PREMCHAND SOMCHAND SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) IF at all there was any field of controversy, it has been reduced drastically on account of admitted position that all the questions involved in this proceeding are practically decided by various pronouncements of this Court as also of the Supreme Court and really speaking nothing much survives in this petition. Net result is that the petition would obviously succeed. Since most of the points are already decided by various ratios of this court in identical matter, it would be an unnecessary exercise to re-consider and re-state all those facts again so that the controversy can be put in concise form and which is more so since only a short point is reflected through an order which has been impugned in this case. Consequently, therefore, a detailed discussion on the factual structure may not be necessary, though only a few landmarks can be stated.

(2.) THE petitioners herein are a partnership firm registered under the Indian Partnership Act and having their field of operation in this metropolis. They are engaged in the business of importing un-cut and un-set diamonds, having the same processed and then exporting out the polished diamonds. In pursuance to the import policy for the period between April, 1982 and March, 1983 in tune with para 185 thereof, the petitioners applied and were granted an Imprest Licence for cif value of Rs. 1,33,26,900/- for the import of un-cut and un-set diamonds against which the petitioners were obliged and had undertaken to make export of cut and polished diamonds for the value of Rs. 2,05,02,922/ -. The export obligation in the Imprest Licence was calculated at 65% of the average value added on 1,33,26,900/ -. There are various types of licences such as replenishment licence, Advance Licence and Imprest Licence. Such an Imprest Licence is issued when import is allowed outside the Duty Exemption Scheme. Under the relevant policy applicable to the Export House they have been given facility from time to time of importing open General Item (OGL) against the Replenishment Licence. In respect of Imprest Licence for export House a special provision has been enacted in Para 185 (4) of the said policy under which facility for import of OGL items available in sub-para 3 of that para may be allowed on merits to export House against their Imprest Licence on account of which they are rendered in eligible to obtain REP licence. In such case however the value upto which OGL import may be allowed will not exceed the value to which Export House would have been eligible to the REP licence, had he not obtained the Imprest Licence. Such facility would be available to the Export House after he has discharged the export obligation imposed on the Imprest Licence. Therefore, if by the time export House becomes eligible to this facility, the Imprest licence has expired, or, if the original validity un-used by that time, is less than six months, then licensing authority will revalidate the licence simultaneously so as to give to the licence holder a time of six months for the purpose of importing OGL items under this facility. Sub-para (5) deals with the necessity of getting the imprest Licence endorsed by licensing authority in order to get this facility and will be treated as non-transferable.

(3.) CONTINUING the thread of narration, pursuant to the Imprest Licence, having been granted to the petitioners, they imported un-cut and un-set diamonds for the total CIF value of Rs. 1,33,26,900/- whereafter they got the said diamonds manufactured and subsequently exported cut and polished diamonds for aggregate valued of Rs. 1,75,02,920. 18. Since in respect of the polished diamonds so exported average value worked out at more than 65% and, therefore, the petitioners were required to export cut and polished diamonds for the aggregate value of Rs. 1,75. 02,920. 18 instead of Rs. 2,05,02,922/ -. It thus appears that the petitioners could not fulfil or discharge their export obligations within stipulated time but had asked for extension from time to time which was ultimately extended upto 16-5-1984 and by which time admittedly they fulfilled their export obligation. Thereafter they applied for redemption certificate which however came to be granted merely two years thereafter and admittedly such redemption certificate was un-conditional. This followed further action on the part of the petitioners who then forwarded the imprest Licence, Redemption certificate and other required documents to the authority with a request to re-validate the said Imprest Licence and endorse the same for OGL endorsement in terms of Para 185 (4) of 1982-83 Policy.