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TMI Blog2003 (9) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpretation on the Public Notice No. 235 I.T.C.(P.N.)/85-88, dated 11th December 1987. Facts : 3.The facts giving rise to the present petition are as under : The petitioners are exporters and importers inter alia carry on business of importing rough diamonds and exporting cut and polished diamonds in terms of the Import and Export Policy framed by the respondents from time to time. 4.Under the provisions of Import-Export Policy relevant for the period April 1985 to March 1988 ("AM-88 Policy" for short) the Imprest Licensing Scheme was conceived vide para-243 read with Appendix-13 thereof. In terms of para 3(ii) of Appendix-13 a registered exporter was eligible to apply for Imprest Licence either against a valid export contract or based on his annual average past export performance. The said scheme further provided that on issuance of Imprest Licence the items as set out therein could be imported subject to fulfilling the export obligation attached thereto. On such export obligation being discharged, the petitioners were to become eligible for REP licence of a fixed percentage. Under the said Policy in terms of para 12 thereof Imprest Licence was to be issued with obligat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n only entitle him to a minimum replenishment rate of 65% with reference to the rates specified in Appendix-17. In such case, the export obligation was to be determined with reference to the import replenishment entitlement of the corresponding export product in Appendix-17 while redeeming the export obligation imposed against such licence. Vide Para 3 of the said public notice a savings clause was introduced to the effect that in respect of export of cut and polished diamonds made against Imprest Licence issued prior to 6th November, 1987 the import replenishment rate shall be that which was applicable prior to the issuance of Public Notice No. 225 I.T.C.(P. N.)/85-88. 10.On 17th March, 1988, respondent No. 2 issued the balance Imprest Licence No. P/K/W/3217795, dated 17th March, 1988 in favour of the petitioners in response to the application already made by them for the balance amount of Rs. 52,73,260/- in respect of the Export Product Group P. 2.2 to P 2.6 with export obligation attached thereto in sum of Rs. 81,12,708/- being the second instalment. 11.With respect to the second instalment of the said imprest licence, the petitioners by their letter dated 3rd November, 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice bearing Nos. 225 I.T.C.(P.N.)/85-88 and 235 I.T.C.(P.N.)/85-88, dated 5th November 1987 and 11th December 1987 respectively. He, therefore, submits that the petitioners are governed by the policy as it stood prior to the issuance of public notice Nos. 225 I.T.C.(P.N.)/85-88 and 235 I.T.C.(P.N.)/85-88. The petitioners submit that their application not only related to a period prior to the issuance of the said two public notices but first instalment of the said licence was also issued in their favour prior to the issuance of the public notices. He submits that though the second instalment of the said licence was issued after the issuance of the second public notice, the same relates to the application made by the petitioners in June 1987, as such forms part of the licence issued to the petitioners in July 1987. The reliance was placed on the clarification made by the department itself vide its letter dated 19th March, 1988 (Exh. F) : wherein, while forwarding the second instalment of the licence it was mentioned in Para 4 (iv) as under : "It has been decided to issue you licence in two equal instalments. This is the 2nd instalment. You are requested to fulfilment of E/O should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,73,260/- came to be issued in respect of export of cut and polished diamonds showing the CIF value of Rs. 52,73,260/-. He further submits that the Ministry of Commerce, Government of India issued public notice in public interest being Public Notice No. 225 I.T.C.(P.N.)/85-88, dated 6th November 1987, which provided for amendment in the replenishment entitlement of cut and polished diamonds. He further contends that the public notice being a part and parcel of the import export policy, the moment such public notice is issued the same gets incorporated in the Exim policy as the fiscal policy requires adjustments from time to time depending upon economic developments of the country during that period. 20.Mr. Rana further pointed out that the petitioners have given legal undertaking in respect of licence dated 17th March, 1988 and, if at all, the petitioners felt aggrieved by the terms and conditions or grant of the said licence they ought to have either returned the said licence without utilising any part thereof or challenged the same in accordance with law. But having acted thereon, the petitioners cannot be allowed to contend contrary. He, thus, submits that it was obligatory o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued in two instalments. Accordingly, it appears that the licence came to be issued in two parts. The first part of the licence was for CIF value of Rs. 52,73,260/- with corresponding export obligation attached thereto of FOB value of Rs. 81,12,709/-. The said licence was issued on 1st July, 1987. The second part of the licence came to be issued on 17th March, 1988 for CIF value of Rs. 52,73,260/- with corresponding export attached thereto in the sum of Rs. 81,12,709/- (FOB value). It is thus clear that both licences or both parts thereof were for the same value, even though the public notices reducing rate of replenishment were in the field when second part or second licence was issued. 23.Therefore, it is clear from the intrinsic evidence available on record that while issuing second part of the licence or second licence as alleged by Revenue, the same was issued on the basis of the Import Export Policy which was prevailing prior to the issuance of the public notices dated 6th November, 1987 and 11th December, 1987. In spite of the fact that second part of the licence or second licence was issued subsequent to the issuance of the public notices i.e. on 17th March, 1988, the va ..... X X X X Extracts X X X X X X X X Extracts X X X X
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