Madras High Court
Hoewitzer Organic Chemical Co vs The Director General Of Foreign Trade on 12 April, 2013
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.4.2013
CORAM:
THE HONOURABLE MR.JUSTICE R.SUDHAKAR
W.P.No.24371 of 2012
Hoewitzer Organic Chemical Co.
Door No.19, 1st Cross Street
VOC Nagar East, Chennai 600 102
rep. by its Proprietor, Sanjay Thanvi .. Petitioner
Vs.
1. The Director General of Foreign Trade
Ministry of Commerce
Udyog Bhawan, New Delhi 110 011.
2. The Deputy Director General of Foreign Trade
Office of the Director General of Foreign Trade
Ministry of Commerce, Udyog Bhawan
New Delhi 110 011.
3. The Foreign Trade Development Officer
Office of the Director General of Foreign Trade
Ministry of Commerce, Udyog Bhawan
New Delhi 110 011.
4. The Commissioner of Customs (Seaports Exports)
No.33, Rajaji Salai, Customs House
Chennai 600 001.
5. The Assistant Commissioner of Customs (DFIA)
No.33, Rajaji Salai, Customs House
Chennai 600 001. .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India for issuance of a writ of Mandamus directing the respondents herein to accept the transferable DFIA license issued under SION E1 & E5 as clarified in circular dated 31.7.2008 read with policy circular No.72/2008, dated 24.3.2009 issued by the first respondent herein, which permits the import of lactose as an alternative for sugar and without application of the circulars dated 23.9.2010 and 31.1.2011 issued by the first respondent herein, by holding that the rights accrued under the license on the date of its issue shall govern the import of goods permitted under the license within the validity period of the said license and consequently direct the 5th respondent to assess and clear the impugned goods covered under Bill of Entry No.7590365, dated 6.8.2012 against the transferred license by extending the benefit of Notification No.98/2009, dated 11.9.2009 as amended. (amended by order dated 12.4.2013 made in M.P.No.1 of 2013)
For Petitioner : Mr.Arvind P.Datar,
Senior Counsel
for Mr.N.Viswanathan
For Respondents : Mr.D.Vijayakumar, ACGSC
for respondents 1 to 3
Mr.T.S.Rajamohan
Standing Counsel
for respondents 4 and 5
ORDER
The petitioner seeks issuance of a writ of Mandamus directing the respondents herein to accept the transferable DFIA license issued under Standard Input Output Norms (SION) E1 & E5 as clarified in circular dated 31.7.2008 read with policy circular No.72/2008, dated 24.3.2009 issued by the first respondent herein, which permits the import of lactose as an alternative for sugar and without application of the circulars dated 23.9.2010 and 31.1.2011 issued by the first respondent herein, by holding that the rights accrued under the license on the date of its issue shall govern the import of goods permitted under the license within the validity period of the said license and consequently direct the 5th respondent to assess and clear the impugned goods covered under Bill of Entry No.7590365, dated 6.8.2012 against the transferred license by extending the benefit of Notification No.98/2009, dated 11.9.2009 as amended.
2. The brief facts culled out from the pleadings of the parties are as under. The petitioner is a proprietorship concern. They import various items used in pharmaceutical, beverage, food and other industries. In the course of business, they have entered into an agreement with one Kawarlal & Co., Chennai for purchase of 400 Kgs. of Lactose. The said Kawarlal & Co. imported a consignment of Lactose and the said consignment was kept in the Customs Warehouse under Warehouse Bill of Entry No.6689020, dated 30.4.2012 with In-bond Reference No.2000281547, dated 11.5.2012. The said Kawarlal & Co. sold the consignment under In-bond Sales Invoice No.Bond/2012-13/000052, dated 4.8.2012. On purchase of the Lactose through In-bond sales, the petitioner filed Ex-bond Bill of Entry No.7590365, dated 6.8.2012 before the Customs Department, Chennai for clearance of the goods under DFIA License No.0710070929 stating that it has been duly endorsed for transferability by the competent authority in terms of the Foreign Trade (Development & Regulation) Act, 1992. It is under this transferred DFIA License that the goods are sought to be cleared.
