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2022 (11) TMI 300 - SC - CustomsDoctrine of promissory estoppel - Claiming benefit as per the old exim policy - new exim policy does not grant such benefit - Entitlement of benefit of additional licence on the export of processed iron ore - period April, 1990 to March, 1991 - HELD THAT - It is an admitted position that the processed iron ore had been exported during April, 1990 to March, 1991. It is to be noted that under the Exim Policy 1990-93, Minerals and Iron Ore are included in the list of ineligible items. As per Exim Policy 1988-1991, only the export of unprocessed iron ore was ineligible to get the benefit of additional licence. However, when the new Exim Policy 1990-93 came into existence, the Minerals and Iron Ore are in the list of ineligible items the appellant had actually exported processed iron ore during the period April, 1990 to March, 1991, which was under the regime of new Exim Policy 1990- 93 and as observed hereinabove under the new Exim Policy 1990-93, the export of Minerals and Iron Ore are included in the list of ineligible items, the appellant has been denied the benefit of additional licence. At this stage, it is required to be noted that under the Exim Policy, the benefit of additional licence which as such was in the form of an incentive is available on actual export in the preceding year and the benefit of such export for the purpose of additional licence to the FOB value shall be available in the next year. Under the Exim Policy, the benefit of additional licence shall be available only on actual export in the previous year and that too to eligible items only - in the absence of any challenge to the new Exim Policy 1990-93 under which on export of Minerals and Iron Ore , there shall not be the benefit of additional licence, the new Exim Policy 1990-93 shall be applicable. The appellant is claiming the benefit of additional licence under the Exim Policy 1988-91 on the ground of promissory estoppel. However, when the new Exim Policy 1990-93 is held to be applicable under which on export of Minerals and Iron Ore , there shall not be any benefit of additional licence, the appellant cannot be permitted to claim the benefit of additional licence under the old Exim Policy, which was not in existence. Doctrine of promissory estoppel - HELD THAT - It is required to be noted that the benefit of additional licence was in the form of an incentive. The DEFT/Union is free to change the Exim Policy and consider from time to time on which items there shall be an incentive and on which items there shall not be any incentive. To grant the benefit of an incentive is a policy decision which may be varied and/or even withdrawn. No exporter can claim the incentive as a matter of right. Under the circumstances, the doctrine of promissory estoppel shall not be applicable to such a policy decision with respect to incentive, more particularly when it is well within the right of DGFT/appropriate authority/Union to come out with a new Exim Policy - The policy and the incentive scheme are very clear. Incentive in the form of an additional licence is on actual export in the previous year. Therefore, the relevant date shall be the date on which the export is made. Claim of benefit on the ground that some other similarly situated exporters have claimed the benefit - HELD THAT - Merely because some others are granted the benefit wrongly, the appellant cannot be permitted to pray for the similar benefits. There cannot be any negative discrimination which may perpetuate the illegality. The appellant cannot be allowed the benefit of additional licence on the ground that some others might have been granted such benefits de hors the scheme, which otherwise the appellant is not entitled to under the scheme - It is very unfortunate that despite the High Court s order, no further enquiry has been conducted. Be that as it may, once it is held that the appellant is not entitled to the benefit of additional licence on export of Minerals and Iron Ore , the matter ends there and the appellant cannot be allowed such benefit, which otherwise the appellant is held not entitled to. The High Court has rightly confirmed the order passed by the authority denying the benefit of additional licence to the appellant - Appeal dismissed.
Issues Involved:
1. Entitlement to the benefit of additional licence under Exim Policy 1988-91. 2. Applicability of the doctrine of promissory estoppel. 3. Allegation of discrimination under Article 14 of the Constitution of India. Issue-wise Detailed Analysis: 1. Entitlement to the Benefit of Additional Licence: The appellant, engaged in the export of processed iron ore, claimed entitlement to an additional licence based on exports made during the period April 1990 to March 1991. Under the Exim Policy 1988-91, only unprocessed iron ore was ineligible for additional licences. However, the Exim Policy 1990-93 included "Minerals and ores" in the list of ineligible items, affecting the appellant's eligibility. Despite the appellant's reliance on the Exim Policy 1988-91, the actual export occurred under the new Exim Policy 1990-93, which explicitly excluded processed iron ore from eligibility for additional licences. The High Court and the Supreme Court upheld the denial of the additional licence based on the applicable policy during the export period. 2. Applicability of the Doctrine of Promissory Estoppel: The appellant argued that the doctrine of promissory estoppel should apply, as they had acted upon the Exim Policy 1988-91 and entered into a contract based on the incentives promised therein. However, the Supreme Court held that the benefit of an additional licence was an incentive and not a right. The government was within its rights to change the policy, and the principle of promissory estoppel could not be applied to policy decisions regarding incentives. The relevant date for determining eligibility was the actual export date, which fell under the new Exim Policy 1990-93, rendering the appellant ineligible for the additional licence. 3. Allegation of Discrimination under Article 14: The appellant contended that other similarly situated exporters were granted additional licences, alleging discrimination. The Supreme Court dismissed this argument, stating that negative discrimination could not be claimed to perpetuate illegality. The appellant could not demand benefits based on erroneous grants to others. The High Court had ordered an inquiry into how other exporters received benefits, but no further action was taken. The Supreme Court affirmed that the appellant was not entitled to the additional licence under the applicable policy, regardless of the treatment of other exporters. Conclusion: The Supreme Court upheld the High Court's decision, confirming the denial of the additional licence to the appellant based on the Exim Policy 1990-93. The principles of promissory estoppel were deemed inapplicable to policy changes regarding incentives, and claims of discrimination were rejected. The appeal was dismissed, with no order as to costs.
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