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TMI Blog1987 (8) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... m the date of revalidation the Petitioners' imprest licence and (ii) endorse the said licence to be valid for import of OGL items under paragraph 185 (excluding sub-para 7 thereof) of the AM'83 Policy except any items the import of which has been specifically banned under the current Policy. (iii) This licence will be non-transferable." 2. It appears that as against this Judgment, the respondents filed an appeal before the Divisional Bench. The Division Bench by its order, dated December 19, 1985 rejected the said appeal and confirmed the order as passed by the learned Single Judge. As against this the respondents preferred an S.L.P. which also has been dismissed. 3. Thereafter, the respondents had no choice but to make the endorsement. But instead of making the endorsement as directed by the learned Judge, the respondents made the endorsement as follows : "Items as per OGL of 1982-83 excluding items not permitted to Export Houses under the Import Policy for 1985-88 i.e. excluding items appearing in lists of Restricted items, Limited Permissible items and canalised items. The endorsement has been made in terms of para 185 of Import and Export Policy 1982-83 subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aps Pvt. Ltd.) - 1986 (26) E.L.T. 465 (S.C.) According to the aforesaid judgment the items of Appx. 2B, Appx. 3A and Appx. 5 are covered by the term "banned or specifically banned". In the present case the goods imported are appearing in Appx. 2B Sr. No. 50 of Am 85-88 policy and accordingly covered by the term 'specifically banned items are not allowed to import as per endorsement on the Licence, the said licence does not appear to be valid." 5. The Petitioners thereafter filed the present Petition on April 20, 1987 and the learned Judge while admitting the petition set out the scope of enquiry in the present petition as follows : "According to Mr. Bulchandani, learned Counsel for the respondents, the Supreme Court has interpreted the words "items the import of which has been specifically banned under the Current policy" and including inter alia, Restricted items under Appendix 2B of Import Policy for 1985-88. In fact, that is the reason why the respondents' endorsement was, however, considered as not in accordance with the orders passed in this particular case by Bharucha, J. In view thereof, some interim relief is required to be given to the petitioners pending a decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in the case of Raj Prakash Chemicals Ltd. v. Union of India, reported in A.I.R. 1986 S.C. 1021 = 1987 (30) E.L.T. 45. The argument restricting the scope of enquiry to the items which are banned in specie, was rejected by the Supreme Court. The Supreme Court took into account that the expression connoted something more than what was "banned". The Court took into account the fact that the right to import under the licence depends on the terms of the current Policy and, therefore, even though the item could not fall within the list of items which are specifically banned, still, if the item falls within the lists of restricted items or limited permissible items, the same cannot be imported. In other words, the import can only be as per the current Policy. The relevant portion wherein the scope of enquiry was enlarged reads, as follows : "To appreciate then what is intended by the words "specifically banned" it is necessary to have recourse also to the order made by Sawant, J. He directed that the Additional Licences were valid for the import of items permissible to Export Houses under such licence according to paragraph 176 of the Import Policy 1978-79 "excluding those items which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Item 121 of Appendix 2 Part-B for the purpose of importing dry fruits. As held by this Court in its judgment dated March 5, 1986, holders of Additional Licences are entitled to import only those goods which are included in Appendix 6 Part 2 List 8 of the Import Policy 1985-88. Dry fruits are not included in that List and therefore, they cannot be imported under Additional Licences." 7. In the case of Union of India v. M/s. Godrej Soaps Pvt. Ltd., reported in A.LR. 1987 S.C. 175 = 1986 (26) E.L.T. 465 (S.C.), the Supreme Court further clarified that in all such cases the items have to pass through two tests, firstly that the items should be importable under the earlier import Policy and secondly they should also be importable under the current Import Policy. Thereafter again on the same lines as set out in the earlier two judgments the Supreme Court observed in particular as follows : "In respect of Palm Kernel Fatty Acid which is a canalised item listed as Item 9(v) in Appendix V Part B of the Import Policy 1985-88, there is no provision in that Policy which permits the import of such item by an Export House holding an Additional Licence. Therefore, the claim of the diamon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces can be used for import of OGL items only after discharge of export obligation. He also pointed out that additional licences are granted in addition to all other types of licences like REP, impresser etc., whereas the imprest licences render the registered exporter ineligible for REP licences. He also submitted that additional licences are always subjected to the provisions of transitional arrangements whereas the imprest licences are not so subjected. 10. He drew my attention to paragraph 35(1) (2) of the current Import and Export Policy of AM 85-88. He pointed out that para 35(1) and (2) apply to only additional licences and REP licences but they do not apply to imprest licences. He submitted that under para 35(2) as a transitional arrangement REP licences and additional licences held by Export Houses/Trading Houses cease to be valid for import of any item which could be imported under OGL during the preceding licensing year or earlier but is no longer in this Import-Export Policy. He pointed out that imprest licences have been excluded from the scope of para 35(2). He submitted that it could be said that the respondents are objecting to import of these items mainly on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-83. Mr. Desai, therefore, submitted that the endorsement made on the imprest licence should have some meaning and therefore, the Petitioners should be allowed to import what is permitted under AM 82-83. He also submitted that there does not appear to be any OGL item which can be imported by virtue of any endorsement made on the imprest licence. He, therefore, submitted as if the ratio of Supreme Court is made applicable to the present case, the Petitioners would not be able to import anything and they would not have the benefit of the said endorsement and of the earlier policy of AM 82-83. 12. It is true that there is no provision under the current policy for import of OGL items pursuant to the endorsement made on the imprest licence. But still the question is as to what is the meaning of the words "specifically banned" as contemplated by Pratap, J. The Supreme Court might have dealt with cases which have all arisen in respect of additional licences. But in my view the principle is the same. It is not enough to say that the items are not "specifically banned". The importers must have a further right to import what is permitted under the Current Import Export Policy. The two tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be said that in the present case, the Court had already considered that the endorsement as sought to be made by the respondents relying on the Supreme Court Judgments has been rejected by this Court and that, therefore, it is not necessary again to rely on the Supreme Court Judgment to construe the meaning of the words "specifically banned". In other words, his submission is that as far as this question is concerned that stands concluded by virtue of the judgment of Bharucha, J. and that, therefore, that becomes binding on the respondents, leaving aside the larger question of interpretation of thesewords or whether this question would fall within the scope of para 35(1) and (2) of the Current Policy of AM 85-88. 14. I am afraid that cannot be the correct interpretation of the situation. It is true that the respondents were required to make the endorsement as directed by the learned Judge. The respondents in their wisdom thought that would not be a proper endorsement as according to them the Supreme Court had construed the meaning of the words "specifically banned" and therefore, they could add their own interpretation. I may mention that while making such an endorsement whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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