2009 (8) TMI 74 - HC - Customs

Setting Up Plant Import at concessional rate of duty Ch. SH. 98.01 - Regulations 5(4) of the Project Import Regulations 1986 - REP licence Meaning of the term wherever required - The contention of the importer is that if an importer wants to import goods under Tariff Entry 98.01, under R.E.P licence the regulation 5(4) would not be attracted as the contract which has to be registered can only be done in a case where where there is an Import Trade Control licence Held that - The intent of the legislature must be given its due meaning - the expression wherever required would have to be read in the context that in a case where a person seeks to import licence or a REP licence then there is no need for Import Trade Control Licence. - if contracts entered into are registered with then the import can be done either under an Import Trade Control licence or R.E.P. Licence so long as the importer has a contract in which the goods sought to be imported are specified and the import is based on the Import Policy

Issues Involved:
1. Requirement of specific import licence under Regulation 5(4) of the Project Import Regulations 1986.
2. Validity of REP licences for concessional duty under Tariff Heading 98.01 of the Customs Tariff Act 1975.
3. Jurisdiction of Customs House Officer to register contracts under Regulation 5(4).

Detailed Analysis:

1. Requirement of Specific Import Licence under Regulation 5(4):
The primary issue was whether the petitioners needed a specific import licence to avail of the benefits under the Project Import Regulations 1986. The petitioners argued that the Regulations did not mandate a specific licence for project imports and that the refusal by the respondents to register the contracts on this ground was arbitrary and ultra vires. The respondents contended that Regulation 5(4) required an import licence, and the REP licence held by the petitioners did not meet this requirement.

2. Validity of REP Licences for Concessional Duty:
The court examined whether REP licences could be used for importing goods under the concessional duty rate specified in Tariff Heading 98.01. The respondents argued that REP licences were not valid for this purpose, as the Regulation 5(4) specifically required an import licence. The court noted that the Import Trade Policy allowed for imports under both specific licences and REP licences. The court interpreted the phrase "wherever required" in Regulation 5(4) to mean that an import licence was necessary only when goods could not be imported under an REP licence. Thus, the court concluded that REP licences could be used for importing goods under Tariff Heading 98.01, provided the contracts were registered and the goods specified.

3. Jurisdiction of Customs House Officer:
The court also addressed whether the Customs House Officer had the jurisdiction to register contracts when the importer held an REP licence. The court held that the Customs House Officer did have the jurisdiction to register such contracts, as long as the application included the contract and the importer had the necessary licences. The court emphasized that both REP licences and import licences were issued by the same authority and should be considered valid for the purpose of registering contracts under the Project Import Regulations 1986.

Conclusion:
The court allowed the petition, directing the respondents to register the contracts and return the bank guarantee furnished by the petitioners. The court clarified that REP licences could be used for importing goods under Tariff Heading 98.01, and the Customs House Officer had the jurisdiction to register such contracts. The decision emphasized the interpretation of Regulation 5(4) to include REP licences within its scope, thereby granting relief to the petitioners.

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