TaxTMI 
TaxTMI 
1982 (12) TMI 217
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....f India, Industrial Machinery-I Directorate. Petitioner No. 1 claims that it has manufactured nine plants used for the production of extruded aluminium collapsible tubes. All these nine plants are used by Petitioner No. 1 itself. Petitioner No. 1 has exported one complete plant to Zambia. There is some dispute between the parties as to whether the concern at Zambia is a sister concern of Petitioner No. 1 or an independent concern. Respondent No. 3 is a Company incorporated under the provisions of the Companies Act and have made all preparations to commence manufacture of collapsible tubes, rigid cans and containers. Respondent No. 3 Company has acquired lands in the backward area and have completed all infrastructure as electricity, roads etc. to establish a factory. Respondent No. 3 had also entered into contracts with foreign suppliers and had made arrangements to open letter of credit and had made provision for finance. The Hand Book of Import-Export Procedure 1980-81 provides for a procedure in respect of import of Capital Goods including plants and machinery. It inter alia provides that where the value of Capital Goods required exceeds Rs. 20 lakhs, the intending applicant sho....
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....on February 23, 1981 to the Central government, but that application was not considered as it was not in accordance with the policy. Petitioner No. 1 responded to the advertisement and by letter dated February 24, 1981 informed respondent No. 3 that petitioner No. 1 are eminently suited to manufacture machines and offering technical advice. Petitioner No. 1 claimed that their aluminium collapsible tubes lines are time tested in India and have also exported a complete plant to Zambia against stiff competition. Respondent No. 3 entered into correspondence with petitioner No. 1 seeking opportunity to visit their plant where the machinery manufactured by petitioner No. 1 is in operation, but the response of petitioner No. 1 was lukewarm and it is not in dispute that respondent No. 3 was unable to get a first-hand knowledge of the working of the machinery alleged to have been manufactured by the petitioners. 4. On April 22, 1981 respondent No. 3 addressed a letter to the Secretariat for Industrial Approvals, applying for licence for the machinery required for manufacture of Aluminium Collapsible Tubes. In this letter, respondent No. 3 pointed out that in pursuance of the adverti....
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..... 1 and 2 on the other, and the petitioner also made representation to the Minister for Industries of the Government of India. The petitioners claim that they became aware in September, 1981 that respondent No. 3 would be permitted to import the machines, including the Impact Extrusion Press and Automatic trimming machine, as on September 10, 1981 at the 17th meeting of the Capital Goods Committee a decision was taken to permit the import of the said plant including the two items which were taken off of the O.G.L. list in the year 1981-82. The petitioners continued its efforts with the Minister for Industry to deprive respondent No. 3 of the import permits and thereupon Mr. P.K. Sunkaria, Development Officer, Director General of Technical Development visited the factory of the petitioners on September 13, 1981. Shri Sunkaria after his visit probably made his report and thereupon the Director General of Technical Development called upon the petitioners to furnish certain particulars. The petitioners also made representation to the Engineering Export Promotion Council requesting that Ministry for industry should be persuaded to prevent grant of import licence to respondent No. 3. Acc....
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....he machinery for home consumption until the disposal of the petition. There is one more circumstance to which reference is required to be made at this juncture. During the pendency of this petition, the petitioners took out Chamber Summons calling upon respondent Nos. 1 and 2 for disclosure and inspection of certain documents, and the learned Single Judge made the Chamber Summons absolute and issued the requisite directions by an order dated October 25, 1982. 7. The main thrust of the petitioners is that the Policy was framed by the Government of India for encouraging indigenous manufacturers and to prevent drain on foreign exchange and on the facts and circumstances set out hereinabove, the Government has not acted fairly in over-looking the claim of the petitioners and granting import licence to respondent No. 3. In answer to the petition on behalf of respondent Nos. 1 and 2, Shri Gopalan Rajappan Nair, Deputy Chief Controller of Imports and Exports, Bombay, has filed a return sworn on December 4, 1982. It is claimed in this return that the import is allowed to respondent No. 3 only after it is cleared by D.G.T.D. from indigenous angle and has been duly certified and clea....
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....ch requires answer is whether respondent Nos. 1 and 2 have acted fairly in implementation of the Import Policy for the concerned two years. Shri Desai, appearing in support of the petition, relied on the decisions reported in 1972 (2) Queen's Bench 299 (Regina v. Liverpool Corporation), (1969) 1 All Eegland Reports 904 (Schmidt v. Secy. of State for Home Affairs), A.I.R. 1978 S.C. 851 (Mohinder Singh Gill and Anr. v. The Chief Election Commissioner), and (A.I.R. 1981 S.C. 136 (S.L. Kapoor v. Jagmohan and others) to claim that it is the bounden duty of the Government to act fairly while considering the claims made by the petitioners in accordance with the import policy. There cannot be any dispute about the proposition canvassed by Shri Desai and indeed Shri Noorani, appearing on behalf of respondent No. 3, did not dispute the proposition. The question whether the Government has acted fairly would depend upon the given set of circumstances and there cannot be any general rule of application of fair play. Though the petitioners have claimed that it is necessary for respondent Nos. 1 and 2 to furnish the details about the representation made by respondent No. 3 and the objections rais....
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....s. 1 and 2 are not sufficient. Shri Desai did not dispute that in April, 1981 the petitioners have applied for an import licence for impact extrusion press and automatic trimming machine. In respect of these two machines respondent No. 3 has inserted an advertisement on January 21, 1981 and the petitioners offered to manufacture the same indigenously. It is difficult to appreciate how the petitioners themselves sought an import licence for these two machines when they were making offers to respondent No. 3 to manufacture it indigenously. Shri Desai tried to overcome this difficulty by submitting that the petitioners desired to import these two machines as a proto-type with a view to adopt the latest technical development in these machines and then to manufacture identical machines and sell it to the customers. In the first instance, it is difficult to believe such a tall claim made on behalf of the petitioners. But even otherwise, the petitioners cannot expect that respondent No. 3, who wants to commence its factory after investing a large amount, should wait till the petitioners are able to import the machinery, then modulate their manufacture in accordance with the developed tech....
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....ould not be appropriate to postpone the result of this petition till the Government complies with the order of the learned Single Judge. 12. A faint submission was advanced by Shri Desai that the application made by respondent No. 3 for grant of licence was sanctioned by the Government in spite of the fact that it was made before the expiry of 45 days from the date of advertisement. The submission is clearly erroneous, because respondent No. 3, though initially filed an application on February 23, 1981, that is within 45 days, a fresh application was filed on April 22, 1981 which was obviously after the expiry of 45 days, and in that application the reasons for rejecting the offer of the petitioners have been stated. 13. Shri Desai then submitted that even in respect of the import of two machines, that is Impact Extrusion Press and Automatic trimming machine which were sought for by respondent No. 3 by application dated April 28, 1981, the Government authorities have not followed the import policy for the year 1981-82. The submission proceeds on the basis that these two items of machinery were taken out of the O.G.L. list for the year 1981-82 and the value of these ....