Full Judgment Text
1
2006:BHC-OS:3664-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2222 OF 1999
1. Neon Laboratories Limited,
a Public Limited Company
incorporated and registered
under the provisions of the
Companies Act, I of 1956 and
having its office at 140,
Damji Shamji Ind. Complex,
Mahakali Caves Road, Andheri
(East), Mumbai - 400 093
2. Babulal K. Jain, of Mumbai
Indian Inhabitant, a
Director of the Petitioner
No.1 abovenamed, having his
office at 140, Damji Shamji
Industrial Complex, Mahakali
Caves Road, Andheri (East),
Mumbai - 400 093 .. Petitioners.
V/s.
1. Union of India,
Ministry of Law, Justice
Aayakar Bhavan Annex, New
Marine Lines, Mumbai 400 020
2. Joint Director General of
Foreign Trade, having his
office at New CGO Building,
New Marine Lines, Mumbai 20
3. The Designated Authority of
Pass Book Scheme having his
office at New Customs House
3rd Floor, Old Building,
Mumbai - 400 038 .. Respondents.
Mr.N.M. Shah with Mr.Naresh Thacker for the
petitioners.
Mr.S.M. Shah with Mr.Y.R. Mishra for the
respondents.
CORAM : R.M. LODHA &
CORAM : R.M. LODHA & CORAM : R.M. LODHA &
J.P. DEVADHAR, JJ. J.P. DEVADHAR, JJ. J.P. DEVADHAR, JJ.
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DATED : 23RD MARCH, 2006. DATED : 23RD MARCH, 2006. DATED : 23RD MARCH, 2006.
ORAL JUDGMENT (Per R.M. Lodha, J.) :
The petitioners seek to challenge the
impugned order dated 12th May, 1999 passed by the
Joint Director General of Foreign Trade, Mumbai
whereby the exports made by the first petitioner vide
six shipping bills from 27th February, 1996 to 5th
November, 1996 were held not covered by the
provisions of the Pass Book scheme.
2. Neon Laboratories Limited - the first
petitioner is a company registered and incorporated
under the provisions of the Companies Act, 1956. The
second petitioner is one of the directors of the
first petitioner - company. Hereinafter we shall
refer the petitioners as ‘Neon’. Neon claims to be
engaged in the manufacture of Hi-Tech Parentals and
Pharmaceutical formulations since 1984. It has its
own plant for manufacture of injectable and oral
preparations. It claims to be specialised in
Anaeshetic & Anti Cancer drugs. Neon applied for
Pass Book under the Pass Books Scheme, Export and
Import Policy, 1992-1997. On 23rd August, 1995, the
Pass Book is said to have been issued immediately
thereafter. Neon after the issuance of the said Pass
Book exported their products as under :
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3
-----------------------------------------------------
Shipping Bill No. Item FOB Value
& Date Rs.
-----------------------------------------------------
724928 - 02.02.96 Amplicillin Capsules 8,80,680.00
730272 - 11.03.96 Tetracycline Capsules 8,85,308.00
730255 - 11.03.96 Chloroquine Phosphate
Tabs. 12,51,950.00
804444 - 23.08.96 Paracetamol Tablets 4,66,622.00
804451 - 23.08.96 Paracetamol Tablets 4,76,145.00
837182 - 05.11.96 Ampicillin Capsules 8,42,973.00
--------------
48,03,658.00
==============
3. Neon applied to the Designated Authority
of Pass Book Scheme - respondent No.3 (hereinafter to
be referred to as ‘the Designated Authority’) on 14th
March, 1997 for necessary endorsement in the Pass
Book regarding credit of duty available on it in
respect of above referred exports. On 30th August,
1998 the office of Designated Authority made an
endorsement, ‘Loan Licence is not allowed’. Neon
took up the matter with the Designated Authority.
However, the Designated Authority on 30th August,
1998 again made an endorsement, ‘correctly rejected’.
Neon filed a writ petition before this Court bearing
Writ Petition No.969 of 1999. The Division Bench by
its order dated 12th April, 1999 set aside the
endorsement and directed the Designated Authority to
clear the Neon and passed a speaking order. Pursuant
to the orders of the Division Bench, the Designated
Authority heard Neon and by its order dated 12th May,
1999 rejected the Neon’s claim of credit in the Pass
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4
Book Scheme.
