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TaxTMI 
TaxTMI 
2022 (8) TMI 338
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....al Exports Overseas Limited, preferred the aforesaid writ petitions for the following reliefs: WP.Nos.5842, 6481, 6488 and 6489 of 2001 To issue a writ of certiorarified mandamus to call for the records relating to the issuance of the impugned orders passed by the Zonal Joint Director of Foreign Trade, Chennai, under F.No.04/88/40/80/AM.97, F.No.04/88/40/99/AM.97, F.No.04/88/40/68/AM.97, F.No.04/88/40/95/AM.97, respectively, dated 04.09.1998 and further orders dated 22.11.2000, passed by the Director General of Foreign Trade, New Delhi, under Ref.No.F.No.01/85/162/57/AM.01/DES-VI-922, Ref.No.F.No.01/85/162/54/AM.01/DES-VI, Ref.No.F.No.01/85/162/56/AM.01/DES-VI-928, Ref No.F.No.01/85/162/55/AM.01/DES-VI-934 respectively and quash the same and for a direction in the nature of Mandamus directing the appellants to make the necessary endorsement to revalidate the licence as well as bond waiver and allow the first respondent to import duty free the goods as per the given norms applicable on the date of issue of licence. WP Nos.7814 to 7817 of 2002 To issue a writ of certiorarified mandamus to call for the records relating to the impugned orders passed ....
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....shing such particulars is wholly without jurisdiction. Hence, the impugned order passed by the respondents is wholly untenable, without jurisdiction and arbitrary. As noticed above, the Honourable Supreme Court in the case of Prince Rubber Industries (Supra) held that licensee like the petitioner cannot be penalised for inaction on the part of the authorities. Therefore, this Court would be fully justified in allowing the writ petition with a direction to the respondents to revalidate the licences in accordance with law." Feeling aggrieved, the appellants, who were the respondents 2 to 5 in the writ petitions, are before this court with these intra-court appeals. 4.1. The learned Additional Solicitor General of India, appearing for the appellants submitted that in pursuance of a scheme called "Duty Free Entitlement Scheme", the first respondent submitted applications for Quantity Based Advance Licence, which were processed as per Standard IO Norms vide Serial No.7 of Fish Products; and four advance licences viz., No.04009844 dated 20.08.1996, No.04009721 dated 24.07.1996, No.04009928 dated 28.08.1996 and No.04010868 dated 16.01.1997 were granted initially for a period of 12 m....
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....ended by further period of six months and was subsequently, extended by further period of 12 months, at the request of the first respondent; and hence, there is no provision for revalidation beyond the period of 30 months. That apart, the first respondent did not furnish the consumption details of vitamin mixes as called for by the authority concerned. In the absence of such details, the request of the first respondent seeking revalidation in terms of the provisions contained in Public Notice No.2(RE-01)(PN)1997-2002 dated 31.03.2001, cannot be considered and hence, the same was rejected on 05.09.2001. Thus, according to the learned counsel, without complying with the mandatory requirement, the first respondent cannot seek revalidation as a matter of right. 4.3. It is also submitted on the side of the appellants that upon receipt of the representation from the first respondent seeking revalidation of the licences, a report was called for from the Regional Licensing Authority, who inturn submitted the same to the effect that they have power to allow revalidation of the licence for a period of twelve months; but, in the instant case, the first respondent not only requested for rev....
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....revalidation, ought to have been considered by the appellants, but they did not do so. On the other hand, the learned Judge has pointed out the same and decided the writ petitions in favour of the first respondent. 5.2. It is further submitted by the learned senior counsel for the first respondent that it was admitted by the appellants that the applications were submitted in time, however, for no fault of the first respondent, they were rejected on untenable grounds. The learned Judge, on appreciation of the factual matrix of the case, has rightly allowed the writ petitions and directed the authority concerned to revalidate the licences issued to the first respondent, by the order impugned herein, which does not call for any interference by this Court. 6.We have considered the rival submissions and perused the materials placed on record, including the original files circulated by the appellants. 7.Admittedly, the first respondent was granted Advance Licences bearing Nos.04009844 dated 20.08.1996, 04009721 dated 24.07.1996, 04009928 dated 28.08.1996 and 04010868 dated 16.01.1997 for export of fish and fish products by JDGFT, Chennai, for a period of 12 months and the validi....
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....ents of the circular no.5/98-99 dated 21.01.1999, which stipulates the condition of reduction of vitamix mixes, for want of compliance of which, the request of the first respondent seeking revalidation of the licences was rejected by the appellant authorities. The said circular was issued by the Ministry of Commerce, Directorate General of Foreign Trade, New Delhi, which is an executive order, and the same reads as follows: F.No.01/80/40/........./DES-IV/ GOVERNMENT OF INDIA MINISTRY OF COMMERCE DIRECTORATE GENERAL OF FOREIGN TRADE UDYOG BHAVAN; NEW DELHI SALC CIRCULAR NO.5/98-99 Date: 21.01.1999 (i) All Customs Authorities (ii) All Licensing Authorities Subject: Advance licence issued for Import of Vitamin Mixes on Export of Frozen Headon/Headless Shrimps ------------------------------------------------------------------------------------------ ....
