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TMI Blog2022 (11) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... n the list of ineligible items, the appellant has been denied the benefit of additional licence. At this stage, it is required to be noted that under the Exim Policy, the benefit of additional licence which as such was in the form of an incentive is available on actual export in the preceding year and the benefit of such export for the purpose of additional licence to the FOB value shall be available in the next year. Under the Exim Policy, the benefit of additional licence shall be available only on actual export in the previous year and that too to eligible items only - in the absence of any challenge to the new Exim Policy 1990-93 under which on export of Minerals and Iron Ore , there shall not be the benefit of additional licence, the new Exim Policy 1990-93 shall be applicable. The appellant is claiming the benefit of additional licence under the Exim Policy 1988-91 on the ground of promissory estoppel. However, when the new Exim Policy 1990-93 is held to be applicable under which on export of Minerals and Iron Ore , there shall not be any benefit of additional licence, the appellant cannot be permitted to claim the benefit of additional licence under the old Exim Poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Sr. Adv. Mr. H.R. Rao, Adv. Mr. Udai Khanna, Adv. JUDGMENT M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 26.06.2008 passed by the High Court of Judicature of Bombay at Goa in Writ Petition No. 286/1996, by which the Division Bench of the High Court has dismissed the said writ petition by holding that the appellant shall not be entitled to the benefit of additional licence on the export of processed iron ore during the period April, 1990 to March, 1991, the exporter has preferred the present appeal. 2. The facts leading to the present appeal in a nutshell are as under: That the appellant is engaged inter alia in the export of processed iron ore and is a recognised trading house. Under the Indian Foreign Trade Policy (hereinafter referred to as the Exim Policy ) 1988-1991, there was a provision of additional licence and a trading house would be eligible to additional licence on the basis of the admissible exports in the preceding licensing year. Para 212 of the Exim Policy, 1988-1991 provided that in considering the eligibility of an exporter for recognition as a trading house based on Net Foreign Exchange (N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Foreign Trade, which was rejected on 2.9.1993. The appellant preferred a second appeal before the Additional Director General of Foreign Trade. The Additional Director General of Foreign Trade by order dated 05.10.1994 rejected the second appeal for the reason that the application for additional licence was time barred. In the writ petition filed by the appellant, by order dated 13.09.1995, the High Court remitted the matter to the Additional Director General of Foreign Trade to consider the question of the appellant s eligibility for additional licence or in lieu thereof the appellant is entitled to 20% premium. After remand, the second appellate authority again dismissed the appeal on the ground that the application filed by the appellant for grant of additional licence was barred by limitation. 2.4 Aggrieved by the decision of the second appellate authority, the appellant filed a writ petition before the High Court being Writ Petition No. 286/1996. The High Court, by judgment and order dated 30.01.2001, allowed the said writ petition and quashed and set aside the order of the Additional Director General of Foreign Trade dated 12.01.1996 denying the benefit of additional lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of processed iron ore in the preceding years. 3.2 It is submitted that the appellant acted upon the Exim Policy 1988- 91 and incurred commercial and financial commitments severely altering its position to its serious detriment. The appellant exported the processed iron ore in the year 1989-91. 3.3 It is submitted that as per the decision of this Court in the case of Union of India Others v. Chowgule Co. Ltd. and Others, (2003) 2 SCC 641, the appellant was entitled to grant of additional licence, vis- vis, the export of processed iron ore made during the year 1989-90. It is submitted that however when the appellant was engaged in making export of processed iron ore in the subsequent year, there was a change in the policy before the expiry of period of three years during which 1988-91 policy was solemnly declared to remain in force and the same came to be substituted by Exim Policy 1990-93. It is submitted that under the changed Exim Policy, in Appendix 12, Minerals and Ores are now declared ineligible inter alia for the purpose of additional licence. It is submitted that however as the appellant had already acted upon the Exim Policy 1988-91 and on 7.2.1990, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that under the Exim Policy 1990-93, as per Appendix 12, processed iron ore was in the excluded category and in the category of ineligible items. It is submitted that as per the Exim Policy, the additional licences were available only on export in the preceding years of eligible items. 4.1 Now so far as the submission on behalf of the appellant on promissory estoppel is concerned, it is submitted that the benefit of additional licence was in the form of an incentive and the same cannot be claimed as a matter of right. It is submitted that being a policy decision, it is always open to the Department/DGFT to come out with a modified/fresh/new Exim Policy. It is submitted that therefore the principle of promissory estoppel shall not be applicable at all, more particularly when the incentive is withdrawn in the subsequent/new policy. It is submitted that therefore as rightly observed by the High Court, where the appellant is found to be ineligible to get the benefit of additional licence on the export made during the new Exim Policy, 1990- 93, the appellant shall not be entitled to the benefit of additional licence. 4.2 Now so far as the submission on behalf of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iron ore , i.e., during the period between April, 1990 to March, 1991, the Minerals and Iron Ore as per Appendix 12 were in the list of ineligible items, the appellant is rightly denied the benefit of additional licence. At this stage, it is required to be noted that the appellant had never challenged the new Exim Policy 1990-93. Therefore, in the absence of any challenge to the new Exim Policy 1990-93 under which on export of Minerals and Iron Ore , there shall not be the benefit of additional licence, the new Exim Policy 1990-93 shall be applicable. 6. The appellant is claiming the benefit of additional licence under the Exim Policy 1988-91 on the ground of promissory estoppel. However, when the new Exim Policy 1990-93 is held to be applicable under which on export of Minerals and Iron Ore , there shall not be any benefit of additional licence, the appellant cannot be permitted to claim the benefit of additional licence under the old Exim Policy, which was not in existence. 7. Now so far as the submission on behalf of the appellant on doctrine of promissory estoppel is concerned, it is required to be noted that the benefit of additional licence was in the form of an inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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