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TMI Blog1985 (12) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... illed their export obligations but not during the original stipulated period which was six months from the date of the import of their first consignment on 19.5.1982. They did so only during the period which was extended by one year. In recognition of their fulfilling their required export obligations they were given a redemption certificate. 3. In terms of paragraph 185(4) of the Import-Export Policy for 1982-83, they thereafter applied for the facility of importing OGL items under sub-para (1) of the same paragraph. Their application was rejected on three grounds viz. (1) that the imprest licence was not valid, (b) that there was no balance available in the customs copy of the licence and (c) that there was no provision in the 1983-84 Import-Export Policy entitling the endorsement of the imprest licence. Hence the present petition was filed by the respondents under Article 226 of the Constitution. 4. It appears that a similar petition being Writ Petition No. 1465 of 1984 challenging the rejection of a similar application on the same three grounds was allowed by a learned single Judge of this Court. The appeal filed against the said decision was dismissed by the Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months of the said date and therefore by 19.11.1982. The respondents did not comply with their obligation by that date and hence they had applied for extending the said period and it was extended till 19.5.1983. During this period also they did not fulfil their obligation and the period was further extended at their request till 19.11.1983. It is only after the respondents complied with their export obligation during the second extended period that they were granted the redemption certificate on 16.11.1983 certifying that they had fulfilled their export obligation. On these admitted facts the contention of the appellants was that in the first instance the respondents were not entitled to import items under paragraph 185(4) and secondly, even if they were so entitled, they could not import items available as per the OGL Policy of 1982-83 but only those items which could be validly imported under the current OGL policy. It was argued in this connection that to make available the benefits of paragraph 185(4) to such persons as the respondents who had delayed the performance of their export obligations was to place a premium on such delays and also to grant them an undue advantage a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bligations in time so as to arrange the shipment of the O.G.L. goods before 31.3.1983. Either they avail of the said facility according to the terms of the scheme or they do not. They cannot however by their own conduct postpone the date of the import of the OGL goods and defeat the purpose of the import policy itself and also gain an undue monetary advantage. It was further contended on behalf of the appellants that what paragraph 185(7) contains is nothing but the provisions of OGL Order No. 1/82, dated 5.4.1982 which has a statutory force and prevails over the statement of Import-Export policy. If there is a conflict between the said Order and paragraph, 185(4) obviously the said Order should prevail and the paragraph 185(4) should be read accordingly. The benefits given under paragraph 185(4) are certainly not meant for defeating the import policy but to promote the exports. There is no other way of reconciling paragraphs 185(4) and 185(7) unless the interpretation ignores the import and export policy of 1982-83 as laid down in Order No. 1/82. 6. In reply to these contentions, the respondents submitted that the licence which was granted to them on 29.4.1982 for the licensing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his export obligation will not entitle him to an endorsement on the licence for the import of O.G.L. items. For, the certificate has to be issued whether the export obligation is performed within or without time. Once the time to perform the export obligation is extended, the certificate must follow after the obligation is discharged. The authorities cannot refuse to extend the time for performing the export obligations since it will be a self-defeating exercise. The original imports are permitted for performing the corresponding obligation to export. To refuse to extend time to export will obviously harm the Revenue. Hence there is no duty incurred by the authorities to endorse the licence for the import of OGL items and thus to give the licence-holder the benefit of paragraph 185(4) by a mere issuance of the redemption certificate. We also see enough substance in the Appellants contention that the importers such as the Respondents who perform their export obligations beyond the stipulated time will derive undue benefits as against those who perform them within time since the late performers will be entitled to import items permitted under OGL policy of 1982-83 but banned or res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e holder has to take several steps before he applies for endorsement on the licence under paragraph 185(5), for the import of OGL items. Hence the application for the import of OGL items and their consequent import would in most cases be after the 31st March, 1983. That is why specifically it is stated in paragraph 185(4) as follows. We are reproducing the relevant portion of the paragraph at the cost of repetition to emphasise the point. - This facility will be available to the Export House after he has discharged the export obligation imposed on the advance/imprest licence. Therefore, if by the time, the Export House becomes eligible to this facility, the advance/imprest licence has expired, or, if the original validity left unused by that time is less than six months, the licensing authority will revalidate the licence simultaneously so as to give to the licence holder a time of six months for the purpose of importing OGL items under this facility. What is further of importance to note from the aforesaid provisions of paragraph 185(4) is that the facility given there is for importing OGL items not on OGL licence but on advance/imprest licence itself which is to be revalida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not fall within the said definition of Actual User (Industrial) for they are neither an industrial undertaking nor do they need OGL items for any manufacturing processes or operations of their own. On the other hand, paragraph 185(6) permits them to sell the same to Actual Users (Industrial). Hence no part of the OGL Order No. 1/82 including Clause 21 thereof will apply to the respondents. The contention advanced on behalf of the appellants that the licence issued to the respondents is an Actual Users (Industrial) licence is according to us misconceived. For what is issued to them is an imprest licence for importing unset and uncut diamonds. It is this licence which is the Actual Users (Industrial) licence and it is under this licence that they had imported unset and uncut diamonds which were for processing them into refined diamonds. This licence is not the Actual Users Open General Licence. As stated earlier, the OGL Order No 1/82 applies to Actual User? Open General Licence and not to Actual Users imprest or advance licence. 13. Similarly, paragraph 35 of Appendix 10 which is par/ mater/a with Clause 21 of OGL Order will also not be applicable to the respondents for App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en General Licence during 1982-83 but is no longer so in this Import-Export policy meaning thereby the Import Export Policy of 1983-84. The paragraph however does not refer to advance/imprest licences and is confined only to REP and additional licences. This shows that the facility given by paragraph 185(4) of 1982-83 Policy to advance/imprest licence holders was very much present in the mind of the policy makers while laying down the Import Policy for 1983-84. Were it not so, there is no reason why the prohibition contained in paragraph 255(3) should not have been extended also to import of OGL items under advance/imprest licences. This only means that the policy makers did not want to take away the facility given earlier to the advance/imprest licence-holders to import OGL items even after 1982-83 OGL Policy expired. 16. We also further find that the learned single Judge has under his impugned order not allowed the import of OGL items which are specifically banned under the current import policy. Hence the fear expressed by the appellants with regard to the effect of the imports on the market for the indigenous products and the possibility of the Respondents making huge profits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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