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....uantity of 0.227 MT/MT without importing the mineral mixes, with effect from 01.04.1997 the quantity of 0.227 MT/MT was bifurcated into two parts (i)vitamin mixes = 0.027 MT/MT and (ii)mineral mixes = 0.200 MT/MT and vide letter no.3/36/97-98/P&I dated 25.05.1998, all the customs authorities were advised not to allow clearance of vitamin mixes beyond a quantity of 0.027 MT/MT of export. Accordingly, all the licensing authorities were advised that while considering the requests of revalidation of advance licences issued prior to 01.04.1997, the consolidated quantity should be 0.027 MT/MT in respect of vitamin mixes and 0.200 MT/MT for mineral mixes. It was also categorically stated in the said circular that such condition should be taken into consideration in respect of advance licences issued on or after 01.04.1997 where the benefit of para 66 of Export and Import Policy 1996-97 has been granted permitting the consolidated quantity of 0.227 MT/MT for vitamin mixes/mineral mixes. 10.In the present case, the first respondent was issued with 4 advance licences, prior to 01.04.1997 and at the time of issuance of the same, they were permitted to export the quantity of 200 MT of heade....
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....cation relating to further extension of validation of 12 months. However, they made applications seeking revalidation for a further period of six months, even if a time period of 30 months has already expired, placing reliance on the public notice dated 31.3.2001. The said applications were also rejected, by orders dated 05.09.2001 passed by the second appellant for want of details of consumption of vitamin mixes. In this context, the first respondent stated that they have duly complied with all the requirements for revalidation of the licences and the details of vitamin mixes were furnished in its letter dated 21.07.2000 addressed to the Deputy Director General of Foreign Trade, Chennai, but a perusal of the same would disclose nothing about the reduction of quantity of vitamin mixes. For easy understanding, the relevant passage of the said communication is reproduced hereunder: "(VII) Sir, it is not in dispute that our clients have discharged the export obligations without imports of any item under the subject license and under no provision of the policy, they or the processors were required to maintain any account and the same cannot be asked for after such a long time.....
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....Court's order. The committee noted and regretted the delay in taking up the case regarding implementing the decision. The Committee noted that the revalidation of various authorizations is granted in most exceptional circumstances only where the authorizations had expired in the custody of Govt. authority like DGFT/Customs. The aforesaid circumstances do not exist in the instant case. The committee also noted that revalidation was not a matter of right and that the firm earlier did not accept the reduced qty. of inputs and despite having provided a validity of 30 months they did not undertake imports. It was noted that all authorizations pertain to the period of 1996 and 1997 and that at this distance of time there was no merit to revalidate these 4 authorizations. The Committee therefore rejected the request of the firm." Based on the aforesaid decision of the Police Relaxation Committee, the first appellant sent a communication dated ...04.2012 to the first respondent, which can be usefully extracted below: F.No.01/85/162/0066/AM12/DES-VI/PC4 GOVERNMENT OF INDIA MINISTRY OF COMMERCE & INDUSTRY DIRECTORATE GENERAL OF FOREIGN TRADE UDYOG BHAVAN, NEW DELHI - 11....
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....f same shall be submitted to DGFT. 3. Since the above mentioned cases are not covered under the provisions of FTP the matter was placed before the Policy Relaxation PRC (PRC), constituted under the Chairmanship of Director General of Foreign Trade (DGFT) in terms of paragraph 2.5 of the Foreign Trade Policy (PRC) in its meeting No.41/AM12 held on 21.02.2012. The PRC noted that the revalidation of various authorizations is granted in most exceptional circumstances only where the authorizations had expired in the custody of Government authority like DGFT/Customs. The aforesaid circumstances do not exist in the instant case. The PRC also noted that revalidation was not a matter of right and that the firm earlier did not accept the reduced qty. of inputs and despite having provided a validity of 30 months they did not undertake imports. It was noted that all authorizations pertain to the period of 1996 and 1997 and that at this distance of time, there was no merit to revalidate these 4 authorizations. The PRC therefore rejected the request. A copy of the minutes of PRC meeting is enclosed. The same can also be downloaded from the DGFT website - http://dgft.gov.in. Yours fai....
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....est, the Court has to respect such a decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the judicial review." "16. The power of the Court under writ jurisdiction has been discussed in Asif Hameed and Others. v. State of Jammu and Kashmir and Others (1989 Supp (2) SCC 364) in paras 17 and 19, which read as under: '17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and ....