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TMI Blog1983 (7) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... be with regard to the materials mentioned in the (REP) Licence and not any other material and that the contention of the first respondent, the Union of India that the endorsement could only be against the export by the applicant himself is correct. 2. The appellants have filed the Writ Petition No. 802 of 1982 under Article 32 of the Constitution against the same three respondents and for the same reliefs prayed for in the Civil Appeal, viz. (1) quashing the Circular dated 31.8.1981 issued by the Joint Chief Controller of Imports and Exports, New Delhi as being ultra vires and null and void, (2) directing withdrawal of the order dated 7.12.1981 of the third respondent, the Deputy Chief Controller of Imports and Exports, Amritsar, refusing to make the endorsement on the (REP) Licence, (3) issuing a direction to respondents 2 and 3 to make the endorsement contemplated in paragraph 138 of the Import Policy 1981-82 on the (REP) Licence and (4) restraining respondents 2 and 3 from implementing the Circular dated 31.8.1981 and the order dated 7.12.1981. 3. The parties will be referred to in the Civil Appeal as arrayed in the Writ Petition before the High Court for the sake of conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he should himself be a Registered Exporter and should satisfy the Custom Authorities of his bona fides at the time of clearance of the goods in regard to the facilities provided in paragraphs 136(2), 137 and 146 of the Import Policy, 1981-82. The first petitioner is a manufacturer-exporter holding a valid Registration Certificate No. FIED/TD-E3(153)/78-132 dated 21.7 1978 and was keen to Import under the (REP) Licence acquired by transfer on 8.7.1981 raw materials, components, consumables and packing materials required for use in its factories in terms of Paragraph 138(1) of the Import Policy, 1981-82 which reads as under: REP Licence issued to manufacturer-exporters will be valid for import of any other items of raw materials components, consumables and packing materials required by them for use in their factories. However, import of banned items will be allowed only upto 20% of the face value of the REP Licence subject to the condition that the value of 'single' item should not exceed ₹ 1 lakh. REP Licences issued to manufacturer-exporters, who want to avail of this facility will be issued with an 'Actual User' condition and such licences will not be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon to withdraw the decision contained in his letter dated 15.10.1981 and to make the necessary endorsement under paragraph 138 of the Import Policy, 1981-82 on the (REP) Licence mentioned above The Writ Petition was dismissed by the High Court in limine. 9. The respondents have filed a counter-affidavit for meeting the averments made in the special leave petition. They have admitted that (REP) Licences issued on exports made on or after 1.4.1978 are not subject to 'Actual User' condition and are freely transferable to any person without any necessity for endorsement or permission from the Licensing authority except for certain cases as provided in paragraph 140 of the Import Policy, 1981-82. The facility was extended to manufacturer-exporters and manufacturers who exported their goods through others by permitting them to utilise the import replenishment (REP) licence accruing to them on the export of the products manufactured by them for importing not only the items utilised by them in the products exported but also other items of raw materials, components, consumables and packing materials required by them for use in their factories. But it is evident from paragraph 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. As the same reliefs which are sought in the Civil Appeal are sought even in the Writ Petition also it is not necessary to refer to the petitioners' contentions raised in the Writ Petition and those raised by the respondents in the counter-affidavit filed by them in this judgment. Our findings in the Civil Appeal will suffice to dispose of the Writ Petition one way or the other. 13. The first petitioner was originally a Registered Export House within the meaning of paragraph 5(7) of the Import Policy, 1981-82 and has been a manufacturer-exporter since 1971. It has become a recognised Trading House as its Export House Certificate has been converted into a Trading House Certificate in terms of paragraph 195(1) of the Import Policy, 1981-82. Recognised Trading Houses are entitled to certain facilities under paragraph 195(4), and one of them mentioned in paragraph 195(4)(ii) is import replenishment (REP) Licences transferred to them by others. The import replenishment (REP) licence mentioned above was issued to a manufacturer-exporter against his actual export. The first petitioner got that licence transferred to it by a letter dated 8.7.1981 as provided for in paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question is which of these contentions is correct. 15. Paragraph 140 clearly states that (REP) Licence will be issued in the name of the Registered Exporter only and will not be subject to 'Actual User' condition and that except for cases covered by paragraphs 136(2), 185(2) and 186(1) the licence holder may transfer the licence in full or in part in favour of any other person and that the licence holder or such transferee may import the goods permitted therein but the facility of paragraphs 136, 137 and 146 shall not be available to any transferee unless the transferee is himself a Registered Exporter and can satisfy the Custom Authorities at the time of clearance of the goods of his bonafides. The goods sought to be imported by the first petitioner on the basis of the (REP) Licence in question do not fall under paragraphs 136(2), 137, 146, 185(2) and 186(1) mentioned in paragraph 140 of the Import Policy, 1981-82. Paragraph 195(4)(ii) grants to Trading Houses like the first petitioner the facilities under Import Policy, viz., the import replenishment (REP) Licences transferred to them by others. Thus the first petitioner is entitled under paragraphs 140 and 195(4)(ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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