1986 (5) TMI 263 - SC - Customs

Grant of additional licences for the import of dry fruits - Held that - The respondents diamond exporters are not entitled to import dry fruits under the Import Policy 1985-88 under the Additional Licences possessed by them. They are also not entitled to the benefit extended by the judgment of this Court dated March 5 1986 to those diamond exportes who had imported items under irrevocable Letters of Credit opened and established before October 18 1985. It appears from the record before us that the respondents diamond exporters opened and established the irrevocable Letters of Credit after that date. Writ petition allowed and the respondents Nos. 10 and 11 M/s Rajni Kant Brothers and M/s Everest Gems are restrained from importing dry fruits during the period 1985- 88 under the Additional Licences granted to them under the Import Policy 1978-79

Issues Involved:

1. Grant of Additional Licences to diamond exporters for the import of dry fruits.
2. Interpretation of the Import Policies of 1978-79 and 1985-88.
3. Application of the principle of restitution for wrongful denial of Export House Certificates.
4. Legitimacy of importing dry fruits under Additional Licences.
5. Applicability of the Court's previous orders dated April 18, 1985, and March 5, 1986.
6. Fundamental rights and maintainability of the writ petition under Article 32.

Issue-wise Detailed Analysis:

1. Grant of Additional Licences to Diamond Exporters for the Import of Dry Fruits:
The petitioners, M/s Indo-Afghan Chambers of Commerce and its President, challenged the grant of additional licences to the respondents, diamond exporters, for importing dry fruits. The respondents were initially denied Export House Certificates under the Import Policy 1978-79, which was later rectified by the Court. The petitioners contended that the respondents were importing prohibited items under these licences.

2. Interpretation of the Import Policies of 1978-79 and 1985-88:
The Court analyzed the Import Policies of 1978-79 and 1985-88. It was noted that under the Import Policy 1978-79, dry fruits (excluding cashewnuts) could be imported by all persons under the Open General Licence, and no Additional Licence was required. However, under the Import Policy 1985-88, dry fruits (excluding cashewnuts and dates) were not open to import under the Open General Licence and required specific authorization.

3. Application of the Principle of Restitution for Wrongful Denial of Export House Certificates:
The Court held that the wrongful denial of Additional Licences to diamond exporters in 1978-79 did not justify subsequent restitution for importing dry fruits, as these could be imported under the Open General Licence without any additional licence during that period. Therefore, no damage was suffered by the exporters due to the denial of Export House Certificates in 1978-79 concerning dry fruits.

4. Legitimacy of Importing Dry Fruits under Additional Licences:
The Court examined whether the respondents could import dry fruits under Additional Licences granted under the Import Policy 1978-79. It was concluded that dry fruits (excluding cashewnuts and dates) were not importable under the Import Policy 1985-88 unless they met specific conditions, which the respondents did not satisfy.

5. Applicability of the Court's Previous Orders Dated April 18, 1985, and March 5, 1986:
The Court clarified that the items importable under the Additional Licences had to be permissible under both the Import Policy 1978-79 and the Import Policy 1985-88. The respondents' reliance on the Court's order dated April 18, 1985, was misplaced as the import of dry fruits did not satisfy the conditions set forth in the subsequent order dated March 5, 1986.

6. Fundamental Rights and Maintainability of the Writ Petition under Article 32:
The respondents argued that the writ petition under Article 32 was not maintainable as the petitioners' fundamental rights were not violated. The Court rejected this contention, stating that an interim order of the Bombay High Court could not defeat the fundamental rights of the petitioners, even if it was not challenged by the Customs or Import Control authorities.

Conclusion:
The writ petition was allowed, and the respondents, M/s Rajnikant Brothers and M/s Everest Gems, were restrained from importing dry fruits under the Additional Licences during the period 1985-88. The Civil Appeal against the Bombay High Court's order was also allowed, setting aside the High Court's judgment and restraining M/s Everest Gems from importing dry fruits under the Additional Licences granted under the Import Policy 1978-79. There was no order as to costs in both instances.

← Previous Next →