TaxTMI 
TaxTMI 
2013 (10) TMI 359
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....the date of the applications. It is the case of the appellants that by 3rd August, 1993 all discrepancies and queries raised by the respondent were removed and clarified. 3. On 20th August, 1993, the policy underwent a change whereby issue of value based advance licences against silk exports was discontinued and only quantity based licence were to be issued to exporters against their export proceeds. 4. On 20th December, 1993, respondent advised the appellants by a letter to furnish revised applications for quantity based licences. On 1st February, 1994, appellants replied stating that as all the requirements had been satisfied by them long time back, they should be issued only value based licences and not quantity based licences. 5. However, on 25th November, 1994 the respondent issued quantity based licences to the appellants. 6. On 9th December, 1994, appellants by a letter objected to the grant of quantity based licences on the ground that they had applied for value based licences more than two and a half years ago in accordance with the then prevailing policy. By this letter, appellants returned the quantity based licences with a request to respondent to issue value based ....
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....ocedure in force on the date of issue of the licence and shall be subject to the fulfilment on a time-bound export obligation and value addition as may be specified. Advance Licences may be either value based or quantity based. b) Clause 66 Exports in anticipation of licence : Exports/supplies made from the date of receipt of an application under this Scheme by the licensing authority may be accepted towards discharge of export obligation. If application is approved, the licence shall be issued based on the input output and value addition norms in force on the date of receipt of application by Licensing authority in proportion to the provisional exports already made till any amendment in the norm is notified. For rest of the exports the Policy/Procedures in force on the date of issue of the licence shall be applicable......." (emphasis supplied) 11. Mr. Rawal further submitted that because of negligence and omission on the part of the respondents in processing the applications for advance licences, the entitlement of the appellants to receive a value based licence could not be defeated. Mr. Rawal contended that by virtue of paras 109D and 258 of the Handbook of Procedure of th....
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....ht to obtain value based licence which had accrued in appellants' favour under the earlier policy could not be taken away by a subsequent change of policy on 20th August, 1993. Consequently, according to him, the change in policy with effect from 20th August, 1993 of issuing quantity based licence instead of value based licence could not be given retrospective effect. In support of his submission, Mr. Rawal relied upon the judgment of this Court in G.D. Impex International (India) & Anr. Vs. Union of India & Ors., CWP 567/1994 decided on 12th December, 2002 wherein it has been held as under:- "It is trite law that the Government has right to take a policy decision and it can rescind/alter/modify or reformulate its earlier policy decision. However, any right which has accrued in favour of a party under earlier policy cannot be taken away by change in policy decision which is taken subsequently. In other words, the decision contained in public notice dated 14th September 1993 could not have operated retrospectively so as to take away vested right of the petitioners which had accrued to them on the basis of exports duly made by 21st/23rd July 1993 and for which the petitioners had ac....
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....bmitted that paras 109D and 258 of the Handbook of Procedure of Export and Import Policy only mandated the respondent to process the applications for advance licences as expeditiously as possible. 17. Mr. Datta also referred to para 15 of the Export and Import Policy to submit that no person could claim a licence as a matter of right and licensing authority had the power to refuse licence. 18. Mr. Datta also relied upon para 16 of the Export and Import Policy to submit that respondent was well within its right to substitute policy of grant of value based licence with quantity based licence after issuing a public notice. 19. In rejoinder, Mr. Rawal did not dispute that para 66 of the Export and Import Policy referred to by learned counsel for the respondent was in vogue during the period appellants had applied for grant of advance licences. He, however, submitted that the policy of grant of value based licence could not be substituted for grant of quantity based licence by following the method for amendment prescribed in the Handbook of Procedure. 20. Having heard learned counsel for parties, the admitted factual position that emerges is that the appellants applied for advance l....
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....et of the doctrine of promissory estoppel which has been held inapplicable in such a situation. In Kasinka Trading [(1995) 1 SCC 274] which related to withdrawal of exemption from payment of duty etc. in exercise of the statutory powers, it was reiterated that the power to exempt includes the power to modify or withdraw that benefit; and the liability to pay duty under the Customs Act, 1962 arises when the taxable event occurs being subject to payment of duty as prevalent on the date of the entry of the goods. It was held that the doctrine of promissory estoppel could not be invoked to question the withdrawal of notification issued under Section 25 of the Customs Act, 1962 when it was done in public interest. Equities have to be balanced and public interest must outweigh individual interest. Kasinka Trading [(1995) 1 SCC 274] clearly holds that withdrawal of such a benefit can be made in public interest during the period for which the benefit had earlier been intended. In our opinion, this is sufficient to indicate the fallacy inherent in the submissions made on behalf of the appellant. 8. In D. Navinachandra & Co. v. Union of India [(1987) 3 SCC 66 : (1987) 2 SCR 989] it was clea....
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....better position to have the overall picture of diverse factors to grant permit or refuse to grant permission to import or export goods. The decision, therefore, would be taken from diverse economic perspectives which the executive is in a better informed position unless, as we have stated earlier, the refusal is mala fide or is an abuse of the power in which event it is for the applicant to plead and prove to the satisfaction of the court that the refusal was vitiated by the above factors. 5. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government is satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay down new policy. The court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine prior....
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....ing the rule of promissory estoppel or to otherwise bind the Government to apply and adopt the value addition norm in force on the date of application. In this context, the observations of this Court in Pankaj Jain Agencies v. Union of India [(1994) 5 SCC 198] are apposite. M.N. Venkatachaliah, C.J., speaking for the Court, held: (SCC p. 207, para 22) "The third and the last submission is that the sudden and sharp increase of duty steeply puts up the petitioner's liability from Rs 1,84,341 to Rs 6,42,065 on these consignments and constitutes an unreasonable restriction on the petitioner's fundamental rights under Article 19(1)(g) of the Constitution. A tax, in particular, in the nature of duties of customs is not per se violative of Article 19(1)(g). Mere excessiveness of a tax is not, by itself, violative of Article 19(1)(g). This question cannot be divorced from the nature of the right to import. There is no absolute right much less a fundamental right to import. (See: Dy. Asstt. Iron and Steel Controller v. L. Manickchand, Proprietor, Katrella Metal Corpn. [(1972) 3 SCC 324] ; Andhra Industrial Works v. Chief Controller of Imports [(1974) 2 SCC 348 : (1975) 1 SCR 321] ; J. Fern....
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....estion whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question has to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where, however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried ....