5. As there was a delay in
audit/logging of the licenses on 4th June, 2002 the
petitioners filed Writ Petition No.1156 of 2002 in
this Court which came to be disposed of by an order
directing the respondents to complete the auditing
and logging of DEECs and until then directed the
Respondents not to invoke the bank guarantees which
were furnished by the petitioners before the import
of goods under one of the said licenses. Pursuant
to the order of this Court the auditing and logging
of the said license were completed by the Customs
Authorities. In the course of auditing/logging the
Customs Authorities accepted all the exports made by
the petitioners, but demanded duty on the alleged
excess quantity imported by the petitioners. This
demand of customs duty along with the interest in
respect of the said license was also paid by the
petitioners.
4. It is the case of the petitioners that the
yarn undergoes various processes in the course of
manufacture thereof and there are different
specifications for the said yarn. These
specifications are known, accepted and well
recognised in the international market. There are
::: Downloaded on - 26/06/2024 07:32:40 :::
(-5-)
different grades of quality, and each quality has a
different price. These different grades in turn are
based on different specifications and each such
specification has different end-uses. Nonetheless
all the varieties of the said yarn are commercially
known, sold and marketed as Rayon Viscose Filament
Yarn. In order to distinguish one quality from the
other, different nomenclatures are used. At times
some of the qualities are referred to as
sub-standard, which is only to distinguish the
quality of one type of yarn from the other. The
sub-standard yarn is also Rayon Viscose Filament
Yarn and technically the parameters/cerficications
thereof are the same as that of any other yarn
except that end uses differ.
5. It is the case of the petitioners that
between 9th November, 2001 and 7th August, 2002 in
respect of the aforesaid two advance licenses, the
Respondent No.2 alleged non-ccompletion of export
obligation and asked the petitioners to show cause
as to why the LUT/Bank Guarantee given by them
should not be enforced/forfeited. By a defaulter
memo dated 8th August, 2002 in respect of the
advance licence No.03201698 the petitioners were
declared as defaulters for having not completed the
export obligation cast upon them under the said
license. The petitioners were served with demand
::: Downloaded on - 26/06/2024 07:32:40 :::
(-6-)
notice to which they replied as also to the
defaulter notice and explained that in respect of
each of the licences they had completed export
obligation cast upon them. However, in view of the
pending audit/logging of the respective DEEC Books
connected with the aforesaid two advance licences by
Respondent No.5 they were not in a position to
submit the required documents to substantiate their
claim. Inspite of the explanation by show cause
notice dated 18th June, 2003 in respect of advance
license No.03201698 and notice dated 31st May, 2004
in respect of advance license No.03200800 the
respondent No.2 alleged non-completion of export
obligation and accordingly called on the petitioners
to show cause as to why the fiscal penalty should
not be imposed upon them along with their Directors
in terms of Section 11 of the said Act.
6. Between 7th March, 2005 and 26th April, 2005
in view of the completion of audit and/or logging by
the Customs Authorities the petitioners submitted
all the relevant documents to the Licensing
Authority for issuance of Redemption Certificate.
Certain discrepancies were pointed out and the same
documents were returned to the petitioners. On 30th
June, 2005 after receiving the documents duly
completed by the Customs Authorities and after
complying with the other deficiencies pointed out by
::: Downloaded on - 26/06/2024 07:32:40 :::
(-7-)
the Licensing Authority the Petitioners once again
submitted the relevant export documents to the
Licensing Authority. When the matter was pending
with the Licensing Authority on 20th June, 2005, the
5th Respondent sought to invoke the bank guarantee
notwithstanding the order dated 4th June, 2002 of
this Court. The petitioners, therefore, took out
Notice of Motion No.316 of 2005 in Writ Petition
No.1156 of 2002, wherein by an order of this Court
this Court was pleased to restrain the Customs
Authorities from invoking and/or encashing the bank
guarantees. By communication dated 25th July, 2005
and 3rd August, 2005 the petitioners were informed
by the Licensing Authority for the first time that
as the petitioners had exported sub-standard quality
of goods, therefore, the customs duty was required
to be paid on proportionate imported raw materials.
The Licensing Authority, however, issued the closure
letters in respect of the said license. The
petitioners made detailed representation explaining
that the word "sub-standard" merely represents the
different uses to which the said yard of different
specifications is put to and that it is only a
commercial nomenclature given to the said yarn, but
the fact of the matter remains that the said yarn
exported by the petitioners is the same as required
under the said licenses read with the DEEC Books
whereby the said yarn exported answers the
::: Downloaded on - 26/06/2024 07:32:40 :::
(-8-)
description and is the same as Rayon Viscose
Filament Yarn. After hearing the Foreign Trade
Development Officer by two separate letters informed
the petitioners to deduct the shipping bills for
sub-standard goods and requested the petitioners to
pay duty on the quantity of 196.04 metric tonnes in
case of the said license dated 12th December, 1995
and on 163.90 metric tonnes in case of the said
license dated 28th March, 1996 and returned all
original documents to the petitioners. The
petitioners requested for considering the
representation made by letter of 2nd December, 2005.
Inspite of that on 10th April, 2006 by two identical
letters the petitioners were called upon to pay duty
as earlier demanded. Inspite of further
correspondence and as no relief was granted the
present petition.
