TaxTMI 
TaxTMI 
1992 (4) TMI 135
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....f para 131(1) read with para 133 of the Import Policy, 1980-81 and para 138(1) read with para 140 of the Import Policies of 1981-82 and 1982-83, notwithstanding the fact that they themselves are not the manufacturer exporters in whose favour the REP Licences in question were issued. According to the petitioners, their cases are squarely governed by the decision of the Supreme Court in M/s. Oswal Woollen Mills Ltd. v. Union of India & Others, reported in AIR 1983 S.C. 969 wherein on consideration of the provisions of para 138(1) read with para 140 of the Import Policy, 1981-82 it was held that the petitioners in that case, who were transferees of the REP Licences issued in the name of the actual manufacturer exporters were entitled to the facilities available under the said licences. It is stated that some of the petitioners in this batch of writ petitions are governed by the Import Policy, 1980-81, some others by the Import Policy, 1981-82, and rest by the Import Policy, 1982-83. According to the petitioners, the provisions in regard to transfer of the REP Licences in all these three Import Policies are identical except for change in numbers of the relevant paragraphs and as such t....
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.... laid down by the Supreme Court in the aforesaid decision, on or about 27-8-1983, the Respondent No. 4 issued a circular to all the Licensing authorities being Circular No. 53 of 1983 asking them not to entertain requests from other exporters relying on the aforesaid judgment of the Supreme Court. The relevant part of this circular reads : "2. A question was also raised at the Regional Officers Meeting about endorsement under para 138 of Import Policy, 1981-82 on acquired REP Licence on the basis of recent judgment of the Supreme Court in M/s. Oswal Woollen Mills case. The effect of this judgment is confined only to the exporters in whose case the judgment has been delivered and in respect of therein licence in which request for endorsement under para 138 of Import Policy was rejected during 1981-82. The judgment does not concern other cases, therefore, there is no question of entertaining requests from other exporters relying on the said judgment. Even in case in which judgment in question was delivered, detailed instructions will be issued by the Head Quarters after the judgment has been studied. (Emphasis supplied)" 5. In continuation of this circular, the Joint Chief Cont....
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....erees of REP Licences. Others directly approached this Court even without making any application before the concerned authorities for clearance and/or endorsements as according to them, in view of the clear stand of the respondents not to give effect to the decision of the Supreme Court in M/s. Oswal Woollen Mills (supra), which is quite evident from the aforementioned two circulars, it would have been a futile exercise or an empty formality. 7. Before we proceed to examine the various contentions raised in the writ petitions, it may be expedient to briefly state the facts of one of the cases viz., Writ Petition No. 3167 of 1987 which is stated to be of representative type. The petitioner in this case is the sole proprietor of a business run under the name and style of Bharavi Pharmaceuticals, having its office at Baroda. The petitioner claims to be the transferee of the REP licence being Licence No. P/0481316 dated 10-4-1987 issued by the Licensing Authorities at Calcutta to M/s. Chloride India Limited, Calcutta. The licence is Exhibit 'D' to the petition. This licence was first transferred to one M/s. Goenka Trading Corporation of Calcutta who, in turn, transferred the same to....
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....es. These circulars were simply intended to clarify that every claim required a closest scrutiny both on facts as well as in law and as such no hasty decision should be taken on the assumption that by virtue of aforesaid Supreme Court decision every transferee of REP Licence under all the three Import Policies concerned, were ipso facto entitled to the benefits of special facilities available to the manufacturers exporters under the relevant paragraphs 131(1) or 138(1) of the relevant Import Policy inasmuch as a proper verification of the facts of each case was necessary to ascertain whether all the other conditions specified in different paragraphs of the relevant Policy in this regard were satisfied or not. Counsel for the petitioners refuted this contention on the ground that it is prima facie contrary to what is stated in the two circulars referred to above. Counsel further submitted that as a decision had already been taken by the respondents to the effect that the transferee of REP Licences would not be granted the benefits of special facilities despite the decision of the Supreme Court in M/s. Oswal Woollen Mills and the same having been communicated to all the licensing aut....
