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Judgment
Raju, J.—The above reference has been made to this Court u/s 130(1) of the Customs Act, 1962 at the instance of the applicant Company,
which is an importer, to refer the following question for our determination and opinion :
Whether in the facts and circumstances of the case, the endorsement dated 15-1-1985 of the licensing authority on the licence dated 16-1-1984,
made while re-validating the licence, would have the effect of extinguishing the original validity of the licence for the shipment of the goods in terms
of the import policy prior to revalidation upto 31-1-1985 ?
The applicant - Company are manufacturers of various types of needles and for this purpose, the applicant imports steel wire of required types
and diametres from time to time. They imported a consignment of steel wire valued at Rs. 15,055/- in April, 1985 and produced three import
licences issued on 16-1-1984, 11-11-1983 and 3-3-1984 issued by the licensing authority, which were valid for 12 months from the date of issue.
On a request said to have been made to the licensing authority by the applicant, the validity of the licence dated 16-1-1984 was said to have been
extended by that authority on 15-1-1985 with the following endorsement :
Revalidated for six months from the date of expiry of this licence subject to the following conditions :
(1) In the extended period of shipment the licence shall cease to be valid for import of items as are not permissible for import against such licences
under the Imports Policy for 1984-85;
(2) The benefits available in the matter of imports in terms of sub-paras 257 (2) and (4) will not be allowed during the extended period of validity
of additional licence;
(3) The licence is not transferable and shall be subject to A.U. condition.
After complying with the required procedure for adjudication proceedings, the Collector of Customs by his order dated 17-5-1985 held that since
the licence dated 16-1-1984 issued under the Import Policy 1983-84 was revalidated from the date of expiry subject to the condition that the
licence ceased to be valid for import of items that were not permissible for the period covered by April, 1984 - March, 1985 Policy, i.e., the
subsequent policy period and on account of the impermissibility of the items for import according to April, 1984 - March, 1985 the licence
revalidated from 15-1-1985 was not valid for the import of goods shipped on 31-1-1985. The Collector also held that the licence dated 11-11-
1983 was also not valid for the import and that the third licence dated 5-3-1984 though acceptable, had a negligible balance of only Rs. 1,685/-.
On the above basis and conclusions arrived at, the goods in question were directed to be confiscated, but ultimately allowed to be redeemed on
the payment of fine of Rs. 80,000/-. Aggrieved, the applicant filed an appeal before the Tribunal, which confirmed the order of the Collector by his
order dated 6-10-1986. There upon, the applicant moved for a reference and it is under the above circumstances, the question noticed supra
came to be referred for adjudication of this Court.
Mr. Habibullah Basha, learned Senior Counsel appearing for the applicant, while elaborating the question formulated and referred to our
consideration pointed out that the endorsement dated 15-1-1985 made by the licensing authority on the licence dated 16-1-1984 revalidating the
licence would not have the effect of extinguishing the original validity and operation of the licence for the shipment of the goods in terms of the
import policy even prior to the revalidation upto 31-1-1985 and that the authorities below including the Tribunal below committed a grave error of
law in arriving at a contra decision. In order to sustain the claim, the learned Senior Counsel relied upon the decision in Bharat Barrel and Drum
Mfg. Co. (P) Ltd. Vs. The Collector of Customs, Bombay and Another, and also contended that the substantial rights, which accrued to the
applicant by virtue of the licence granted cannot be denied to him, unless as contemplated under clause 9 of the Import (Control) Order, 1955, the
same has been cancelled in accordance with the procedure for the reasons stated therein.
Per contra, Mr. S. Veeraraghavan, learned Additional Central Government Standing Counsel while adopting the reasons assigned by the
Tribunal below and reiterating the stand of the Department, contended that the applicant having got revalidated the licence dated 16-1-1984 on
15-1-1985 subject to certain conditions particularly condition No. 1 noticed in the earlier part of this order, could not assert his claim in derogation
of the said condition and if at all the applicant was aggrieved, it should have independently challenged immediately thereafter the said condition and
that the same not having been done it is too late for the applicant to challenge the efficacy of the condition and assert his entitlement under the
original licence as it stood prior to the revalidation on 15-1-1985.
