P RIPALKUMAR AND CO Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE four proceedings, that is two appeals and two writ petitions, can be conveniently disposed of by common judgment as the dispute involved in these four proceedings is identical. The appeals are directed against the judgment dated August 19, 1987 passed by the learned single Judge dismissing the writ petitions filed under Article 226 of the Constitution of India. The two writ petitions were referred to Division Bench and that is how the two appeals and the two writ petitions are placed before us for final disposal. For the purpose of appreciation issues involved in the proceedings we have referred to the facts involved in Appeal No. 1105 of 1987 which arise out of the judgment delivered by Single Judge in Writ Petition in Writ Petition No. 1457 of 1987.

(2.) THE appellants are a partnership firm carrying on business of exporting cut and polished diamonds after importing rough diamonds. The appellants are recognised export house within the meaning of the relevant import policy issued each year by the Government of India and are holders of an export house certificate issued by the Chief Controller of Imports and Exports, new Delhi. The petitioners for the purpose of carrying on its business of import and export avail of various facilities under the import policies issued by the Government from time to time. The import policies broadly classify the importers into two categories, that is Actual Users and registered Exporters. Registered Exporters are of three types, Manufacturer Exporters, Merchant exporters and Export/trading Houses. The Registered Export Houses are entitled to avail of different types of licences to meet their requirements and the licences issued are Replenishment licence, Advance Licence and Imprest Licence. During the Import Policy for the period 1982-83 an Export House was entitled to facilities as per Paragraph 183 of the policy. Paragraph 185 (4) of the Policy inter alia provided that the facilities for import of OGL items available in sub-para (3) may also be allowed on merits to export Houses against their advance/imprest licences on account of which they are eligible to obtain REP licence. In such cases, however, the value upto which the OGL import can be allowed shall not exceed the value to which the Export House should have been eligible to the rep licence, had he not obtained the advance/imprest licence in question. The facility was available to the export house only after discharge of the export obligation imposed on the advance/imprest licence. If by the time the Export House becomes eligible to the facility and the imprest licence has expired, or if the original validity left unused by that time is less than six months, then the licensing authority was required to revalidate the licence allotting a further time of six months for the purpose of importing OGL items.

(3.) RELYING on the representation contained in the Policy for 1982-83, the petitioners applied and were granted an imprest licence dated April 29, 1982 for a value of Rs. 28,17,821/- for the import of uncut and sunset diamonds and against which the petitioners had to effect exports of rs. 43,34,340 F. O. B. value. It is not in dispute that the petitioners carried out the export obligation and were issued redemption certificate on November 16, 1983 by the licensing authorities accepting the fact of fulfillment of the export obligation. In accordance with the provision of Paragraph 185 (4) of the Import Policy, the petitioners sought revalidation of the imprest licence with the requisite endorsement for the purpose of importing OGL items. The request made by the petitioners was rejected by the authorities on March 15, 1984. The request was rejected on an extraneous ground that there is no provision to endorse the imprest licence for ogl items in the Policy Book of 1984-85. H. Patel and Co. , a partnership firm whose application for revalidation and endorsement was also rejected by the authorities in similar circumstances filed Writ Petition No. 1465 of 1984 on the original Side of this Court under Article 226 of the Constitution of India. The petition was allowed by Single Judge by judgment dated September 18, 1984 and the authorities were directed to revalidate the imprest licence and make the requisite endorsement. The Import and excise authorities carried the matter right upto the Supreme Court, but without any success. The petitioners also filed Writ Petition No. 2477 of 1984 and the Petition was allowed by Mr. Justice pratap by judgment delivered on August 20, 1985. The learned Judge directed the authorities to :