4. The Pass Book Scheme under the Export and
Import Policy, 1992-1997 issued by the Ministry of
Commerce, Government of India is thus :
"A Pass Book Scheme shall be available for
some categories of exporters. A
manufacturer-exporter or an exporter
granted an Export House / Trading House /
Star Trading House / Super Star Trading
House certificate, shall be eligible to
avail the benefits of the Pass Book
Scheme. He may apply to the designated
authority in the prescribed form for issue
of the Pass Book. The designated
authority may, after considering such
matters as may be specified, issue a Pass
Book to the applicant.
The Pass Book scheme shall apply only for
the export of products where standard
input / output norms have been published.
The Director General of Foreign Trade
shall appoint a designated authority,
being an officer of the rank not less than
a Deputy Director General in each of the
Customs House at Delhi, Bombay, Calcutta
and Madras and such other Customs Houses
as may be specified by him in this behalf.
The designated authority shall be the
competent authority in respect of matters
concerning the Pass Book scheme and shall
discharge his functions under the overall
direction and supervision of the Collector
of Customs.
Upon the export of goods by a Pass Book
holder, the designated authority shall
calculate, on the basis of the standard
input / output norms, the import content
of the said exports and determine the
basic customs duty payable on such
imports. He shall credit the said amount
in the Pass Book. Upon imports being made
by the Pass Book holder, the credits may
be utilised to pay the basic and
additional customs duties on the imported
goods. Payment shall be by a debit entry
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5
to be made in the Pass Book by the
designated authority. The export goods
shall not be eligible for drawback on the
inputs for which credit in the Pass Book
is taken. The import and export shall be
made through the same port. Any goods
which are not included in the Negative
List of Imports or in the list of
Sensitive Items may be imported under this
scheme. The Pass Book shall be valid for
a period of two years from the date of
issue and may be renewed from time to
time."
5. It is admitted case of Neon that it was
not able to meet the requisite export of
Pharmaceutical products. They made an application to
the concerned authority under the Drugs and Cosmetics
Act, 1940 and the Drugs and Cosmetics Rules, 1945 for
grant of Loan Licence. It is also an admitted case
of the Neon that under this Act, the Licensing
Authority granted Loan Licence to manufacture for
sale (or for distribution of) drugs other than those
specified in (Schedule C, C(1) and X) on 1st July,
1996. Under the said Loan Licence, Neon was granted
a licence to manufacture the drugs as set out in the
licence specified in Drugs and Cosmetics Rules, 1945
other than those specified in Schedule C, C(1) and X
at the premises of M/s.Lesanto Laboratories and
M/s.Milan Laboratories (India). It is Neon’s case
that the exported goods were manufactured by
M/s.Lesanto Laboratories in their premises situated
at Plot No.11, Survey No.53, Manor Road, Palghar
East, District Thane and exported under the Neon’s
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6
label. Neon’s case is that the Loan Licence having
been granted by the Licensing Authority under the
Drugs and Cosmetics Act, 1940 and Drugs and Cosmetics
Rules, 1945 to manufacture for sale of drugs other
than those specified in Schedule C, C(!) and X and,
therefore, the exported goods have to be treated as
manufactured by it and since the Neon is
exporter-manufacturer, it is entitled to endorsement
of credit in the Pass Book Scheme.
6. The only question before us is: is Neon a
‘manufacturer - exporter’ within the meaning of Pass
Book Scheme framed under the Export and Import
Policy, 1992-1997 issued by the Ministry of Commerce,
Government of India ?’
7. As the scheme itself suggests that the
Pass Book Scheme is available for some categories of
exporters. In so far as the present case is
concerned, if the Neon is not manufacturer of the
exported goods, obviously it will not be entitled to
the benefit under the Pass Book Scheme.
8. It transpires from the scheme that upon
the export of goods by the Pass Book holder,
calculation is to be made on the basis of the
standard input / output norms, the import content of
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7
the said exports and determine the basic customs duty
payable on such imports and then credit the said
amount in the Pass Book by the Designated Authority.
