1984 (10) TMI 212 - HC - Customs

Issues Involved:
1. Validity of the orders dated 27th February 1974, 16th November 1974, and 4th August 1980.
2. Requirement for a certificate from the Director General of Trade Development (DGTD).
3. Adjustment of previous import licenses against future entitlements.
4. Jurisdiction of the Joint Chief Controller of Imports and Exports (JCCIE) and Chief Controller of Imports and Exports (CCIE).
5. Right to a hearing before passing orders affecting civil rights.
6. Definition and implications of "excess licensing."

Detailed Analysis:

1. Validity of the Orders Dated 27th February 1974, 16th November 1974, and 4th August 1980:
The petitioner company challenged the orders passed by the JCCIE, which adjusted the value of three import licenses against future entitlements. The court found that these orders were passed without hearing the petitioner, thereby affecting their civil rights. The orders were deemed non est (null and void) as they were passed without jurisdiction and without giving the petitioner an opportunity to be heard.

2. Requirement for a Certificate from the DGTD:
The JCCIE had directed the petitioner to produce a certificate from the DGTD to prove that the petitioner was a manufacturer of lacquers, which was necessary for importing nitro cellulose cotton. The petitioner failed to produce this certificate, leading to the JCCIE's decision to adjust the import licenses. However, the court noted that the petitioner was not given adequate notice or opportunity to comply with this requirement, rendering the subsequent orders invalid.

3. Adjustment of Previous Import Licenses Against Future Entitlements:
The court held that neither the Import Export Control Act nor the Import Control Order empowered the respondents to adjust the value of previous licenses against subsequent ones. The powers conferred by the Import Control Order did not include such adjustments. The court emphasized that any breach of license conditions should result in cancellation of the license under clause 9, not adjustment against future entitlements.

4. Jurisdiction of the JCCIE and CCIE:
The court found that the JCCIE and CCIE acted beyond their jurisdiction in adjusting the value of the licenses. The Import Control Order did not provide for appeals against such adjustments, and the appellate authorities' orders were of no consequence. The court ruled that the impugned actions were without jurisdiction.

5. Right to a Hearing Before Passing Orders Affecting Civil Rights:
The court underscored the importance of giving the petitioner an opportunity to be heard before passing any orders affecting their civil rights. The original order dated 27-4-1974 was passed without issuing a show-cause notice to the petitioner, thereby violating principles of natural justice. The court quashed the order on this ground alone.

6. Definition and Implications of "Excess Licensing":
The court examined the concept of "excess licensing" and found that it was not defined in the relevant laws or policy statements. The respondents contended that the petitioner's failure to produce the DGTD certificate and subsequent utilization of the licenses amounted to excess licensing. However, the court rejected this argument, stating that excess licensing should be determined based on the registered exporter's application, not the nominee's actions. The court concluded that there was no basis for ascertaining excess licensing in the absence of item-wise values in the licenses.

Conclusion:
The court allowed the petition with costs and made the rule absolute in terms of prayers (a), (b), and (c), thereby quashing the impugned orders and directing the respondents to withdraw and cancel the said orders and issue the import licenses as requested by the petitioner.

← Previous Next →