Skip to content


ittefaq Trading Co. Vs. Govt. of India, Ministry of Commerce - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1699 of 1982
Judge
Reported in1989(40)ELT44(Bom)
Appellantittefaq Trading Co.
RespondentGovt. of India, Ministry of Commerce
Excerpt:
customs - replenishment licence - petitioners registered exporters of processed vegetables and fruits - application made by petitioners for grant of replenishment licences and cash assistance in respect of exports - respondent forwarded replenishment licences of value 2% instead of 5% and cash assistance not given - petition against such decision of respondents - petitioners complied with requirement of import policy - petitioners entitled to cash assistance as well as replenishment licence to extent of 5% under export policy - held, respondents directed to issue replenishment licence and cash assistance to petitioners. - - 1. the petitioners are registered exporters of processed for like fruits, vegetables, meat etc......rep licence to the extent of 5% of the fob value in respect of the export contracts and also for cash assistance of 15% in respect of fruits and vegetables and 10% on respect of export of meat. paragraph 16 of part 'b' of section i of the import policy, inter alia, prescribes that in case of registered export contracts, the crucial date for determining the percentage of replenishment will be the date of the contract.2. in accordance with the import policy, the petitioners exported the goods between january and march 1979 of fob value of rs. 25,84,674/-. in respect of this export, the petitioners applied for grant of replenishment and the cash assistance and it is not in dispute that the respondents granted the licence and cash assistance as prescribed by scheme.the petitioners between.....
Judgment:

1. The petitioners are registered exporters of processed for like fruits, vegetables, meat etc. The petitioners had entered into contract dated March 23, 1978 with the overseas buyers M/s. Khamas Meat House, Dubai for supply of vegetables, fruits and meat. The contract was duly registered in accordance with 'the Import Trade Control Policy for Registered Exporters April 1977 - March 1978'. The Policy, inter alia, prescribes that the registered exporters would be entitled to REP licence to the extent of 5% of the FOB value in respect of the export contracts and also for cash assistance of 15% in respect of fruits and vegetables and 10% on respect of export of meat. Paragraph 16 of Part 'B' of Section I of the Import Policy, inter alia, prescribes that in case of registered export contracts, the crucial date for determining the percentage of replenishment will be the date of the contract.

2. In accordance with the Import Policy, the petitioners exported the goods between January and March 1979 of FOB value of Rs. 25,84,674/-. In respect of this export, the petitioners applied for grant of replenishment and the cash assistance and it is not in dispute that the respondents granted the licence and cash assistance as prescribed by Scheme.

The petitioners between April and June 1977 exported goods of FOB value of Rs. 40,66,265/-. Between the months of July and September 1979 export was of the value of Rs. 24,40,687.50, and between the months of October to December 1979 the goods exported were of the value of Rs. 12,98,225/-. In respect of the exports effected by the petitioners for these three periods, applications were made for grant for replenishment licences and cash assistance. The respondents forwarded the replenishment licences of a value of mere 2% instead of 5%. The cash assistance was not given in respect of all three periods. The petitioners thereupon filed claim before the respondents on November 3, 1980 claiming replenishment licences of the value of 5% and also for the cash assistance. The applications were turned down by the respondents and appeals and review applications filed by the petitioners also ended in dismissal, and that has given rise to filing of the present petition.

3. Shri Ramamurthy, learned counsel appearing on behalf of the petitioners, submitted that the action of the respondents in denying the benefit of replenishment licences of the value of 5% of the F.O.B. value and grant of cash assistance as prescribed by the Import Policy under the Scheme is entirely unsustainable. The submission of the learned counsel is correct and deserves acceptance. Paragraph 46 of Part B of Section I of the 'Import Control Policy April 1977 - March 1978' prescribes that once a contract has been registered, the registered exporter will be eligible for claiming import replenishment at the same percentage and for the import of same items as were prevailing on the date of the firm contract, provided that the bank's attested invoice which is required to be produced for the purpose of claiming import replenishment bears a further attestation from the bank to the effect that the export effected under the said invoice is against the registered contract, quoting registration number and date thereof. It is not in dispute that the petitioners have complied with the requirement of this paragraph of the Import Policy. Shri Ramamurthy invited my attention to the Public Notice issued by the Government of India, Ministry of Commerce on January 5, 1981. The Government of India had decided that in case of contracts entered into during the period from April 1, 1977 to March 31, 1978 or earlier and registered in accordance with the prescribed procedures, the benefits of registration under the scheme would be available only in those cases wherein export in execution of the relevant contracts are made during the delivery schedule as per the contract or upto 30th June 1981, whichever date is earlier, provided such benefits are otherwise admissible in terms of the import policy. Shri Ramamurthy is right in his submission that this Public Notice clinches the issue in favour of the petitioners and the action of the respondents in depriving the petitioners of the replenishment licence of the value of 5% of the FOB value and the cash assistance as prescribed under the scheme was wholly erroneous.

4. Shri Bulchandani, learned counsel appearing on behalf of the respondents, submitted that though the Import Policy of the year 1977-78 provided for grant of replenishment licence of 5% of the FOB value, the subsequent policies reduced the grant of replenishment licence to the extent of 2% of the FOB value. The learned counsel urged that in accordance with the subsequent policies, the respondents had forwarded the replenishment licence to the petitioners. The action of the respondents cannot be sustained in view of the Public Notice dated January 5, 1981 issued by the Government of India. Whatever might have been provided by the subsequent Import Policy, it cannot affect at the right of the petitioners as the exports were affected prior to June 30, 1981, and in accordance with the delivery schedule of the contract.

5. Shri Bulchandani then submitted that the petitioners by two letters, both dated March 26, 1980, had given up the claim for the cash assistance. It is not possible to accept the submission of the learned counsel, because there is obviously a typographical error in the letter and the word 'submitted' has been typed instead of the word 'admitted'. The contention of Shri Bulchandani that the petitioners have given up their claim for cash assistance cannot be accepted because it is unlikely that any exporter would give up the advantage provided under the policy or scheme by the Government of India. The explanation offered by the petitioners that there was a typographical error deserves acceptance.

6. Shri Bulchandani then submitted that the petitioners had informed the respondents that they would not claim cash assistance in respect of export of Ginger, as there was some dispute as to whether ginger falls within the expression 'vegetable'. Shri Ramamurthy states that the petitioners are not pressing the claim for grant of replenishment licence or cash assistance in respect of export of Ginger and the value thereof. Accordingly, the petitioners would be entitled to replenishment licence to the extent of 5% of the FOB value in respect of export of fruits, vegetables and meat effected between the period April 1979 to December 1979.

The petitioners would also be entitled to the cash assistance in respect of this export and in respect of which 15 invoices were tendered before the respondents and the details of which are set out at Exhibits 'S' and 'T' to the petition. The respondents are directed to ascertain the exact amount of cash assistance payable to the petitioners and pay the said amount within a period of two months from to-day. The respondents are also directed to issue the replenishment licences with a period of two months from to-day.

7. Accordingly, rule is made absolute and the respondents are directed to issue REP licences and the cash assistance to the petitioners within a period of two months from to-day. The replenishment licence and the cash assistance would be issued in accordance with the directions given hereinabove.

8. The respondents shall pay the costs of petitioners.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //