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TMI Blog2011 (12) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... hild National Champion of India of Equestrian Sports. The petitioner has placed on record certificates of various awards won by him in Equestrian Championships held in India. The case of the petitioner is that to build his career in the said sport, the petitioner intended to import three sport horses. The petitioner approached the DGFT for grant of import license. The petitioner was, accordingly, granted an import license dated 25.11.2008 for import of three horses of CIF/FOB value in Rs.3,12,280/-. The import license described the name of the item as "3 Nos. of Horse (Hanoverian) from Australia subject to fulfillment of the conditions laid down in D/C AHD&F Notification No. 522(E) dt. 24.7.2002 and fulfillment of quarantine regulations in force and subject to actual user condition besides other applicable conditions of import licence". The import license was valid for a period of twenty four months. (emphasis supplied) 3. It appears that the petitioner imported three horses from Germany/Austria on 08.09.2010 at New Delhi Airport. These horses arrived in India on 08.09.2010 and remained in Isolation Animal Shed at Indira Gandhi International (IGI) Airport till 28.12.2010 without s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quarantine under the orders of the Court, and merely because they were in perfect health, would not come to the aid of the petitioner since the essential conditions of the license are not satisfied. 6. The petitioner preferred a Letters Patent Appeal (LPA) against the judgment of the learned Single-Judge, which was registered as LPA No. 851/2010. It appears that, after some arguments, the petitioner withdrew the said appeal to approach the licensing authority for amendment of the license. Consequently, the said appeal was dismissed as withdrawn on the said statement of the petitioner through his counsel on 03.12.2010. 7. Immediately after the withdrawing of the LPA No. 851/2010, on 04.12.2010 itself the petitioner applied for amendment of the import license. The petitioner sought amendment of the license to include the place of origin as Austria and sought urgent action on the ground that the horses are suffering cruelty, standing in confinement at the Animal Shed of the Cargo Terminal of the IGI Airport, Delhi. However, no action was taken on the petitioner's application for amendment of import license. Vide letter dated 29.12.2010, the petitioner sent a reminder. Since the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the order dated 08.10.2010 passed by this Court in the petitioner's earlier writ petition. During these proceedings, the Court was informed that the three horses in question could not be re-exported to their country of origin, namely Austria/Germany, as export of horses from India to Europe had been banned. Vide an order dated 24.12.2010, the Court directed that the horses in question be shifted from the custody of CELEBI to the Quarantine Station under the control of the Quarantine Officer. 10. The petitioner preferred an appeal before the Commissioner of Customs (Appeals) to assail the adjudication order dated 27.10.2010, as aforesaid. The said appeal was disposed of by the Commissioner of Customs (Appeals) vide his order dated 29.04.2011, i.e. during the pendency of this petition and the appellate order has been brought on record by the petitioner. The Commissioner of Customs (Appeals) has directed the adjudicating authority to explore the possibility whether the said horses can be released for home consumption in the event the same cannot be re-exported, as claimed by the appellants, and, accordingly, release the imported horses for home consumption on payment of fine and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Austria/Germany is not banned as there are any number of instances where horses have been imported from these countries. The petitioner has placed on record the documents to show that import of horses has been allowed to various persons from Germany, Denmark and Australia. 14. Learned counsel submits that the import license issued to the petitioner, though mentions the place of origin of the horses as Australia, it also mentioned "all countries excluding Iraq". The submission of learned counsel for the petitioner is that the import of horses is, therefore, permitted from all countries excluding Iraq, and the mere mention of Australia as the place of origin of the horses has to be read in conjunction with the notation "all countries excluding Iraq". 15. Learned counsel for the petitioner has also drawn my attention to the order dated 21.03.2011 passed in W.P.(C.) No.7998/2010 preferred by CELEBI. By this order, the Court had, inter alia, directed that the horses in question be tested for re-export by drawing blood samples. For this purpose, a scientist from the National Research Centre on Equines, Hissar was required to be called to be present when the blood samples are drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be negative for CEM. 19. The petitioner also submits that the Embassy of India had floated a notice inviting tender addressed to various European Union countries for procuring 400 mountain artillery mule breeding brood mares, 4 horses stallions and 10 donkey stallions in the year 2007. According to the petitioner, horses from Austria were then imported on the recommendation of respondent no.2 by Major J.S. Ahluwalia and M/s. Sapphire Realtors in January 2010. The averments in this regard is made in para 23 of the writ petition. I may note that in their counter-affidavit, the respondents do not deny this averment of the petitioner. On the contrary, there is an admission of the fact that horses and mules from Austria/Germany have indeed been imported by the Indian Army. 20. Learned counsel for the petitioner submits that the Commissioner of Customs (Appeals) has taken a pragmatic and legal view of the matter in the light of the fact that the re-export of the horses in question to Europe is banned. The horses in question are not contraband articles. It is not that their import from Germany/Austria is completely banned. If at all, there is a technical error, and that too only if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a couple of islands in France. 