RAJ PARKASH CHEMICALS LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated August 16, 1985 of a Division Bench of the High Court of Bombay summarily rejecting an appeal filed by the appellants against the dismissal of their writ petition by a learned Single Judge of that High Court.

(2.) The first appellant, Raj Parkash Chemicals Limited, is a public limited company with its registered office at Bombay. It is engaged in the manufacture of acrylic ester monomers (Butyl Acrylate, Ethyl Acrylate, 2 Ethyl Hexyl Acrylate and Methyl Acrylate) at its, factory in Tarapur, Maharashtra. These items are used by various industries engaged in the manufacture of Binders required in textiles, leather paint and paper industries. The second appellant is the Managing Director and a shareholder of the appellant company. In February 1975, the appellants were granted an industrial licence for manufacturing acrylic ester monomers in a total quantity of 3,000 tonnes per annum. The installed. capacity of the factory is, however, 1,000 tonnes per month. It commenced manufacture in December 1980, and was until then the only manufacturer in India of acrylic ester monomers. In the year 1981 the Indian Petrochemicals Corporation Limited, a public sector organisation, also entered the market and -began to. manufacture acrylic ester monomers at its factory at Baroda, which possesses a capacity of 10.000 tonnes per year.

(3.) In the period before 1980 in the absence of any indigenous manufacture of acrylic ester monomers, the Government of India permitted the import of those items on Open General Licence. Thereafter in the Import Policy 1981-82, with a view to protect indigenous industry and to conserve foreign exchange the Government of India placed acrylic ester monomers in Appendix 5 (List of restricted Items), and in July 1981 Ethyl Acrylate was taken from Appendix 5 to Appendix 3 (List of Banned Items). A public notice dated July 7, 1981 announced that Export Houses which were eligible to import Ethyl Acrylate would be allowed to import it only to the extent of irrevocable Letters of Credit opened before the date of the 'notice. Under Import Policy 1982-83, the nomenclature of the headings of the Appendices was altered, and the heading "List of Banned Items" of Appendix 3 was changed to "List of Limited Permissible Items". Likewise, the heading "Absolutely Banned List" of Appendix was altered to "List of Non-permissible Items (Banned)". And the heading "List of Restricted Items" of Appendix 5 became the "List of Automatic Permissible Items". Ethyl Acrylate remained in Appendix 3, and all other acrylic ester monomers remained in Appendix 5. Under Import Policy 1983-84. the headings of Appendices 3, 4 and 5 remained as they were, and all four acrylic ester monomers were placed in Appendix 3 (List of limited Permissible Items). Under import policy 1984-85 there was another change in the nomenclature of the headings of the Appendices. Appendix 2 Part A became the "List of Banned Items" and Appendix 2 Part 3 became the "List of Restricted Items". Appendix 3 continued to be the "List of Limited Permissible Items". Appendix 5 was the "List of Canalised Items". Appendix 6 mentioned the import of items under Open General Licence. That nomenclature and arrangement was reflected again under Import Policy 1985-88, except that Appendix 4 was deleted and the now Appendix 6 (the "Open General Licence" List) contained Part II now which listed items open to import under Export House Additional Licence. Under both Import Policies, 1984-85 and 1985-86 the four acrylic ester monomers appeared at Item 9 of Appendix 3 (List of Limited Permissible Items). Changes in the nomenclature of the headings of the Appendices in the Import Policy 1982- 83 and thereafter were considered necessary in the context of loans and financial assistance received from international agencies to bridge the gap in India's balance of payment, and because the Import Policy of India is considered a vital document by foreign countries in the formulation of their fiscal policies. The change in the nomenclature did not alter the principle underlying the grouping of items under the various heads. Each grouping was determined and continued to be so determined in accordance with two major objectives of import policy, the conserving of foreign exchange by limiting the total imports to a level ensuring that payment for them could be met by the available foreign exchange resources or by maintaining a minimum deficit in the balance of trade, and the further objective of giving impetus to, and protecting, the development of indigenous industries by limiting the import of corresponding. manufactured products. The items in Appendix 3 (List of Limited Permissible Imports) were those whose import was not permissible ordinarily but could be permitted by the Government if their import was necessary and justified on the mertis of the relevant consideration mentioned in the Import Policy, while the import of items Absolutely Banned (and later simply described as "Banned") was not permissible at all.