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TMI Blog1986 (5) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by them either locally or through imports from outside India. The respondents, M/s Rajnikant Brothers and M/s Everest Gems, are diamond exporters who have been issued additional licences pursuant to an order of the Court in the following circumstances. The respondents diamond exporters had applied for the grant of Export House Certificates under the Import Policy 1978-79 and had been denied the Certificates on the erroneous ground that they had not diversified their exports. In writ petitions filed in the Bombay High Court, they were held entitled to the Export House Certificates. Special leave petitions filed by the Union of India against the order of the High Court were dismissed by this Court by its order dated April 18, 1985 which, while confirming the order of the High Court directed the appellants to issue the necessary Export House Certificates for the year 1978-79, and further that: "Save and except items which are specificially banned under the prevalent Import Policy at the time of import, the respondents shall be entitled to import all other items whether canalised or otherwise in accordance with the relevant rules." The respondents diamond exporters and other like d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond exporters and other like diamond exporters began to import dry fruit under their Additional Licences. It is contended that having regard to the terms of the order of this Court dated April 18, 1985 as construed and clarified by its order dated March 5, 1986 the diamond exporters are not entitled to import dry fruit. By order dated March 5, 1986 the Court construed its order dated April 18, 1985 to mean that only such items could be imported by diamond exporters under the Additional Licences granted to them as could have been imported under the Import Policy 1978-79, the period during which the diamond exporters had applied for Export House Certificates and had been wrongfully refused, and were also importable under the Import Policy prevailing at the time of import, which in the present case is the Import Policy 1985-88. These were the items which had not been "specifically banned" under the prevalent Import Policy. The items had to pass through two tests. They should have been importable under the Import Policy 1978-79. They should also have been importable under the Import Policy 1985-88 in terms of the order dated April 18, 1985. The case of the petitioners is that under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this Court by its judgment dated March 5, 1986. The position in regard to the import of dry fruits (excluding cashewnuts) is simple and suffers from no complexity. As has been mentioned, dry fruits (excluding cashewnuts) could be imported by all persons under the Open General Licence under the Import Policy 1978-79. But under the Import Policy 1985-88, when the dry fruits (excluding cashewnuts and dates) are now sought to be imported, dry fruits (excluding cashewnuts and dates) are no longer open to import under the Open General Licence. The sanction for importing them must be found under some other provision of the Import Policy. If dry fruits (excluding cashewnuts and dates) are regarded as items for stock and sale, the import is governed by paragraph 181(3) in Chapter XIII of the Import Policy 1985-88. Paragraph 181(3) declares that import of dry fruits (excluding cashwenuts and dates) will be allowed against licences issued to dealers engaged in this trade, the value of the import licence in each case being equal to 20 per cent of the C.I.F. value of the best year's imports of the applicant in respect of dry fruits (excluding cashewnuts and dates) during any of financial yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art-B cannot refer to dry fruits imported for supply to Actual Users (Industrial). In construing the order dated April 18, 1985 of this Court, the judgment dated March 5, 1986 of this Court explained the singificance of the words "specifically banned" occurring in the former order. The expression determines the range of the items open to import by diamond exporters holding Additional Licences. It was declared that the items exluded from import by diamond exporters under Additional Licences under the Import Policy 1985-88 were the items enumerated in Appendix 3 and Appendix 2 Part-A of that Import Policy. Appendix 2 Part-A is the successor of Appendix 4 (List of Absolutely Banned Items) of Import Policy 1978-79. A question arose before us whether Appendix 2 Part B of Import Policy 1985-88 could also be regarded as a successor of Appendix 4. It appears from the material placed before us that Appendix 2 Part B (List of Restricted Items) was also successor of Appendix 4 (List of Absolutely Banned Items). Appendix 4 in the Import Policy 1978-79 was described as the Absolutely Banned List. In the Import Policy 1982-83, the same Appendix 4 is described as List of Non-Permissible Items (B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities or by the Import Control authorities against the interim order dated January 8, 1986 of the Bombay High Court directing the Customs authorties to permit M/s Everest Gems to clear the imported consignment of almonds. We do not think that an interim order can defeat the fundamental rights of the petitioners merely because it has not been questioned by the Customs authorities or the Import Control authorities. The writ petition is allowed and the respondents Nos. 10 and 11, M/s Rajni Kant Brothers and M/s Everest Gems are restrained from importing dry fruits during the period 1985- 88 under the Additional Licences granted to them under the Import Policy 1978-79. In the circumstances there is no order as to costs. Civil Appeal No. 664 of 1986 is directed against the judgment and order of the Bombay High Court rejecting the appellants' writ petition challenging the import of dry fruits by the respondent, M/s Everest Gems under Additional Licences granted under the Import Policy 1978-79. The questions raised in this appeal are identical with those raised in the writ petition disposed of earlier. In the result this appeal is allowed, the judgment and order dated January 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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