Upon imports being made by the Pass Book holder, the
credits may be utilised to pay the basic and
additional customs duties on the imported goods.
When the scheme talks of ‘manufacturer’ for the
benefit under the Pass Book Scheme, what is
contemplated is the actual manufacturer of goods and
not through the agency of somebody else. The
expression ‘manufacturer’ in the Pass Book Scheme
cannot be said to cover a person who is not actually
manufacturer of goods but gets the goods manufactured
through someone else for whatever reason. It is true
that the Drugs and Cosmetics Act, 1940 and the Rules
framed thereunder provides for Loan Licence to
manufacture permissible drugs but the licence
contemplates under the Drugs and Cosmetics Act and
the Rules framed thereunder shall not entitle the
licensee to the benefit of the Pass Book Scheme
because such manufacturer is not actual manufacturer
- exporter contemplated under the Pass Book Scheme.
The Loan Licence, thus, issued to the Neon by the
Licensing Authority under the Drugs and Cosmetics Act
and the Rules framed thereunder shall not make Neon,
‘manufacturer - exporter’ under the Pass Book Scheme.
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8
9. The expression ‘manufacturer - exporter’
under the Scheme does not include deemed manufacturer
or licensee manufacturer. For the benefit of the
Pass Book Scheme, the exporter has to be manufacturer
himself. Neon may be ‘manufacturer’ for the purposes
of Loan Licence under the Drugs and Cosmetics Act,
1940 and the Rules framed thereunder or under the
Central Excise Act and the Rules framed thereunder,
but in our considered opinion, Neon being not actual
manufacturer and only Loan Licensee - it cannot be
said to be ‘manufacturer - exporter’ for the purposes
of the Pass Book Scheme.
10. In the reply-affidavit filed by the
respondent No.2, stand has been taken that the
benefit of Pass Book is only available to the
manufacturer - exporter or to an exporter holding the
status of export house / trading house / star trading
house / super star trading house only and not
otherwise. There is merit in the stand set up by the
respondent No.2 that Neon is not the status- holder
but appears to be merchant exporter having got the
exported goods manufactured through other agency
namely M/s.Lesanto Laboratories under the Loan
Licence, though permitted as per the provisions of
the Drugs and Cosmetics Act, 1940 and Rules framed
thereunder.
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9
11. The learned counsel for the petitioner
relied upon the judgment of the Gujarat High Court in
the case of M/s.Indica Laboratories V/s. Union of
India reported in 1990 (50) E.L.T. 210 in support of
his contention that the goods manufactured on Loan
Licence under the control and supervision of Loan
Licensee is treated as ‘manufacture’ and Loan
Licensee is treated as ‘manufacturer’. The issue
before the Gujarat High Court was, as to whether the
Loan Licensee governed by the Drugs and Cosmetics
Act, 1940 read with Drugs and Cosmetics Rules, 1945
if gets the goods manufactured under his control,
supervision and direction and out of the raw material
supplied by him, is ‘manufacturer’ within the
meaning of Section 2(f) of the Central Excise Act.
Dealing with the said issue, the Gujarat High Court
held that in the light of the construction of Section
2(f) of the Central Excise Act having been given by
the Supreme Court, the Loan Licensees are also
‘manufacturer’ within the meaning of the term as
envisaged under the Central Excise Act and Rules.
The Gujarat High Court held that the Loan Licensees
were manufacturers in the context of Section 2(f) of
the Central Excise Act. We are afraid the analogy of
Section 2(f) of the Central Excise Act cannot be
applied for the purposes of expression ‘manufacturer’
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10
in the Pass Book Scheme. The term ‘manufacturer -
exporter’ in Pass Book Scheme has to be given natural
meaning contemplated under the scheme and that would
be the actual manufacturer of exported goods holding
the status of export house / trading house / star
trading house / super star trading house.
12. We, thus, find no infirmity in the order
dated 12th May, 1999 passed by the Joint Director
General of Foreign Trade, Mumbai.
13. The writ petition has no merit and is
dismissed with no order as to costs.
(R.M. LODHA, J.)
(J.P. DEVADHAR, J.)
