9911796707
TMI Blog1995 (3) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... n advance licence which would also mention the resultant produce in Part-E of Duty Exemption Entitlement Certificates Book (DEEC Book). The advance licence would also mention the export obligation in terms of FOB value of the export and condition sheet attached to licence mentions the export obligation in terms of quantity of unmanufactured tobacco. 3.Chapter XIX of the Policy Book deals with the duty exemption scheme. The object of the scheme is to make available to the registered exporters the necessary inputs needed for export production at international prices without payment of customs duty so as to make exports competitive in international market. Under paragraph 231 of the Scheme, an advance licence can be granted to registered exporters for import of duty-exempted materials in terms of the relevant customs notification for manufacture and export of resultant products or to replenish the materials which have gone into the production of the resultant produce already exported in anticipation of the grant of advance licence. Paragraph 239 requires an importer to execute a bond/legal undertaking which reads : "Before clearance of the 1st consignment of the import, the licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... boxes. CIF value was Rs. 54,00,000/. Quantity to be exported was 40,32,000 kgs. of unmanufactured tobacco. FOB value was Rs. 8,06,40,000/. But what was achieved by the petitioner was Rs. 30,40,13,000/. In terms of quantity, the petitioner had exported 38,61,489 kgs. of unmanufactured tobacco. However, the shortfall in terms of quantity of exports of unmanufactured tobacco was 2.3%. It is not disputed that in the above quantity even though there was a shortfall of 2.3% in the export of unmanufactured tobacco, the same was packed in all the 20160 numbers of corrugated fibre board boxes and that the same were exported. Application was filed for redemption of legal undertaking on 28-11-1991 and the no objection certificate issued by the customs authorities was submitted on 20-2-1992. The legal undertaking was redeemed on 11-6-1992. The petitioner then made an application on 20-7-1992 to the 1st respondent for entitlement certificate under special REP facility contained in paragraph 244 of the Policy Book. But, the impugned order was passed on 9-2-1993 stating "with reference to the above, you are hereby informed that your request for special REP entitlement certificate cannot be consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reason that having regard to the pecuniary value of the transaction, necessarily the 1st respondent had to forward the application for entitlement certificate under special REP facility to the 2nd respondent and it was at the behest of the 2nd respondent, the 1st respondent had passed the impugned orders and it is futile to contend that there was an effective alternative remedy available to the petitioner. Hence, I reject, this contention advanced on behalf of the respondents. 11.With regard to audi alteram partem rule, now it is too well established a law that whenever any order or action of the Government or authority, which is a State under Article 12 of the Constitution of India, results in civil consequences, not only audi alteram partem rule is applicable, but also the order which is passed should contain reasons. Undoubtedly, in these two cases, the impugned orders passed result in civil consequences as the plea of the petitioner for issuance of REP entitlement certificate enabling it to realise about Rs. 3.00 crores in both the cases is negatived and as such it has resulted in civil consequences and the 1st respondent was obligated to issue notice to the petitioner, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conditions attached to the Licence and ipso facto, the petitioner was entitled for REP certificate and non-grant of the same is quite arbitrary and illegal. In so far as W.P. No. 11848/93 is concerned, it is the contention of Mr. P. Chidambaram that even if the variation in the quantity of export is reckoned on the basis of the quantity packed in each of the 34,011 Nos. of corrugated fibre board boxes, it was less than 200 kgs. i.e. beyond the permissible variation limits of 5% minus in so far as only 13,944 corrugated fibre board boxes, while in the balance of 20,067 boxes, it was in excess of 200 kgs. but within the permissible limits of 5% plus and that it was highly unreasonable and arbitrary on the part of the respondents in rejecting REP entitlement certificate in toto and that at the most REP entitlement certificate may not be issued proportionate to the extent of 13,944 corrugated fibre board boxes, but entitling the petitioner to the balance on 20,067 of such boxes. Mr. P. Chidambaram, the learned counsel for the petitioner, cites a precedent as respondents themselves had earlier passed one such order in favour of the petitioner on 1-7-l988. Of course, this argument M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow why it was enacted or framed and the dominant purpose thereof. The dominant purpose was to give incentive to the exporters to make the Indian exports competitive in international markets. It is not the words employed in a condition attached to the licence "at the rate of 200 kgs. per box +/- 5%" which are to be taken literally in mechanical sense. Having regard to the object and intendment of the Scheme, it has to be understood that in each of the boxes, the approximate quantity should be 200 kgs., that no imported Corrugated Fibre Board Boxes should be retained by the importer and that all such boxes should be filled with unmanufactured tobacco and should be exported. In substance, it has to be understood only in such manner and not otherwise. Overall, what is to be seen is that no importer should be allowed to take undue advantage of the exemption or misuse or abuse the same and insofar as this Scheme is concerned, that is fully achieved if caution is taken (a) that all Corrugated Fibre Board Boxes are filled with unmanufactured tobacco regardless of variable quantities therein; (b) that the export obligation in terms of quantity of unmanufactured tobacco should be achieved re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
