Echbee Corporation vs Union of India

This petition has been filed by Sole Proprietor of Echbee Corporation and the petitioner appeared in person and has raised four contentions as set out in paragraph 7 of the petition. The petition was filed on January 30, 1990 and was admitted by Justice Kurdukar on February 21, 1990 and was directed to be peremptorily heard on April 2, 1990. The petition was placed for hearing before Justice Kotwal and was adjourned from time to time for one or the other reason. On the re-opening of the Court, the petition was posted before Shri Justice Kantharia on June 8, 1990. The learned Judge felt that the petition should be heard by Justice Kotwal because some oral directions were given by the learned Judge about filing of affidavit-in-reply. The learned Chief Justice then directed that the petition should be posted before me for hearing. I have heard the petitioner, who appeared in person and Shri Deodhar, learned counsel appearing on behalf of the respondents.

The first grievance of the petitioner is that the respondents have declined to grant subsidiary licence in respect of import licence granted to the petitioner in the year 1983-84. The licence for AM 1983-84 was issued by the joint Chief Controller of Imports and Exports, Bombay to the petitioner only on February 28, 1988. The validity period of the licence is of a duration of 18 months. On February 29, 1988, the petitioner applied to the joint Chief Controller of Imports and Exports, Bombay for grant of subsidiary licence. In accordance with the Import Policy of the year 1983-84, the importer is entitled to the subsidiary licence in respect of the value which is not exhausted under the licence. Alongwith the application, the petitioner attached a xerox copy of original import licence. The original licence was handed to Joint Controller of Imports and Exports on March 24, 1988. The petitioner was informed subsequently that subsidiary licence cannot be granted because the Import Policy for the year 1988-89 which came into force on April, 1988 did not provide for grant of subsidiary licence. The petitioner complains that the refusal to grant subsidiary licence is not correct and submission of the petitioner deserves acceptance. The petitioner was entitled to secure subsidiary licence in accordance with Import Policy of the year 1983-84 and which was in operation till end of March 1988. From the date when the petitioner applied for subsidiary licence, i.e. February 29, 1988 and till the end of March 1988, the petitioner could not have been deprived of subsidiary licence in accordance with existing policy. The respondents cannot decline to grant such subsidiary licence for the failure of respondents in not granting the application till end of March 1988. The respondents cannot take advantage of change of policy which came into force from April 1, 1988 to deprive the petitioner of subsidiary licence. Shri Deodhar, learned counsel appearing on behalf of the respondents, submitted that the validity period of the licence granted on February 16, 1988 expired after 18 months and the petitioner approached this Court only on January 30, 1990, i.e. long after the expiry of validity period of 18 months and, therefore, the relief should not be granted. It is not possible to accede to the submission of the learned counsel. The right to claim and use subsidiary licence arises provided the value of import permitted by the original licence is not exhausted within a period of 18 months. The petitioner could have well expected to exhaust the licence within 18 months and came to this Court against the order of refusal of subsidiary licence only when the petitioner realised that the advantage of the licence could not be exhausted during the period of 18 months. In my judgment, the relief sought by the petitioner cannot be declined on the ground of delay. The petitioner is entitled to subsidiary licence for the year 1983-84.

The petitioner also complained that in case subsidiary licence could not be issued by the respondents for one or the other reason, then the respondents were duty bound to refund the application fees paid by the petitioner. It is not necessary to examine this aspect as the petitioner is entitled to grant of subsidiary licence.

The third contention urged by the petitioner is that the petitioner had applied for import licence in the year 1984 but that licence was granted only on March 16, 1988. The petitioner submitted that the description of the goods given in the licence reads as "Spares of Machinery/instruments as per list attached". The first condition set out in the licence is "only spares related to the machinery imported by or through the agent concerned will be allowed." The petitioner claims that subsequently the expression "As per list attached" and "Condition No. 1" was deleted, but simultaneously an endorsement was made that it was restored. The petitioner complains, and with considerable merit, that insertion of this condition at the initial stage and restoration thereafter is wholly incorrect because this action is in contravention of Import Policy of the year 1984. The submission is correct. Shri Deodhar could not explain why initially such condition was inserted, then it was deleted and then again restored. The petitioner is right in claiming that deletion was proper and restoration was wholly incorrect. The respondents are, therefore, required to be directed that the licence should be corrected and the condition should be deleted.

The last contention urged by the petitioner is in respect of grant of import licence for the years 1985, 1986, 1987 and 1988. These four import licences were granted on March 16, 1988, March 9, 1988 March 16, 1988 and March 16, 1988 respectively. The petitioner complains that at the time of issuance of the licences, the attached slips were not annexed to the licences with the result that the licences could no be used. The licence becomes operative provided an attached slip is annexed by the authority issuing the licence. These slips were attached on April 20, 1988 for the year 1985 and on October 14, 1988 in respect of the remaining three import licences of the years 1986, 1987 and 1988. The petitioner submits that the validity period of import licences is for a duration of 18 months from the date of issuance. The petitioner complains that as the attached slips were annexed to the licence on April 20, 1988 in respect of year 1985 and on October 14, 1988 in respect of years 1986, 1987 and 1988, the validity date should be deemed to have commenced from the date of annexure of the attached slip. The petitioner submits that as long as the slip was not attached, the petitioner could not make use of the licence. The submission is correct and deserves acceptance. The period of 18 months in respect of four licences can commence to run only from the date of annexure of attachment of slips.

The petitioner then submitted that the period of 18 months in respect of import licence for the year 1985 would come to an end in October 1989 and in respect of three other licences in April 1990. The petitioner claims that though the petition was filed on January 30, 1990, i.e. before the expiry of period of 18 months in respect of three licences and within three months from the expiry of licence of year 1985, the mere grant of declaration that the period of 18 months would commence from the date when the slips were attached would not confer any practical advantage on the petitioner, unless the respondents are directed to extend the period for a duration of six months from today. It is undoubtedly true that due to the pendency of the petition and inability of this Court to hear it before April 1990 has caused prejudice to the petitioner. In my judgment, the petitioner can be compensated by directing the respondents to extend the period of these four licences for a duration of three months from the date when the licences are handed over with requisite endorsement to the petitioner. In my judgment, this relief would sufficiently compensate the petitioner.

These are the only grievances made by the petitioner and the reliefs which the petitioner is entitled to are as follows :

(a) The respondents shall issue subsidiary licence to the petitioner in respect of import licence granted for the year A/M 1983-84. The subsidiary licence shall be granted by the respondents within a period of four weeks from the date the petitioner complies with requirement for grant of such licence.

(b) The respondents are directed to carry out requisite corrections in the import licence for the year A/M 84 by deleting Condition No. 1 and the expression "As per list attached" while describing the description of the goods.

The correction should be made within four weeks.

(c) It is declared that the period of 18 months in respect of import licences granted for the years 1985, 1986, 1987 and 1988 shall commence from the date of issuance of attachment slips in respect of these four licences i.e. from April 20, 1988 in respect of licence for the year 1985 and October 14, 1988 in respect of remaining three licences of the years 1986, 1987 and 1988. As the validity period of 18 months in respect of these four licences had already expired, the respondents are directed to keep these four licences valid for a duration of three months from the date when the amendment would be carried out by the respondents in respect of these four licences and such amended licences are granted to the petitioner. The respondents shall carry out the amendment within a period of four weeks from the date when the petitioner submits these four licences to the Chief Controller of Imports and Exports, New Delhi for requisite amendment.

Rule is made absolute accordingly. There will be no order as to costs.