We have carefully considered the submissions of the learned counsel appearing on either side. The relevant dates, which are material for
appreciating the contentions of the parties before us are that the applicant has been granted licence dated 16-1-1984 for the import of the goods in
question as per paragraph 186 of April, 1983 - March, 1984 policy of the value of Rs. 3,96,372. The said licence was to be valid for 12 months
period for shipment of the goods as per which the validation of the said licence would subsist till 15-1-1985. The applicant no doubt moved for
revalidation in terms of paragraph 210 of the Hand Book of Import and Export Procedures in vague for the year 1983-84. It is indisputable that
the licensing period is for the year commencing with 1st April of a particular year and ending with 31st March of succeeding year. Paragraph 207
of the Hand Book deal with the validity of the import licence and it is as follows :-
(1) Validity is related to date of shipment despatch :- the validity of an import licence is decided with reference to the date of actual
shipment/despatch of the goods from the supplying country and not the date of arrival of the goods at an Indian Port.
(2) Where the date of expiry of an import licence falls before the last date of a month, the licence will automatically be valid upto the end of that
month. Also in calculating the period of validity of a licence the date of issue of the licence is excluded. For instance, if a licence is issued on 10th
November, 1982 and it is valid for 12 months, it will normally expire on 10th November, 1983 but in accordance with the provisions of this
paragraph, such licence will be treated as valid upto 30th November, 1983"".
Paragraph 208 of the Hand Book deals with the grace period in order to facilitate shipment and despatch of goods of the clearance of those
goods. By the operation of the provisions contained in sub-paragraph (2) of paragraph 207, the licence in question with its validity period of 12
months upto 15-1-1985 (the date of expiry falling before the last date of the month stands automatically enlarged and valid upto the end of that
month, namely 31-1-1985. It is on this basis, the learned Senior Counsel for the applicant would contend that the shipment of the goods in
question on 31-1-1985 during the extended period of validity of the original licence itself was valid. Even de hors the terms of revalidation, the
applicant is entitled to have the goods imported and cleared without violating the provisions of law even under the terms of policy in force in 1983 -
84, not withstanding the change in policy with effect from April, 1984 - March, 1985 with reference to the goods in question which became not
permissible thereafter as per the import policy in force for 1984 - 85. In traversing the above claim of the learned Senior Counsel for the applicant,
the learned Additional Central Government Standing Counsel would contend that with the revalidation on 15-1-1985 subject to certain conditions,
and particularly of the nature of condition stipulated as condition No. 1 that during the extended period of shipment, the licence would cease to be
valid for import of items as are not permissible for import against such licences under the Import Policy for 1984 - 85, it was not permissible for
the applicant to rely upon the very same licence which stood revalidated with such condition of prohibition to claim to import the goods in question
which became impermissible for the applicant during the licensing period April, 1984 - March, 1985. In substance, the stand of the Department
appears to be that with the revalidation, on and from the date of such revalidation the original licence has lost its significance or force and it would
be and could be considered to be operative only subject to the endorsement of revalidation effected on 15-1-1985 even from 15-1-1985. It is
only in this context, as we could see, the question itself has been formulated for our consideration by the Tribunal below in the manner it is found
referred to us as to whether such revalidation had the effect of extinguishing a right in the form of original validity upto 31-1-1995 by virtue of the
automatic extension and enlargement as stipulated in paragraph 207(2) of the Hand Book.
