TaxTMI 
TaxTMI 
1990 (5) TMI 43
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....ume II contain the policy and procedure in respect of Items under Export licensing. As would appear from paragraph 1(2) of Chapter I of Volume I, the Government reserves the right to make amendments/changes in this Policy, which may become necessary in public interest from time to time during the above period of three years. But such Amendments etc. will have to be notified, as usual, by means of public notices/amendment orders etc. issued by the Chief Controller of Imports and Exports from time to time and it is provided further that the provisions contained in these two Volumes "are subject to such amendments or changes as and when notified." 3. The facts, material for the purpose of the case, lie in a narrow compass and the question involved is also a short one. The petitioner company is a Small Scale Industry Unit provisionally registered with the Directorate of Cottage & Small Scale Industries of the Government of West Bengal. As would appear from paragraph 60, Chapter V of Volume I, the petitioner is eligible for availing of the Open General Licence for import if the Sponsoring Authority has certified it for the purpose. As would appear from Volume II, being the Hand Book ....
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....ner that its "request for registration of import contracts "could not be acceded to" as "it has been decided by the office of the Development Commissioner for Iron & Steel, Calcutta, that import of defectives/seconds as per items under Sl. No. 849 (i) of Appendix-6, List 8, Part I, will not be allowed for actual use in the manufacture of Galvanised Sheets." After hearing Mr. Bhola Nath Sen, the learned Counsel for the petitioner and Mr. L.N. Chatterjee, the learned Counsel for the respondents and after giving the matter such consideration as it deserves, I am of the view that the stand taken by the Respondents in Annexure E of the petition cannot be countenanced and the order of the Regional Development Commissioner declining registration of the import contracts cannot be maintained and that for more reasons than one. 6. As I have already noted, in accordance with the provisions of the "Import and Export Policy, April 1988 - March 1991, declared by the Government, the petitioner is entitled to import defectives I seconds under Open General Licence as per Entry No. 849(i) of Appendix-6, List-8, Part I. If on such declaration/representation being made by the Government, the petiti....
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....ention of Mr. Sen that the respondents were wrong in refusing to register the import contracts of the petitioner. Here are the reasons. 8. The provisions of paragraph 31 only provide that the importers "shall be required to register their import contracts with the Development Commissioner" "within thirty days from the date of entering into such contracts, or the date of shipment of goods, whichever is earlier", without providing as to whether, and if so, under what circumstances, the Development Commissioner may refuse registration. Going by the letters of the provisions, we do not find anything to vest the Development Commissioner with any discretion to register or not to register. If any public functionary is ex facie not vested with any discretion, in respect of his public functions, it would be against all canons of construction to invest him with any power to act in his discretion on the ground if any supposed expediency or otherwise. 9. A registering authority may obviously refuse registration of a document on the ground of any formal defect, when the formalities, required to be complied with as conditions precedent, are not complied, e.g. want requisite stamps or certi....
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....mposed on the exercise of such right, but only by clear legislative provisions. The provisions of paragraph 31, assuming them to be law, do not expressly, or even by necessary implication, provide for refusal of registration of contracts, if the requisite formalities are complied with. Therefore, there being no such clear provisions providing for refusal of registration, refusal to register the import contracts would be clearly ultra vires. 12. The reasons put forward by the Regional Development Commissioner in Annexure "E" to the petition dated 27th June, 1989, for declining to register the import contracts is that "it has been decided by the Office of the Development Commissioner for Iron & Steel, Calcutta, that import of defectives/seconds as per Item under Sl. No. 849(i) of Appendix-6, List 8, Part I will not be allowed for actual use in the manufacture of Galvanised Sheets". As already noted, under the provisions of the declared Import and Export Policy, 1988-1991, the petitioner is entitled to import defective/seconds. It is true that, as already noted, and as would appear from paragraph 1(2) of Chapter I of the Import and Export Policy, 1988-1991, (Volume I, Part I), "the....