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Ahmed Oomerbhoy (Exports) Pvt. Ltd. Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 1287/80
Judge
Reported in1989(42)ELT556(Del)
ActsConstitution of India - Article 226
AppellantAhmed Oomerbhoy (Exports) Pvt. Ltd.
RespondentUnion of India
Excerpt:
- .....licenses was rejected on the ground that the date of the mate receipt was to be treated as the date of export and the said date being 5-6-1976 while the policy of cash assistance on the export of onions was withdrawn w.e.f. 1-6-1976. 2. the case as set out in the petition is that the petitioners exported various quantities of onions through the third respondent which was the recognised canalising agency between the period april to june 1976. as far as the petitioners were concerned they had complied with all formalities pertaining to the said exports and were issued five authenticated copies of shipping bill bearing nos. 021021, 22, 25, 26 and 27 dated 22-5-1976. in respect of such exports bill of lading bearing no. ban-i dated 22-5-1976 was also issued evidencing the shipment of the.....
Judgment:
ORDER

N.N. Goswamy, J.

1. This petition under Article 226 of the Constitution of India is directed against the order dated 25-5-1978 passed by the second respondent and the subsequent appellate orders whereby the application of the petitioner-company for the grant of cash assistance and/or replenishment licenses was rejected on the ground that the date of the mate receipt was to be treated as the date of export and the said date being 5-6-1976 while the policy of cash assistance on the export of onions was withdrawn w.e.f. 1-6-1976.

2. The case as set out in the petition is that the petitioners exported various quantities of onions through the third respondent which was the recognised canalising agency between the period April to June 1976. As far as the petitioners were concerned they had complied with all formalities pertaining to the said exports and were issued five authenticated copies of shipping bill bearing Nos. 021021, 22, 25, 26 and 27 dated 22-5-1976. In respect of such exports bill of lading bearing No. BAN-I dated 22-5-1976 was also issued evidencing the shipment of the said goods on or before the said date. The petitioners in accordance with the provisions of the Import Trade Control Policy for the year April 1976 to March 1977 became entitled to the grant of cash assistance and the issue of import replenishment licenses from the respondent. On or about 25-8-1976, the petitioner made an application to the second respondent for the grant of import replenishment license and cash assistance. The petitioners made the application and filed the requisite documents as required by paragraphs 34, 35 and 36 of the said policy. By letter dated 4-3-1977 the second respondent intimated to the petitioners that the export documents namely the bank certificates, the invoice and the shipping bills were issued in the name of the third respondent and as such the application was not in order. Accordingly on or about 28-3-1977 the third respondent addressed a letter confirming that the goods had been exported by the petitioners through them as a canalising agency which was during the period April to June, 1976. The petitioners also submitted a fresh application on or around 29-3-1977 in the prescribed forms along with the bank certificates, bill of lading, shipping bills and invoices. The remaining documents as required by paragraphs 35 and 36 of the policy were already with the respondent which had been submitted along with the first application. By a letter dated ......... the Controller, Imports and Exports informed the petitioners that cash assistance on the export of onions was withdrawn w.e.f. 1-6-1976 and as such the petitioners were not entitled to the same since the date of the mate receipt was 5-6-1976.

3. Dissatisfied with the order of the second respondent the petitioners filed an appeal which was also dismissed. The second appeal filed by the petitioners met with the same fate. The petitioners also filed an application for review on or about 20-9-1979 to the Review Committee, the Ministry of Commerce, Civil supplies and Co-operation. The said petition for review, was rejected on the ground that the date of export could not be treated earlier than 5-6-1976.

4. The only point for consideration in the petition is whether the date of export has to be taken as 5-6-1976 which is the date of the mate receipt or 22-5-1976 which is the date of bill of lading. Paragraph 33 of the Import Trade Control Policy for the year April 1976 to March 1977 as it existed at the relevant time is as follows :-

'33. For the purpose of considering applications for import replenishment under the import policy of registered exporters, the relevant date of export will be determined as under :- (a) In the case of shipments by sea, the date of exports will be determined by the date on the relevant bill of lading which generally shows the date on which the goods have actually been loaded on the ship ..........'

5. The aforesaid provision was amended by a public notice issued on 14-1-1977. It was provided :-

'2. The provision contained in the existing para 33 Part E Section I of Red Book (volume II) for 1976-77 may be substituted by the following :-

33. For the purpose of considering the application for replenishment under the import policy for registered exporters, the relevant date of export will be determined as under :- (a) In the case of shipments by sea, the date of exports will be determined by the date on the relevant bill of lading or date of mate receipt whichever is later ...........'

6. Though the aforesaid public notice was issued on 14-1-1977 the respondents applied the same in the case of the petitioners and rejected the application of the petitioners on the ground that the date of bill of lading was 5-6-1976 while the policy of cash assistance on the export of onions was withdrawn w.e.f. 1-6-1976 and as such the petitioners were not entitled to the cash assistance or import replenishment licenses. The contention of the learned counsel for the petitioners is that the petitioner are governed by the provision as it existed on the relevant date i.e. 22-5-1976, the amending provision could not be treated as having any retrospective effect. As against that, the case of the department in the counter affidavit as also in the arguments is that the bill of lading necessarily follows the mate receipt and as such it had to be taken that the bill of lading was ante-dated and had been obtained fraudulently and could not be accepted by the respondents. However, this contention of the learned counsel for the respondent cannot be accepted for the simple reason that the application filed by the petitioner was not rejected on the ground that the bill of lading was a fraudulent document or the same had been ante-dated. It was rejected only on the ground that the matter had been considered by the Chief Controller of Imports & Exports and it had been decided that the mate receipt had to be treated as a date of export. This decision of the Chief Controller of Imports & Exports amounts to taking away the vested rights of the petitioners. It is an admitted fact that the petitioners would be entitled to the cash assistance and/or replenishment licenses if they had exported the onions before 1-6-1976. According to the policy as it existed at the relevant time, the relevant date for export was to be determined on the basis of the date on the bill of lading and not the the date of the mate receipt. The contention of the learned counsel for the respondent that the bill of lading had necessarily to follow the mate receipt also cannot be accepted because the same runs counter to the public notice issued on 14-1-1977 which also contemplates that the bill of lading can be earlier in point of time than the mate receipt. According to the Halsbury's Laws of England (IV Edition) Volume 43 paragraph 769, the carrier or the master or agent of the carrier is bound to issue the bill of lading to the shipper after receiving the goods into his charge. The said bill of lading issued in accordance with the provisions is prima facie evidence of the receipt by the carrier of the goods as described in it. It necessarily follows that the bill of lading can be issued even before actually putting the goods on board. Without there being any material on record, it is difficult for me to hold that a bill of lading cannot be issued till after the mate receipt is issued. In the circumstances, the petitioners are entitled to the benefit of provisions of paragraph 33(a) of the Import Trade Control Policy as it existed at the relevant time i.e. the date of export has to be determined in accordance with the date of the bill of lading and not the date of the mate receipt. It is, however, open to the respondents to consider the genuineness of the bill of lading and to find out whether the same was issued on the date shown therein or was ante-dated. In case the shipping documents and the bill of lading are found to be in order the petitioners are certainly entitled to the benefit of cash assistance and/or import replenishment licenses as provided in the policy.

7. For the reasons recorded above, the rule is made absolute and the impugned orders dated 25-5-1978, 22-2-1979, 29-8-1979 and the review order dated 26-12-1979 are hereby quashed. The respondent No. 2 will consider the application of the petitioners afresh in the light of the observations made above. The application should be decided by respondent No. 2 within six months from to-day. In the circumstances, there will be no order as to costs.


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