The licence in question issued on 16-1-1984 under the policy in force for the year April, 1983 - March, 1984 carried with it certain rights as
also duties and responsibilities upon the licensee. The licence, for the period subsequent to its period of expiry, has no doubt been revalidated for
six months. The revalidation clause itself would read that it has been revalidated for ""six months from the date of expiry of this licence subject to the
following conditions."" The licence after revalidation though on paper may appear to be part of one and the same licence, i.e., the licence granted on
16-1-1984 which stood revalidated for six months subject to certain conditions as per the revalidation endorsement dated 15-1-1985, in our view
actually has two distinct identities and treated as two viz., original licence as granted on 16-1-1984 and the one revalidated on 15-1-1985, from
which different rights and obligations flow. As noticed supra, the revalidation was for six months from the date of expiry of the original licence
granted on 16-1-1984. It becomes necessary, therefore, to consider and thereafter record a finding as to what is the actual and effective date of
expiry of the original licence which was granted on 16-1-1984, in continuation of which alone the period of revalidation of six months commence
and become effective. Paragraph 207(1) makes it clear that the validity is related to the date of shipment/despatch and is tested with actual
shipment of the goods from the supplying country and not the arrival of the goods in India. Sub-paragraph (2) of paragraph 207 would mandate
that where the date of expiry of an import licence falls before the last date of month as in this case which was 15-1-1985, the licence will
automatically be valid upto the end of that month viz., 31-1-1995. Consequently, by virtue of the mandate of law, the licence granted on 16-1-
1984 stood automatically enlarged and valid upto 31-1-1985 and it is only on that date, the original licence granted on 16-1-1984 could be said in
the normal and usual course to expire. The rights and obligations and liabilities if any, of the parties, both importer as well as the Department have
to be ascertained and determinded under the original licence issued on 16-1-1984, as if the initial grant itself was valid for shipment/despatch of
goods for import up to 31-1-1985. That being the position, the factum of revalidation affected of the very licence granted on 16-1-1984 by virtue
of the endorsement dated 15-1-1985 and the nature of the licence for the revalidated period would constitute it as a distinct and separate one, as if
it is a separate document for the period commencing with and in continuation of the date of expiry of the original pre-revalidated licence, no doubt
subject to the conditions specified therein. Therefore, the three conditions stipulated for the revalidated period could govern the licence as issued
by virtue of the endorsement dated 15-1-1985 during the revalidated period of six months commencing from the date of expiry of the original
licence only and not even during the period of currency of the licence prior to the date of expiry of the original licence which, as noticed in this
case, has to be for all purposes 31-1-1985. Consequently, de hors revalidation for a further period of six months subject to certain conditions
noticed therein on 15-1-1985, the applicant by virtue of a combined reading of paragraphs 207 and 208 of the Hand Book, had the right to validly
import the goods in question by virtue of its actual shipment in the supplying country on 31-1-1985 within the enlarged and automatically extended
period of validity of the original licence itself proprio vigor. Such rights could not be claimed by the Department to have been obliterated or nullified
by virtue of either the application made for revalidation or on account of the actual endorsement of revalidation made on 15-1-1985 subject to
certain conditions including condition No. 1 noticed supra. The rights secured to a licensee under the licence in force (in this case up to 31-1-1985
to make actual shipment in the foreign country) are substantial rights and such substantial rights secured in law could not by implication be
considered to have been nullified. In our view, the Collector of Customs as also the Tribunal below have committed a grave error of law in relying
upon paragraph 210(2) of the Hand Book, and the manner of construction placed by them on the said provision without any reference or regard to
paragraph 207. The said error on the part of the original authority as also the Tribunal crept in on account of their omission to view the original
licence and its duration of validation and the rights flowing therefrom as distinct one, separate from the currency or enforceability of the same
licence during the revalidated period, which could only be from the date of expiry of the original licence which in this case happens to be 31-1-
1985. If the authorities below have viewed the licence for the original period and revalidated period as two distinct compartments without dove-
tailing both in the same licence, the authorities could not have been oblivious to the substantial rights of the parties even during the original licence in
terms of its automatic extension of period of validation by virtue of Paragraph 207(2) of the Hand Book. The authorities below including the
Tribunal, therefore, in our view, were not justified in clubbing the two distinct entities of the licence into one to negate the substantial rights of the
applicant secured under the original licence, itself.
For all the reasons stated above, we answer the question in favour of the applicant and against the revenue by holding that the endorsement
dated 15-1-1995 made by the licensing authority on the licence dated 16-1-1984 made while revalidating the licence, could not have the effect of
extinguishing the original validity of the licence for the shipment of the goods in terms of the policy prior to revalidation up to 31-1-1985. There will
be no order as to costs.