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TMI Blog1988 (5) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... ements thereof take within its ambit amendments to the policy make throughout the policy period ? E. Whether a Licensee has a vested right to import items as per the import policy in force on the date of issue of the licence and/or the announcement of the new policy and/or the date of specific endorsement thereof ?" 2. Brief facts leading to the present application are : The applicants imported 3 consignments of Non Special Type Petroleum Jelly, White USP and claimed clearance of the imported goods as Letter of Authority holders in respect of 2 Export House Non-transferrable REP Licences bearing Nos.(i) P/K/W/0468710, dated 24-3-1982 issued in the name of M/s. Kantilal Chhotalal, Bombay and (ii) P/K/W/0465938, dated 3-2-1982 issued in the name of M/s. Uni Gem (India) Limited, Bombay. These licences were issued under licence period AM-82 and were valid for 12 months from the date of issue. At the time of issue of these licences only special types of Petroleum Jelly alone was a canalised item and it continued to be like that till 14-8-1982, when, vide ITC Public Notice 41/82, dated 16-8-1982 the entry under canalised list was amended to read as All types of Petroleum Jelly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c Notice No. 41/82 which was issued canalising all types of petroleum jelly and in so doing, the Collector was trying to give retrospective effect to the provisions of the ITC Public Notice. It was further submitted that as per the endorsements made on the Importers Licences, the same would be subject to the conditions laid down in the relevant ITC Policy during which the licences were issued or any amendments up to and including the dates of issue of the licences, unless otherwise specified. And further that these two licences were issued on 3-2-1982 and 24-3-1982. that is, prior to 16-8-1982 which was the date of issue of ITC P.N. 41/82 and were indorsed by ITC authorities for import of O.G.L. items and made transferrable on 26-4-1982, Letters of Credit were opened by the Importers on 28-2-1983; the goods were imported in terms of the provisions of Para 183, sub-para (4) of ITC. Policy 1981-82 dealing with special policy for Export Houses. It was also pleaded that ITC P.N. 41/82 did not say that amendments to Policy introduced therein were to be applied and/or would be applicable to licences already issued during the earlier policy period. The said application was treated as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC704. 2. M/s. Patel fmpex Pvt. Ltd., Bombay v. Collector of Customs, Ahmedabad 1984 ECR3W. 3. HES Limited v. Collector of Customs, Bombay, 1985 (25) ELT 385. 4. Ashwin Vanaspati Industries Pvt. Ltd. v. Collector of Customs, Ahmedabad, 1987 ,(27) ELT 300. 5. Jayant Vegoils and Chemicals (P) Ltd. v. Union of India, 1987, (30) ELT 134. 6. In reply Shri Saha, learned JDR submitted that in the instant case the Tribunal agreed in principle that retrospective effect could not be given to the Public Notice 41/82 as can be seen from para 4 of the order dated 15-4-1987 passed by this Tribunal. He further submitted that the question framed by the applicants in fact does not arise out of the order passed by this Tribunal inasmuch as it was never argued at the time of hearing of the appeal that the importer had any vested right or it cannot be taken away by a Public Notice. Alternatively he submitted that this question is no longer res integra inasmuch as in the case of P. Ripalkumar and Company, Bombay v. UOI, 1987(32) ELT 668, the Hon ble Bombay High Court after reviewing the entire case law on the point concluded that goods specifically banned under current policy cannot be impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing) agencies mentioned in the Appendix. It was noticed that the said Appendix before the amendment made therein did not cover the spices cinnamoft and cloves. Under these circumstances it was contended by the importer in that case that the Government could only have made an amendment in order No. 40/85-88 by issuing an order under Section 3 and since there is no order under Section 3 amending Appendix 5, the addition of the items of cloves and cinnamons in Appendix 5 by issuing a public notice is not valid. Repelling the contention the Division Bench of the Delhi High Court after reproducing para 2 of Chapter I of the Imports and Exports Poticy for April, 1985 to March, 1988 Volume I held that from the said para it is clear that the Government can make amendments in the Import Policy for the years 1985-88 by issuing public notices amendment orders, etc. Hence this question is not referrabfe firstly because it does not arise out of the order passed by this Tribunal and secondly because it is no longer res integra. 8. As regards question B - This question in fact does not arise out of the order passed by this Tribunal inasmuch as it was never argued nor considered by this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven the retrospective effect to the said ITC Public Notice 41/82 and this limited aspect was examined by this Tribunal in para 6 of the order dated 15-4-1987. 11. We have considered the arguments and the case law cited by the learned Counsel for the applicants. The case of Mangla Bros. v. Collector of Customs, supra is distinguishable on the facts of the case. In that case Import Policy was amended after the arrival of goods at the Port. Whereas in the instant case admittedly after a good 6 months of the issuance of the ITC Public Notice 41/82, the letter of credit was opened and the impugned goods were shipped. How para 231 (3) of AM-83 was invoked by the applicant and ultimately disposed of by this Tribunal can be seen from para 6 of the order passed by this Tribunal. From this para it can also be seen that the question as to whether the provisions of para 231 (3) of AM-83 policy can take within its ambit amendments to the policy made throughout the policy period was never argued. Hence this question also does not arise out of the order passed by this Tribunal. 12. As regards question E - Arguing on this question the learned Counsel submitted that a importer had a vested r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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