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.... scrutinise the relevant provisions of the Import Policy, 1980-81 and Import Policy, 1982-83 with a view to seeing whether they are substantially identical to those in Import Policy, 1981-82 on which the decision of the Supreme Court was based or there is any material difference which might render the ratio of the said decision inapplicable. 10. Before taking up these questions, it may be expedient at this stage to state briefly the facts of the case of M/s. Oswal Woollen Mills Ltd. (supra). The petitioner in that case was originally a registered Export House within the meaning of para 5(7) of the Import Policy, 1981-82 and had been a manufacturer exporters since 1971. It had become a recognised Trading House as its Export House Certificate had been converted into a Trading House Certificate in terms of paragraph 195(1) of the Import Policy 1981-82. Recognised Trading Houses are entitled to certain facilities under paragraph 195(4) and one of them is import replenishment (REP) licence transferred to them by others. An import replenishment (REP) licence had been issued to a manufacturer exporter against his actual export. The petitioner got the said licence transferred to it by a....
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....gle' item should not exceed Rs. 1 lakh. REP licences issued to manufacturer exporters who want to avail of this facility will be issued with an "Actual User" condition and such licences will not be transferable. It is also open to the manufacturer exporter to make use of this facility only for a part of his REP entitlement and to get for the remaining part a freely transferable REP licence. Utilisation of REP Licence "140. - The REP licence will be issued in the name of the Registered Exporter only and will not be subject to Actual User condition. Except for cases covered by paras 136(2), 185(2) and 186(2) a licence holder may transfer the licence in full or in part in favour of any other person. The licence holder or such transferee may import the goods permitted therein, but the facility of paragraphs 136(2), 137 and 146 shall not be available to any transferee, unless the transferee is himself a registered exporter and can satisfy the custom authorities at the time of clearance of the goods, of his bona fides. Trading Houses 195(4) - Trading Houses will be granted the following facilities under the Import Policy:- (i) xx xx (ii) Import replenishment (REP) licen....
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....lar No. 53 of 1983 and the further circular dated 19-11-1983 purporting to clarify the same, cannot be approved. In view of the decision of the Supreme Court rendered in such clear terms, there was absolutely no justification for issuing the impugned circular by the Respondent No. 4 to all the licensing authorities telling them that the effect of this decision was confined only to the exporters in whose case it had been delivered and that it did not concern other cases and that there was no question of entertaining requests from other exporters relying on the said judgment. Equally unjustified is the clarification dated 19-11-1981 reiterating that the ratio of this judgment applied only to the case in which it was delivered. Evidently this circular and the clarification had been issued with the sole object of not giving effect to the decision of the Supreme Court which was otherwise binding on them. We cannot approve such action of the respondents. We want to remind the respondents, that under Article 141 of the Constitution, the law declared by the Supreme Court is binding. No attempt, therefore, should be made to side-track a binding decision of the Supreme Court on any pretext o....
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....) import replenishment (REP) licences transferred to them by other." 20. A comparison of these paragraphs with the corresponding paragraphs of the Import Policy, 1981-82 clearly goes to show that these two sets of provisions are identical. There is no material difference between them. The ratio of the decision of the Supreme Court in M/s. Oswal Woollen Mills (supra) will, therefore, equally apply to transferees of (REP) licences issued against registered contracts under the Import Policy, 1980-81 also. 21. We may now turn to the third question which relates to the applicability of the ratio of M/s. Oswal Woollen Mills (supra) to transferees of (REP) licences issued against registered contracts under the Import Policy, 1982-83. For the purpose of deciding this question we have to carefully go through the relevant paragraphs of this policy. On perusal of the same, we find that there is a material difference in the relevant paragraphs in this Policy from those of the Import Policy, 1981-82. The language of paras 138 and 140 of this policy is materially different from that of the corresponding paragraphs of Import Policy of 1981-82. The words which were not there in para 138(1) o....
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....however, open to an exporter to make use of this facility only for apart of his REP entitlement, and to get for the remaining part a freely transferable REP licence. In such cases, the REP entitlement will be split up into two separate licences, namely, transferable and non-transferable. The transferable licence will be issued for the items as permitted in Appendix 17 against the relevant export product. The non-transferable licence will be issued for "raw materials, components, consumables, spares and packing materials as permitted under para 138 of Import Export Policy, 1982-83'". In the case of such non-transferable licences, the additional value for import of restricted items referred to in sub-para (8) above will be 10% of the fob value of exports against which the main REP licence was issued, and not the proportionate part of fob value." Utilisation of REP licence 140. - The REP licence will be issued in the name of the Registered Exporter only and will not be subject to "Actual User" condition. Except for cases covered by paras 136(2), 138, 185(2) and 186(1), a licence holder may transfer the licence in full or in part in favour of any other person. The licence holder ....