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TMI Blog2004 (5) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... s, issued the letter of permission ("LOP") as provided in Clause 7 of Chapter 9 of the Exim Policy to the petitioner No. 1 for establishment of a new undertaking for the manufacture of reconstructed diesel engines for automotive use. (b) According to Exim Policy such 100% EOU are permitted under sub-clause (b) of Clause 9 of Chapter 9 to sell the goods within country which is called Domestic Tariff Area ("DTA"). (c) In accordance with the petitioners' export performance, the petitioner company is entitled to clearance and sale of 2171 pieces of reconstructed diesel engines in the DTA on payment of appropriate Customs duty thereon and accordingly, the petitioners applied to the Development Commissioner for permission to sell 1500 pieces of such reconstructed diesel engines in DTA. (d) By a letter dated September 24, 2001, the Development Commissioner granted permission to the petitioner for sale of 1500 pieces of reconstructed diesel engines in DTA in terms of Paragraph 9.9(b) of the Exim Policy read with Paragraph 9.24 and Appendix 42 of the Handbook of Procedures on terms and conditions mentioned therein. (e) In view of such permission granted by Developm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Letter of Permission dated December 12, 2000 to set up a 100% Export Oriented Unit ("EOU") for the manufacture of reconstructed diesel engines for automotive use. 100% EOU's are mandatorily obliged to export their entire production for which they enjoy several facilities under Export-cum-Import Policy as notified by the Central Government from time to time. Such facilities under Policy permit 100% EOUs to sell their goods or products up to 50% of the FOB value of exports subject to fulfilment of Net Foreign Exchange performance/obligations in the Domestic Tariff Area, i.e. within the country, subject to payment of all applicable Customs and Excise duties after compliance with all statutory obligations including obtaining the permission of the Development Commissioner of the concerned free Trade Zone/Special Economic Zone. (b) This facility of DTA sale is however, not available to units engaged in re-conditioning/repairing/remaking/re-engineering etc. as provided in Para 9.22 of 1997-2002 Policy and Para 6.17 of the current Policy. (c) In terms of Para 3.31 of the Policy "manufacture" means to make, produce, fabricate, assemble, process or bring into existence, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving acted in terms of such permission, the respondent authority could not cancel such permission without giving an opportunity of hearing. Mr. Pal further contends that even at the most, the respondent authority could pass order prescribing sale in DTA prospectively but by cancelling earlier permission could not take away the right of the petitioner which has accrued in their favour by virtue of export. Mr. Pal, thus, prays for setting aside the order of cancellation of permission dated September 22, 2003. Mr. Pal lastly contends that earlier direction of sale in DTA having been granted by Development Commissioner, such permission cannot be cancelled by Assistant Development Commissioner as it appears from Annexure P to the affidavit-in-opposition. He thus, prays for setting aside that order also on the ground of want of authority of the Assistant Development Commissioner. 5. The aforesaid contentions of Mr. Pal has been seriously disputed by Mr. Kapoor, the learned Additional Solicitor-General appearing on behalf of the respondents. 6. Mr. Kapoor contends that the petitioners are really engaged in reconditioning of old engines in the name of reconstruction only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but in such a case, it should be fair to give an opportunity of hearing to the petitioners to whom already a permission was granted for sale in DTA. 10. It is apparent from the record produced by Mr. Kapoor that in revoking earlier permission of sale, no further opportunity of hearing was given to the petitioner and no detailed reason was also given in the order. 11. According to the definition of licence indicated in Section 2(g) of Foreign Trade (Development and Regulation) Act, 1992, licence means a licence to import or export and includes a Customs clearance permit and any other permission issued or granted under this Act. According to Section 9(4), the Director General or the officer authorises under sub-section (2) of that section may subject to such condition as may be prescribed, for good and sufficient reasons to be recorded in writing suspend or cancel any licence granted under the Act. However, no such suspension or cancellation should be made except after giving the holder of the licence a reasonable opportunity of being heard. 12. In the instant case, it appears that before cancellation of permission which comes within the definition 'licence', ..... X X X X Extracts X X X X X X X X Extracts X X X X
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