7. A reply has been filed by Vijay N.Shewale,
Joint Director General of Foreign Trade. It is
their contention that the petitioners had exported
sub-standard goods and as such they were liable to
pay customs duty on proportionate import of raw
materials. It is pointed out that the petitioners
claim for grant of DEPB norms are understood to be
applicable only for prime/fresh/superior quality
goods. The petitioner submitted their explanation
dated 9th November, 2004 to the Joint Director
::: Downloaded on - 26/06/2024 07:32:40 :::
(-9-)
General of Foreign Trade, Mumbai. The case was
considered in Advance Licensing Committee meeting
dated 24th February, 2005 and the Advance Licensing
Committee decided to recommend the case to Policy
Interpretation/Relaxation Committee for providing
suitable interpretation. The Policy Relaxation
Committee (PRC) comprised of Technical Authorities
of different Departments and experts in Policy
matters. The PRC in its meeting dated 22nd March,
2005 considered the case and rejected the
petitioners request stating that the item in
question did not quality for DEPB Credit as standard
input output norms applied to quality products and
the DEPB rates are arrived at on the basis of the
standard input output norms for good quality. It is
not necessary to refer to the other averments as the
petitioners claim has been rejected in view of the
decision taken by PRC.
8. At the hearing of this petition the
submission of the petitioners is that once there is
an export policy which is notified, it is not open
to any person including P RC to issue and/or take
any decision contrary to the said policy. The said
policy can only be amended by the Government. In
the instant case the Policy which is statutory in
character was binding on the respondents and they
could not have taken the decision contrary to the
::: Downloaded on - 26/06/2024 07:32:40 :::
(-10-)
said policy. On that count alone the decision
communicated is liable to be quashed and set aside.
. In the alternative it is submitted that even
assuming without admitting that it was open to PRC
to take a decision that decision could not be
retrospective and at the highest it could be
prospective considering that the petitioners have
already completed their export obligation under the
policy then in force.
9. Section 5 of the Foreign Trade (Development
and Regulation) Act, 1992 reads as under:-
"5. Export and import policy.-- Export and import policy.-- The Central Export and import policy.--
Government may, from time to time formulate
and announce, by notification in the
Official Gazette, the export and import
policy and may also, in the like manner,
amend that policy."
. It is, therefore, clear that the power to
formulate and announce export import policy is
conferred on the Central Government and that power
can be exercised by issuance of a Notification in
the Official Gazette. This power was exercised in
respect of the product Rayon Viscose Filament Yarn.
The Notification does not specify any specification
::: Downloaded on - 26/06/2024 07:32:40 :::
(-11-)
of the filament yarn whether it be standard or
sub-standard. The petitioners further have
explained that the expression sub-standard used by
them is in a commercial sense, and it is not that
the goods are sub-standard, but these are of
different grades of quality and each quality has a
different price and it has different end-uses. It
does not cease to loose its character as Rayon
Viscose Filament Yarn. It was open to the Central
Government considering the power conferred on it
under Section 5 if it choose to amend that policy.
That was not done. The petitioner was sought to be
denied the benefit based on the recommendations of
what is described as PRC. Under Section 5 of the
Foreign Trade Act no power has been conferred on the
said committee to amend the export and import policy
as notified by the Central Government. Once that be
the position and the petitioners had already
completed their export obligations the decision of
the PRC to reject the explanation and make a demand
for the purported unfulfilled export obligation is
totally without jurisdiction and consequently the
order on this count is liable to be set aside.
. On behalf of the Respondents Shri A.J.
Rana, Senior Counsel with his usual fairness has
placed before us a judgment of a co-ordinate Bench
of this Court in the case of Narendra Udeshi vs.
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Union of India in Writ Petition No.808 of 2002
decided on 1st October, 2002 wherein in respect of a
similar issue the learned Bench held that the power
to amend the policy being within the exclusive
domain of the Central Government the said powers in
that case could not have been usurped by D.G.F.T.
in the guise of laying down regulatory measures.
The judgment of this Court was taken in applied to
the Supreme Court which dismissed the Special Leave
Petition by its order dated 7th May, 203.
. The Petition, therefore, is liable to be
allowed on this point alone.
10. Even otherwise the decision of PRC is not an
exercise in subordinate legislation or for that
matter a decision of a quasi judicial authority.
The decision taken is purely administrative in
character. Once there be a policy in force and even
if there had been power in the PRC to take a
decision that decision at the highest being
administrative could not have related back for the
period When the export import policy was in force
and parties had acted on the same. We are,
therefore, clearly of the opinion that even if there
was power in the PRC, which in the earlier part of
this order we have held that it did not possess, the
decision at the highest if it could have been made,
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could only olperate from the date of the decision
and not an earlier period. On this count also the
petition is liable to be allowed.
11. For all the aforesaid reasons the petition
is made absolute in terms of prayer (a), (b) (i) and
consequently prayer (b)(iv). In the circumstances
of the case there shall be no order as to costs.
(R.S.MOHITE, J.) (R.S.MOHITE, J.) (F.I.REBELLO, J.) (R.S.MOHITE, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)
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