TaxTMI 
TaxTMI 
2000 (1) TMI 65
X X X X Extracts X X X X
X X X X Extracts X X X X
....nents etc. required for the product to be exported, duty free. The said advance free licence is freely transferable after the export obligation is fulfilled. 6.According to the respondents, in terms of paragraph 127(VII) of Handbook of Procedure, 1992-97, Volume-I dealing with Duty Exemption Scheme, upon endorsement of transferability, a duty free licence remains valid for the balance period of its validity or for a period of six months from the date of endorsement whichever is later. 7.The appellant allegedly had fulfilled its export obligations within a period of six months. It also obtained an endorsement of transferability. However, it could not utilise the said Advance Licence fully allegedly because of adverse market condition between the period 1994 and middle of July, 1996. 8.Keeping in view various representations filed by the exporters, the Central Government issued a Public Notice bearing No. 38/(PN) 1997-2002, dated 1st September, 1997, the relevant provision whereof reads thus :- "(i) .......... (ii) .......... (iii) Where no export and im....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Central Government can extend the validity period of the Advance Licence only in the case of actual user and thereby not extending the benefit to them who intended to transfer the same or a part of it, evidently on receipt of consideration thereto. 15.Our attention has further been drawn to a circular letter dated 1st October, 1999, and it was submitted on the basis thereof that those who could not complete their export and import obligation, are still free to do so up to 30-11-1999. The said Public Notice bearing No. 32(PN)1997-2002 reads thus :- "Attention is invited to Public Notice No. 67, dated 31st December, 1997 according to which in respect of Advance Licences issued as per EXIM Policy 1992-97, where export obligation had been completed on or before 31st December, 1997 but licences had expired without effecting the imports, a provision was made for endorsement of transferability in accordance with the conditions as laid down therein. Several representations have been received to the effect that in some cases the documents were submitted for grant of endorsement of transferability under the above stated Public Notice but the endorsement could not be effected because....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tificate. In such cases the exporter shall be required to submit a certificate from concerned Custom Authority certifying such delays. Licensing Authorities shall, thereafter, complete the formalities for endorsement of revalidation and transferability latest by 30-11-1999. However, no revalidation shall be granted where endorsement of transferability has already been affected." 16.The contention of Mr. Mitra is that the public notice dated 1st September, 1997 has given rise to hostile discrimination. According to Mr. Mitra, learned Senior Counsel appearing for the appellants, a two fold classification has been made of licence holders who have advance licences issued under the same policy i.e. import-export policy 1992-97. Licence holders who have their licences issued prior to 28th February, 1995 and who after fulfilling their obligation did not obtain the endorsement of transferability of their respective licences will be entitled to have their licences revalidated till 31st December, 1997. Whereas licence holders who have their licences issued prior to 28th February, 1995 and who after fulfilling their export obligations have obtained the endorsement of transferability of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce holders who have fulfilled their export obligation can transfer the licences upon obtaining an endorsement thereon for the balance period of the validity of the licence or for a period of 6 months from the date of endorsement whichever is more. In respect of such licence holders who have fulfilled their export obligation, no extension has been allowed in terms of the notification dated 1st September, 1997. Extension has only been granted to such licence holders who have not completed their export obligation. 23.Those licence holders who have obtained the endorsement of transferability are entitled under the policy to extension of time for a period of 6 months from the date of endorsement for completing the import (duty free) or to transfer the same. Those licence holders who have not obtained the endorsement of transferability upon completion of this export obligation are not so entitled to the extended period of six months. 24.The very object of the EXIM Policy appears to be to encourage export and that object is sought to be achieved by enlarging the time to those licence holders who have not completed their export obligation by revalidating their licences. In the case o....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the same must be held to be illegal from its inception and it would have been permissible for his client to transfer the said Advance Licence and/or utilise the same for importing raw materials etc. by itself. 29.In this situation, contends Mr. Mitter that depite coming into force of new Exemption Policy for the years 1997-2002 the old Policy will govern the field in the case of his client. 30.We, however, are unable to accept the said contention of the learned Counsel. In terms of the provision of the Customs Act, 1962 a person carrying on business in export and import is entitled to pay customs duty. Exemption in respect of payment of customs duty either for the purpose of export or import or for both can be issued only in exercise of the statutory power conferred on the appropriate authority in terms of sub-section (1) of Section 25 of the said Act but such exemption is granted for a limited period depending upon the tenure of the EXIM Policy. 31.The period of relaxation in the matter of payment of customs duty, therefore, depends upon the tenure of the validity of the EXIM Policy. Once a new policy comes into being, exemption can be granted or claimed in terms of the....