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2006:BHC-OS:3664-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2222 OF 1999
1. Neon Laboratories Limited,
a Public Limited Company
incorporated and registered
under the provisions of the
Companies Act, I of 1956 and
having its office at 140,
Damji Shamji Ind. Complex,
Mahakali Caves Road, Andheri
(East), Mumbai - 400 093
2. Babulal K. Jain, of Mumbai
Indian Inhabitant, a
Director of the Petitioner
No.1 abovenamed, having his
office at 140, Damji Shamji
Industrial Complex, Mahakali
Caves Road, Andheri (East),
Mumbai - 400 093 .. Petitioners.
V/s.
1. Union of India,
Ministry of Law, Justice
Aayakar Bhavan Annex, New
Marine Lines, Mumbai 400 020
2. Joint Director General of
Foreign Trade, having his
office at New CGO Building,
New Marine Lines, Mumbai 20
3. The Designated Authority of
Pass Book Scheme having his
office at New Customs House
3rd Floor, Old Building,
Mumbai - 400 038 .. Respondents.
Mr.N.M. Shah with Mr.Naresh Thacker for the
petitioners.
Mr.S.M. Shah with Mr.Y.R. Mishra for the
respondents.
CORAM : R.M. LODHA &
CORAM : R.M. LODHA & CORAM : R.M. LODHA &
J.P. DEVADHAR, JJ. J.P. DEVADHAR, JJ. J.P. DEVADHAR, JJ.
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2
DATED : 23RD MARCH, 2006. DATED : 23RD MARCH, 2006. DATED : 23RD MARCH, 2006.
ORAL JUDGMENT (Per R.M. Lodha, J.) :
The petitioners seek to challenge the
impugned order dated 12th May, 1999 passed by the
Joint Director General of Foreign Trade, Mumbai
whereby the exports made by the first petitioner vide
six shipping bills from 27th February, 1996 to 5th
November, 1996 were held not covered by the
provisions of the Pass Book scheme.
2. Neon Laboratories Limited - the first
petitioner is a company registered and incorporated
under the provisions of the Companies Act, 1956. The
second petitioner is one of the directors of the
first petitioner - company. Hereinafter we shall
refer the petitioners as ‘Neon’. Neon claims to be
engaged in the manufacture of Hi-Tech Parentals and
Pharmaceutical formulations since 1984. It has its
own plant for manufacture of injectable and oral
preparations. It claims to be specialised in
Anaeshetic & Anti Cancer drugs. Neon applied for
Pass Book under the Pass Books Scheme, Export and
Import Policy, 1992-1997. On 23rd August, 1995, the
Pass Book is said to have been issued immediately
thereafter. Neon after the issuance of the said Pass
Book exported their products as under :
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3
-----------------------------------------------------
Shipping Bill No. Item FOB Value
& Date Rs.
-----------------------------------------------------
724928 - 02.02.96 Amplicillin Capsules 8,80,680.00
730272 - 11.03.96 Tetracycline Capsules 8,85,308.00
730255 - 11.03.96 Chloroquine Phosphate
Tabs. 12,51,950.00
804444 - 23.08.96 Paracetamol Tablets 4,66,622.00
804451 - 23.08.96 Paracetamol Tablets 4,76,145.00
837182 - 05.11.96 Ampicillin Capsules 8,42,973.00
--------------
48,03,658.00
==============
3. Neon applied to the Designated Authority
of Pass Book Scheme - respondent No.3 (hereinafter to
be referred to as ‘the Designated Authority’) on 14th
March, 1997 for necessary endorsement in the Pass
Book regarding credit of duty available on it in
respect of above referred exports. On 30th August,
1998 the office of Designated Authority made an
endorsement, ‘Loan Licence is not allowed’. Neon
took up the matter with the Designated Authority.
However, the Designated Authority on 30th August,
1998 again made an endorsement, ‘correctly rejected’.
Neon filed a writ petition before this Court bearing
Writ Petition No.969 of 1999. The Division Bench by
its order dated 12th April, 1999 set aside the
endorsement and directed the Designated Authority to
clear the Neon and passed a speaking order. Pursuant
to the orders of the Division Bench, the Designated
Authority heard Neon and by its order dated 12th May,
1999 rejected the Neon’s claim of credit in the Pass
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4
Book Scheme.
