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TMI Blog1989 (1) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... r paragraph 185(4) of the Import-Export Policy of 1982-83 (AM 1983). 2. Special leave, in both the petitions, is granted and the appeals taken up for final hearing, heard and disposed of by this common judgment. We have heard Shri Subba Rao, learned counsel for the appellants and Shri Salve learned counsel for the respondents who were the writ petitioners before the High Court. 3. M/s.' Suksha International, respondent in SLP 2579 of 1987, is a diamond exporter and is a registered Export House for the purposes of the Import-Export Policy. The said export house was granted an Imprest Licence No. 0451365 dated 15.6.1981 of a value of Rs. 1,53,80,000/- for import of 'uncut' and 'unset' diamonds with corresponding export obligations. Respondent claimed that upon the due fulfillment by it of its export-obligations it became entitled to revalidation and endorsement for import of OGL items of the imprest. Accordingly, on 3.9.1983 the said Export House applied under paragraph 185(4) of AM-83 policy, for such revalidation and endorsement of its imprest licence. Appellant No. 3 by his decision dated 21.9.1983, rejected this claim of the respondent. Aggrieved by this rejection, respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the writ petition was filed in April, 1985; and in WP 1813 of 1985 (from which SLP 2580 of 1987 arises) the rejection of the prayer was on 10.3.1984 and the writ petition was filed on 10.9.1985, after a lapse of one and a half years in each case. (c) that, at all events, the directions issued for OGL endorsement must be limited only to items as limited by the pronouncement of this Court in Rajprakash Chemicals Ltd. v. Union of India 1987 (30) E.L.T.45 (SC) = A.I.R. 1986 SC 1021 and D. Navinchandra & Co. v. Union of India 1987 (29) E.L.T. 492 (SC) = A.I.R. 1987 SC 1794 and other cases bearing on the question; and not in terms now directed by the High Court. 6. We may first dispose of contention (c) on which there does not appear to be much controversy. Shri Subba Rao submitted that the High Court was in clear error in brushing aside this argument and affirming the learned Single Judge on the basis that the S.L.P. filed by the appellants in Ripal Kumar & Co. 's case had been rejected by this Court. Shri Harish Salve, however, submitted that the decisions of this Court in Indo-Afghan Chamber of Commerce v. Union of India [A.I.R. 1986 SC 1567], Rajprakash Chemicals Ltd. v. Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em under this facility. (5) Export Houses who wish to take advantage of this facility of import of OGL item should get the licences concerned endorsed by the licensing authority as under :- "This licence will also be valid for import of OGL items under para 123 of Import-Export Policy, 1982-83, subject to the conditions laid down, and shall be non-transferable." (7) Import of OGL items by Export Houses under these provisions shall be subject to the condition, inter alia that the shipment of goods shall take place within the validity of the OGL i.e. 31st March, 1983 or within the validity period of the import licence itself (without any grace period), whichever date is earlier. This restriction will also apply to licences issued before 1.4.1982 in respect of items which continue to be on OGL in 1982-83 policy. (The restriction regarding grace period will not, however, apply in cases where shipment can be made within the permissible grace period on or before 31.3.1983). Appellants' contention is that clauses (4) and (7) of para 135 are part of an integrated policy-scheme, providing for certain incentives to export-houses and have to be read together and that the import of OGL ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng an exception to the generality of the provision in clause (7). Otherwise, says counsel, the resulting position would be that the satisfaction of the cumulative conditions in clauses (4) and (7) by an Export-House under an Imprest Licence would well high be impossible. This way of hormonising clauses (4) and (7) of para 185, it is submitted, has commended itself to the High Court in several other writ-petitions involving the interpretation of clauses (4) and (7) of paragraph 185 of the AM 1983 policy. Sri Salve submits that it is reasonable to exclude imprest licences from the requirement of clause (7). 9. We have considered the rival contentions on the point. Para 185[4] was intended to provide certain incentives to the Export Houses which, upon grant of Imprest-Licences, fulfill their countervailing obligations in the matter of export commitments. The provisions is a beneficial one. Clauses (4) and (7), no doubt, on their plain wording present certain constructional difficulties and the view sought to be put across by Shri Subba Rao for the appellants, on the plain language of clause (7), is not without possibilities. However, the basis of a harmonious construction which com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in both these cases by short orders in similar terms, relying upon an earlier decision dated 19/20th August, 1985, in Writ Petition No. 2477 of 1984. The relevant part of the order reads : "Relevant facts and circumstances of this petition are similar to the relevant facts and circumstances in Writ Petition No. 2477 of 1984 decided by this Court on 19/20th August, 1985. Besides, as in the said Writ Petition No. 2477 of 1984, in the present case also there is no such delay as to preclude the petitioners from the relief claimed. In all the circumstances and for reasons stated in Writ Petition No. 2477 of 1984 the following order is passed on this Writ Petition. 2. The petition succeeds and the same is allowed." Thereafter, the learned judge proceeded to issue specific directions. 11. Shri Subba Rao would say that the reference in the order by learned Single Judge to the contention on the point of delay as bar to relief had nothing to do with the specific contention of the appellants' that there was inordinate and unexplained delay in approaching the Court. This, learned counsel submits, would be clear, by a reference to the aspect of the delay dealt with and considered in WP 2477 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court, to decide this question without an opportunity to them to satisfy the Court as to the reasons, if any, for the delay and as to the sufficiency of such reasons. We assume that the plea had been taken before the High Court by the appellants as this submission of the learned counsel for the appellant was not controverted. We think it would be appropriate that the appellants' appeals before the High Court are remitted to the High Court for such consideration as the Appellate Bench may now bestow on this contention of the appellants. If the appellate bench is persuaded to view that the delay is satisfactorily explained it may proceed to confirm the orders of the learned Single Judge, subject, of course, to the question of permissibility of the importable items to be determined in the light of the pronouncements of this Court referred to at contention (c). If, on the contrary, the delay is held by the Division Bench to be such as to disentitle respondents to relief, the Division Bench may proceed to allow the appeals and dismiss the writ-petitions. All other controversies in the appeal shall be held to have been concluded in favour of the respondents. Accordingly, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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