Aval Exports And Anr. vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 1101 Del

JUDGMENT

C.K. Mahajan, J.

1. The short question that arises for consideration is whether the petitioner is entitled to value based licenses or quantity based licenses. The petitioner prays that the decision of the respondents contained in the letter dated 4.1.1995 be quashed.

2. Petitioner No. 1 is engaged in the export of 100% Mulbury raw silk garments fitted with seq. beads. The handbook of procedure 1992-1997 provides for a scheme wherein an obligation is cast on the exporters to make exports with entitlement to have the import of raw material without payment of duty. The petitioner was entitled to value based licenses in lieu of the exports made. The policy was issued by the Government to promote exports to earn more foreign exchange. The incentives were given to the exportes in the form of duty free licenses entitling the exporter to import raw material against the said exports. The scheme entitlement worked in the following manner. An exporter on having a confirmed export order intending to take benefit under the Scheme ws required to make application for grant of duty free licenses before the Advance Licensing Committee and becomes entitled to duty free licenses in terms of the norms laid down in Volume II of the Hand Book of Imports and Exports Procedure. The exporter wa required to carry out export obligations to procure raw material indigenously and without waiting for the grant of the duty free license, he would become entitle to the duty free license in pursuance of the said application. The second method was that te exporter was to make import of raw materials in advance after having been granted a license and execute necessary legal undertakings supported by bank guarantees to get the imported goods cleared without payment of duty and put to use the said raw mateials in producing the said exports and meeting the export obligations as per the conditions of a license.

3. The petitioners procured large number of export orders from different parts of the world and in particular from Europe and USA for export of mulbury silk garments. During the period 29.6.1992 to 12.8.1993, petitioner No.1 moved 26 applications for grant of value based licenses of the total value of US$ 15.65 lakhs for import of raw material, i.e., Mulbury Raw Silk. At the relevant point of time when the applications were made, the petitioner's entitlement was to duty free licenses on value based.

4. The cocept of value based licenses is set out in the policy. If an exporter makes exports of the goods of certain amount, it would be entitled to import the raw materials like silk, sequence and beads without payment of duty of particular amount irrespective f the quantity/weight thereto as per the endorsement of license. The relevant provisions in the handbook of procedures laying down the norms with regard to petitioner's entitlement were as under :-

(a) Raw silk with value addition of 150 per cent initially, and though subsequently, the value addition was revised to 175 per cent ad valorem.

5. Against the 26 licenses applied for by the petitioners, six duty free licenses were issued along with the relevant DEEC Book (Import and Export Parts). All these licenses were issued on value based. It is stated that applications were required to be disposed of within 5 days as per para 109D of Hand Book of Procedure (Vol.I) of Import-Export Policy 1992-1997. It is also stated that the petitioners carried out export obligations in terms of the orders which was also informed to the respondent by letter dated 16.11.1992. The foreign exchange, i.e., the price of the goods has already been remitted to the country and a bank certificate to this effect was also sent to the respondent. Therefore, all necessary requirements were met. The petitioners made represntations against balance 20 applications, but the licenses were not issued. By letter dated 11.1.1993, the petitioner was advised to submit revised applications on account of issue of a public notice dated 24.11.1992. The petitioner submitted another appication on 27.1.1993. Vide letter dated 28.4.1993, petitioner was again asked to submit revised application in view of the amendment in the policy. The petitioner again submitted a fresh application on 3.8.1993. On 20.12.1993, the petitioner was asked to submit applications for issuance of quantity based advance license. The petitioner pointed out to the respondent that the petitioner was entitled to the value based license. The Public Notice No.PN153(PN)/92-97 bringing out the concept of quantity basedicence was issued on issued on 20.8.1993. The petitioners pointed out that the petitioners are not subject to the said public notice because immediately after making applications, the petitioner commenced export and completed the export obligations and ealised foreign exchange. The petitioners thus requested the respondents to issue value based licenses. By another letter dated 24.6.1994, the respondents again asked the petitioners to submit revised applications for quantity based licenses.

6. The petitioers vide letter dated 11.7.1994 reiterated that since they are entitled to value based licenses, reference to quantity based licenses is of no consequence. The petitioners state that in spite of any application having been made for quantity based license the respondents issued eight quantity based licenses which is erroneous. The petitioners returned the quantity based licenses to the respondents. The petitioners again vide letter dated 9.12.1994 pointed out that they are entitled to value based license and they cannot be made to suffer because the public notice has been issued. The public notices are in the field of administrative directions which cannot take away statutory rights conferred on the petitioners. It is stated that vide letters dated 6.4.995 and 30.5.1995, the respondents informed the petitioners that their request for issuance of value based licenses is under consideration. However, vide letter dated 14.9.1995, the respondents rejected the request of the petitioners for issuance of valubased licenses and also refused to grant 8% premium. The petitioners submitted a detailed representation dated 1.11.1995 stating that the order dated 14.9.1995 is violative of principles of natural justice as no hearing was granted. However, the represetation was also rejected by the respondents. A representation dated 22.3.1996 was again submitted to which no reply was sent by the respondents.