4. The Pass Book Scheme under the Export and
Import Policy, 1992-1997 issued by the Ministry of
Commerce, Government of India is thus :
"A Pass Book Scheme shall be available for
some categories of exporters. A
manufacturer-exporter or an exporter
granted an Export House / Trading House /
Star Trading House / Super Star Trading
House certificate, shall be eligible to
avail the benefits of the Pass Book
Scheme. He may apply to the designated
authority in the prescribed form for issue
of the Pass Book. The designated
authority may, after considering such
matters as may be specified, issue a Pass
Book to the applicant.
The Pass Book scheme shall apply only for
the export of products where standard
input / output norms have been published.
The Director General of Foreign Trade
shall appoint a designated authority,
being an officer of the rank not less than
a Deputy Director General in each of the
Customs House at Delhi, Bombay, Calcutta
and Madras and such other Customs Houses
as may be specified by him in this behalf.
The designated authority shall be the
competent authority in respect of matters
concerning the Pass Book scheme and shall
discharge his functions under the overall
direction and supervision of the Collector
of Customs.
Upon the export of goods by a Pass Book
holder, the designated authority shall
calculate, on the basis of the standard
input / output norms, the import content
of the said exports and determine the
basic customs duty payable on such
imports. He shall credit the said amount
in the Pass Book. Upon imports being made
by the Pass Book holder, the credits may
be utilised to pay the basic and
additional customs duties on the imported
goods. Payment shall be by a debit entry
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5
to be made in the Pass Book by the
designated authority. The export goods
shall not be eligible for drawback on the
inputs for which credit in the Pass Book
is taken. The import and export shall be
made through the same port. Any goods
which are not included in the Negative
List of Imports or in the list of
Sensitive Items may be imported under this
scheme. The Pass Book shall be valid for
a period of two years from the date of
issue and may be renewed from time to
time."
5. It is admitted case of Neon that it was
not able to meet the requisite export of
Pharmaceutical products. They made an application to
the concerned authority under the Drugs and Cosmetics
Act, 1940 and the Drugs and Cosmetics Rules, 1945 for
grant of Loan Licence. It is also an admitted case
of the Neon that under this Act, the Licensing
Authority granted Loan Licence to manufacture for
sale (or for distribution of) drugs other than those
specified in (Schedule C, C(1) and X) on 1st July,
1996. Under the said Loan Licence, Neon was granted
a licence to manufacture the drugs as set out in the
licence specified in Drugs and Cosmetics Rules, 1945
other than those specified in Schedule C, C(1) and X
at the premises of M/s.Lesanto Laboratories and
M/s.Milan Laboratories (India). It is Neon’s case
that the exported goods were manufactured by
M/s.Lesanto Laboratories in their premises situated
at Plot No.11, Survey No.53, Manor Road, Palghar
East, District Thane and exported under the Neon’s
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6
label. Neon’s case is that the Loan Licence having
been granted by the Licensing Authority under the
Drugs and Cosmetics Act, 1940 and Drugs and Cosmetics
Rules, 1945 to manufacture for sale of drugs other
than those specified in Schedule C, C(!) and X and,
therefore, the exported goods have to be treated as
manufactured by it and since the Neon is
exporter-manufacturer, it is entitled to endorsement
of credit in the Pass Book Scheme.
6. The only question before us is: is Neon a
‘manufacturer - exporter’ within the meaning of Pass
Book Scheme framed under the Export and Import
Policy, 1992-1997 issued by the Ministry of Commerce,
Government of India ?’
7. As the scheme itself suggests that the
Pass Book Scheme is available for some categories of
exporters. In so far as the present case is
concerned, if the Neon is not manufacturer of the
exported goods, obviously it will not be entitled to
the benefit under the Pass Book Scheme.
8. It transpires from the scheme that upon
the export of goods by the Pass Book holder,
calculation is to be made on the basis of the
standard input / output norms, the import content of
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7
the said exports and determine the basic customs duty
payable on such imports and then credit the said
amount in the Pass Book by the Designated Authority.