23. In his rejoinder, learned counsel for the petitioner submits that the petitioner is not obliged to re-export the horses in question, much less to some remote islands in France. The petitioner does not know any importer of horses on those islands and it is not possible for the petitioner to do so. 24. Reliance placed by the petitioner on clause 2.12.2 readwith 9.11A of the handbook of procedure to contend that the import license shall be reckoned as valid for a period of two years, not from the date of its issue, but from the date of the relevant airway bill, which represents the date on which the goods left the last airport in the country from which the import is effected, cannot be accepted. The import license itself bears the date of its issue, and states the period of shipment as 24 months. The shipment under the said import license could, therefore, have been made only within 24 months. The purport of clause 2.12.2 readwith clause 9.11A is only to say that the import made under an import license shall be construed as valid with reference to the date of shipment/despatch of goods from the supplying country as given in clause 9.11A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has been issued, in section 9(2) provides that the Director General or an officer authorized by him may, on an application and after making such enquiry as he may think fit, grant or renew or refuse to grant or renew a license of import or export, after recording in writing his reasons for such refusal. Consequently, the power to renew an import license is clearly vested in the Director General or an officer authorized by him. 29. As noted above, clause 2.13 of the Handbook of Procedure Vol.I framed by the DGFT provided for revalidation of the import authorization on merits for six months from the date of expiry of its validity. Clause 9.3 of the said handbook provides that wherever any application is received after expiry of last date for submission of such application, the application may be considered after imposing "late cut" in the manner provided in the said provision. It would be seen that applications which are received upto two years late from the prescribed date of submission can be entertained by imposing a "late cut" of 10 percent. 30. I may also make a reference to Foreign Trade Policy, 2009-2014 framed by the Central Govt. under section 5 of the Foreign Trade ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven file a writ petition before this court, before the respondents chose to issue the impugned communication dated 20.01.2011. Even on the date on which the impugned communication was issued, the period of six months from the date of the expiry of initial import license was not over. The reason for which the amendment of the import license was rejected is completely untenable. The petitioner is entitled to issuance of a fresh import license in respect of the horses in question even today, as provided for in clause 2.26 of the Foreign Trade Policy, 2009-2014. 34. The view taken by the Commissioner of Customs (Appeals), in my view, is a fair and pragmatic view. If the petitioner were not to pursue the case any further, what would the respondents do? Would they destroy these horses which have been imported by spending valuable foreign exchange running into lakhs of rupees, even though they appear to be perfectly healthy. 35. It should always be present to the mind of the respondents that procedures are evolved only in aid of, and to implement the substantive rights and obligations of parties. The procedural requirements cannot become an excuse to deny the substantive rights of a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that they need regular and proper care and exercise. With the passage of each day, their potential to render service in equestrian sports would diminish. I, therefore, direct the respondents to release the said horses to the petitioner at the earliest, subject to the following conditions: i) The horses being subjected to tests and satisfying the conditions and tests prescribed in para-4 of the notification dated 07.05.2010. For this purpose, if not already done, the tests be conducted by the National Research Centre on Equines, the costs whereof shall be borne by the petitioner. ii) The petitioner paying the customs duty, fine and penalty imposed upon the petitioner; iii) The petitioner paying the entire quarantine charges upto the date of taking of delivery; iv) The petitioner paying the charges towards revalidation of the import license and towards amendment thereof to include Austria/Germany as the countries of origin of the horses, and towards medical examination of the horses earlier as well. The amount already paid by the petitioner shall be given credit. 40. The respondents shall communicate the charges, not already communicated, positively within three days hereof. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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