7. Hence the present petition.The petition is opposed by the respondents. It is stated that an exporter after submission of his application for advance license may make exports in fulfillment of export obligation but he cannot claim license as a matter of right as per the provisions of the Import-Export policy. The petitioners did not complete their application for value based advance license due to which license could not be issued in their favor. Subsequently, value based advance licensing scheme in respect of silk exports was witdrawn by the Government in public interest vide Public Notice No.153 (PN)/92-97 dated 20.8.1993 and hence no value based advance licenses were issued to the petitioners. The benefits of duty exemption scheme are not allowed on the basis of the policy prealent on the date of filing of the application but the same are allowed as per policy prevailing on the date of issue of the advance license. However, the revised applications forms can be called for as per policy provisions changed from time to time.

8. I have heard learned counsel for the parties and also perused the documents placed on record.

9. The short controversy involved in the present case is whether the petitioners are entitled to value based licenses or quantity based licenses. Admittedly, the petitioners submitted all the 26 applications before the issue of the public notice dated 20.8.1993 which provides that in case of export of silk textiles, only quantity based advances licenses shall be granted. Learned counsel for the petitioners submits that as per Rules 109D of the Hand Book of Procedure 1992-1997, the respondents was obliged tgrant value based licenses within five days of the submitting of the complete applications. The delay was on the part of the respondents in not issuing the licenses within five days. The respondents kept on asking informations which were supplied by the petitioners.

10. There was no fault on the part of the petitioners. Furthermore, since the petitioners also carried out the export obligations and intimated the respondents about the same, a vested right accrued in favor of the respondents for grant of valubased licenses.

11. Clause 48 of the Export and Import Policy 1992-1997 stipulates as under :-

Advance license :

An advance license is granted for the duty free import of inputs. Such license shall be issued in accordance with the policy and procedure in force on the date of issue of the license and shall be subject to the fulfillment on a time-bound export obligation and value addition as may be specified. Advance licenses may be either value based or quantity based.

12. Clause 66 of the said policy provides that :-

Exports in anticipation of license :

''Exports/supplies made from the date of receipt of an application under this Scheme by the licensing authority may be accepted towards discharge of export obligation. If the application is approved, the license shall be issued based on the input output and value addition norms in force on the date of receipt of application by Licensing authority in proportion to the provisional exports already made till any amendment in the norm is notified. For rest of the exports the Policy/Procedures in force on the ate of issue of the license shall be applicable........''

13. Learned counsel for the petitioners placed reliance on a judgment of this Court in G. D. Impex International (India) and Anr. Vs. Union of India and Ors. (CWP No.567/94 decided on 12.12.2002) and contends that a right accrued in favor of the petitioners when it made the exports and applied for grant of value based licenses. It was held that :-

''It is trite law that the Government has right to take a policy decision and it can rescind/alter/modify or reformulate its earlier policy decision. However, any right which has accrued in favor of a party under earlier policy cannot be taken away by change in policy decision which is taken subsequently. In other words, the decision contained in public notice dated 14th September 1993 could not have operated retrospectively so as to take away vested right of the petitioners which had accrued to them on the basis of exports duly made by 21st/23rd July 1993 and for which the petitioners had acquired a right to the grant of value based duty free license but the license was infact been sanctioned and prepared. Merely because the license was not dispatchednd thus could not reach the petitioners, would not take away their right to enjoy the fruits of the license. The matter cannot be left to the whims of the person who had to undertake the dispatch of the license.''

14. Learned counsel for the petitioner has also relied on a judgment of the Bombay High Court in Shree Krishna Woollen Mills Pvt. Ltd., Bombay Vs. Controller of Imports and Exports and Ors. reported in 1989 (24) ECR 15 (Bombay) and contends that since a right has accrued in favor of the petitioners, they were entitled for the grant of value based licenses. In the aforesaid judgment, it was held that :-

''What is necessary to be seen is when the petitioners could be said to have earned the right to get the said license. The right came into effect under the 1983-84 Import Policy. In my judgment the right cannot be taken away by any changes made in the subsequent Import Policy.''

15. Reliance has also been placed on Priyanka Overseas Pvt. Ltd. Vs. Union of India it was held that :-

''If the Revenue authorities either refuse to pass the order on some erroneous or imaginary grounds or on account of any misconception of law, the department cannot take advantage of its own wrong in demanding higher rate of duty from the importer.''

16. The ratio of the aforesaid judgment was reiterated by Calcutta High Court in Kanchanjanga Pvt. Ltd. Vs. Collector of Customs 1993 (66) E.L.T. 171 (Cal.) and by the Supreme Court in Kuil Fireworks Industries Vs. Collector of Central Excise 1997 (95) E.L.T . 3 (S.C.).