Upon imports being made by the Pass Book holder, the
credits may be utilised to pay the basic and
additional customs duties on the imported goods.
When the scheme talks of ‘manufacturer’ for the
benefit under the Pass Book Scheme, what is
contemplated is the actual manufacturer of goods and
not through the agency of somebody else. The
expression ‘manufacturer’ in the Pass Book Scheme
cannot be said to cover a person who is not actually
manufacturer of goods but gets the goods manufactured
through someone else for whatever reason. It is true
that the Drugs and Cosmetics Act, 1940 and the Rules
framed thereunder provides for Loan Licence to
manufacture permissible drugs but the licence
contemplates under the Drugs and Cosmetics Act and
the Rules framed thereunder shall not entitle the
licensee to the benefit of the Pass Book Scheme
because such manufacturer is not actual manufacturer
- exporter contemplated under the Pass Book Scheme.
The Loan Licence, thus, issued to the Neon by the
Licensing Authority under the Drugs and Cosmetics Act
and the Rules framed thereunder shall not make Neon,
‘manufacturer - exporter’ under the Pass Book Scheme.
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8
9. The expression ‘manufacturer - exporter’
under the Scheme does not include deemed manufacturer
or licensee manufacturer. For the benefit of the
Pass Book Scheme, the exporter has to be manufacturer
himself. Neon may be ‘manufacturer’ for the purposes
of Loan Licence under the Drugs and Cosmetics Act,
1940 and the Rules framed thereunder or under the
Central Excise Act and the Rules framed thereunder,
but in our considered opinion, Neon being not actual
manufacturer and only Loan Licensee - it cannot be
said to be ‘manufacturer - exporter’ for the purposes
of the Pass Book Scheme.
10. In the reply-affidavit filed by the
respondent No.2, stand has been taken that the
benefit of Pass Book is only available to the
manufacturer - exporter or to an exporter holding the
status of export house / trading house / star trading
house / super star trading house only and not
otherwise. There is merit in the stand set up by the
respondent No.2 that Neon is not the status- holder
but appears to be merchant exporter having got the
exported goods manufactured through other agency
namely M/s.Lesanto Laboratories under the Loan
Licence, though permitted as per the provisions of
the Drugs and Cosmetics Act, 1940 and Rules framed
thereunder.
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9
11. The learned counsel for the petitioner
relied upon the judgment of the Gujarat High Court in
the case of M/s.Indica Laboratories V/s. Union of
India reported in 1990 (50) E.L.T. 210 in support of
his contention that the goods manufactured on Loan
Licence under the control and supervision of Loan
Licensee is treated as ‘manufacture’ and Loan
Licensee is treated as ‘manufacturer’. The issue
before the Gujarat High Court was, as to whether the
Loan Licensee governed by the Drugs and Cosmetics
Act, 1940 read with Drugs and Cosmetics Rules, 1945
if gets the goods manufactured under his control,
supervision and direction and out of the raw material
supplied by him, is ‘manufacturer’ within the
meaning of Section 2(f) of the Central Excise Act.
Dealing with the said issue, the Gujarat High Court
held that in the light of the construction of Section
2(f) of the Central Excise Act having been given by
the Supreme Court, the Loan Licensees are also
‘manufacturer’ within the meaning of the term as
envisaged under the Central Excise Act and Rules.
The Gujarat High Court held that the Loan Licensees
were manufacturers in the context of Section 2(f) of
the Central Excise Act. We are afraid the analogy of
Section 2(f) of the Central Excise Act cannot be
applied for the purposes of expression ‘manufacturer’
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10
in the Pass Book Scheme. The term ‘manufacturer -
exporter’ in Pass Book Scheme has to be given natural
meaning contemplated under the scheme and that would
be the actual manufacturer of exported goods holding
the status of export house / trading house / star
trading house / super star trading house.
12. We, thus, find no infirmity in the order
dated 12th May, 1999 passed by the Joint Director
General of Foreign Trade, Mumbai.
13. The writ petition has no merit and is
dismissed with no order as to costs.
(R.M. LODHA, J.)
(J.P. DEVADHAR, J.)
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