17. Learned counsel for the petitioner has also relied on a judgment of the Supreme Court in M/s. Bharat Barrel and Drum Mfg. Co. (P) Ltd. Vs. The Collector of Customs, Bombay and anr. wherein it was held that :-

''The condition that the sheets imported must be of 'prime quality' was imposed for the first time by the Iron and Steel Controller's Public Notice No.I/I-S/62, dated December 6, 1962 and could not obviously apply to the sheets imported under the two licenses which were issued earlier.......the public Notice No.I/I-S/62 dated December 6, 1962 of the Iron and Steel Controller had no retrospective operation and the condition of 'prime quality' could not be applied to the sheets imported under the licenses issued before that date.''

18. Now, the question is as to when a right accrued in favor of the petitioners for entitlement of value based licenses. Whether the petitioners were entitled to the grant of value based licenses when it filed the applications for grant of value based licenses or when it made the exports.

19. Learned counsel for the respondents states that petitioners was entitled to grant of licenses as per the policy which was prevalent on the date of issue of the licenses. By public notice dated 20.8.1993, the policy was changed and therefore only quantity based licenses were to be issued. The petitioners were not entitled to grant of value based licenses as a matter of right. Merely on filing of the applications, no vested right was created in favor of the petitioners nor any right accrued.

20. In support of his contentions, learned counsel for the respondent has relied on S.B. International Ltd. etc. Vs. Asstt. Director of General of F.T. and Ors. Etc. wherein it was held that mere making of an application does not create any right in the applicant since he has no pre-existing right to such license. It was also held that in a case where one has to ask for an import license promising to export goods of a particular value within a particular time, it is difficult to appreciate how mere filing of an application creates a vested legal right to obtain a license according to the value addition norms in vogue on the date of the application. It is the date of license that is relevant and not the date of application therefore.

21. The mere fact that the authorities have a discretion to take into account the exports made after the date of application for advance licenses makes no difference to this position; it is in the nature of yet another concession. What is relevant is that he license granted under Chapter VII of the Policy is an advance license. It is granted in advance of export - rather to enable the export. The theory of a vested right accruing to the applicant to get a license as per the norms in force on the date of aplication is inconceivable in such a situation, unless, of course, the Policy itself says so. It was also observed that grant of license is neither a mechanical exercise nor a formality. On receipt of the application, the authorities have to satisfy them elves about the correctness of the contents of the application.

22. They also have to satisfy themselves that the application satisfies all the requirements of the scheme and the other applicable provisions of law, if any. In a country like ours, where abuse of such facilities is rampant, reasonable time has to be afforded to the authorities to process the application (What is a reasonable time, of course, depends on the facts of each case. No hard and fast limit can be prescribed). It is only after approprite verification that the license is granted.

23. It was therefore held that :-

''We are, therefore, of the opinion that the contention that a vested right accrues to an applicant for issuance of advance license on the basis of the norm obtaining on the date of application is unacceptable. The scheme and the context militate againstthe contention.......''

24. The aforesaid principles were again reiterated by the Supreme Court in P.T.R. Exports (Madras) Pvt. Ltd. and Ors. Vs. Union of India and Ors. wherein it was held that an applicant has no vested right to have export or import licenses in terms of the policies in force at the date of his making application. For obvious reasons, granting of licenses depends upon the policy prevailing on the date of the grant of the license or permit. The authority concerned may be in a better position to have he overall picture of diverse factors to grant permit or refuse to grant permission to import or export goods. The decision, therefore, would be taken from diverse economic perspectives which the executive is in a better informed position unless the refual is mala fide or is an abuse of the power in which event it is for the applicant to plead and prove to the satisfaction of the Court that the refusal was vitiated by the above factors. It was further held that :-

''It would, therefore, be clear that grant of license depends upon the policy prevailing as on the date of the grant of the license. The Court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government are satisfied that change in the policy was necessary in public interest, it would be entitled to revise the policy and lay down new policy.

The Court therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilisation of its finances in the public interest. It is equally entitled, therefore, to issue or withdraw or modify the export or import police in accordance with the scheme evolved..........''

25. The aforesaid decision was followed by this Court in Creative Handicrafts Vs. Union of India and Ors. .

26. Clause 48 of the Export and Import Policy 1992-1997 clearly stipulates that license shall be issued in accordance with the policy and procedure in force on the date of issue of the license. Furthermore, clause 66 of the said policy stipulates subject to approval of the application, the license shall be issued on the input output and value addition norms in force on the date of receipt of application by the Licensing authority.

27. In light of the aforesaid provisions of the Export and Import Policy 1992-1997 and the judgments of the Supreme Court and of this Court, it is clear that the petitioners had no vested right to have import licenses in terms of the policy in force at the date of making the applications. Granting of licenses depends upon the policy prevailing on the date of the grant of the license. Therefore, the decision of the respondents to grant quantity based licenses in terms of the policy prevailing at the time of rant of license is upheld.

28. There is no merit in the petition. Dismissed.