3. Insofar as the license in issue is concerned, the said DFIA License No.0710070929, dated 15.4.2010 was originally issued to Britannia Industries, Bangalore, as actual manufacturer. On completion of the export obligation, Britannia Industries obtained an endorsement with regard to transferability on 6.12.2010. Thereafter, on 17.12.2010, Britannia Industries transferred the said license to Rishab Enterprises, Chennai for valuable consideration. The said license was thereafter transferred from Rishab Enterprises to Golcha Enterprises on 4.1.2012. Later on Golcha Enterprises transferred the said license in favour of the petitioner on 3.2.2012.
4. The goods in question, namely Lactose, were consigned in favour of Kawarlal & Co., Chennai, as stated earlier, under Bill of Lading dated 14.4.2012 and the said company filed In-bond Bill of Entry on 30.4.2012. On 4.8.2012, the In-bond Sales Agreement was entered into between Kawarlal & Co. and the petitioner for sale of 400 Kgs. of Lactose and on the same day, the In-Bond Sales Invoice was raised. On 6.8.2012, an Ex-bond Bill of Entry No.7590365 was filed and the Customs Department raised the following query on 6.8.2012: "Please refer to the Circular No.13, dated 31.1.2011 (DGFT). The import of Lactose as alternative input is not allowed under DFIA." Challenging the said stand of the department refusing to allow clearance, as above, the writ petition is filed.
5. Mr.Arvind P.Datar, learned Senior Counsel appearing for the petitioner contends that the Policy Circular No.13, dated 31.1.2011 will apply to an import license issued on and after the said date and it will not affect the rights accrued by virtue of the license already granted, more particularly in a case where export obligation has been discharged and transferability has been endorsed.
6. To bolster the argument that the rights will accrue to the license holder based on the date of issuance of the license and the subsequent clarification or change in policy will have no bearing on the existing right under the license granted, the learned Senior Counsel placed reliance on the following decisions:
(i) S.B. International Ltd. v. Assistant Director General of Foreign Trade, 1996 (82) ELT 164 (SC). The said case relates to a claim under duty exemption scheme and the date on which it becomes effective. The issue that was clarified is that the norms in vogue on the date of issue of license govern the license. In paragraph (8) of the said decision, the Supreme Court held as under:
"8. The first question in these appeals is whether a vested right accrued to the appellant for issuance of advance licences as per the value addition norm in vogue on the date of filing of the said applications the moment it made those applications and whether any subsequent change in policy effected before the issuance of licences, is not applicable to such licences. For answering this question, one has to look to the policy itself, the material clauses of which have already been set out. The said provisions make it clear that the object behind the Scheme is to enable the exporter to import raw materials, components etc. required for the purpose of producing goods for export. It is a facility provided by the Government an incentive. There is no right to advance licence apart from the policy. No citizen has a fundamental right to import, much less import free of duty. By granting the advance licence, the licensing authority tells the licensee I am permitting you to import raw material, components etc. of a particular value free of duties but you must export goods of a particular value (determined as per value addition norm in vogue on the date of licence) within a particular date. If you fail to do so, you will be liable to levy of penalties and other action according to law. The duty-free import of raw materials etc. is permitted to enable the exporter to sell his goods abroad at a more competitive price, thereby fetching precious foreign exchange for the country. Mere making of an application does not create any right in the applicant since he has no pre-existing right to such licence. His right is only that which is given by the policy. The situation could have been different if the policy had said that a person exporting goods of a particular value shall be entitled to an import licence of a particular value; in such a case, the export of goods can be said to create a right in the applicant to get an import licence of the specified value. Here is a case, where one has to ask for an import licence promising to export goods of a particular value within a particular time. It is difficult to appreciate how can it be said in such a situation that mere filing of an application creates a vested legal right to obtain a licence according to the value addition norm in vogue on the date of the application. It is the date of licence that is relevant and not the date of application therefor. It is obvious that the norm (value addition norm) in vogue on the date of grant of licence shall govern the licence. The mere fact that the authorities have a discretion to take into account the exports made after the date of application for advance licences makes no difference to this position; it is in the nature of yet another concession. What is relevant is that the licence granted under Chapter VII of the policy is an advance licence. It is granted in advance of export rather to enable the export. The theory of a vested right accruing to the applicant to get a licence as per the norms in force on the date of application is inconceivable in such a situation unless, of course, the policy itself says so."
(emphasis supplied)
(ii) A Division Bench of the Bombay High Court in Sonia Fisheries v. Union of India, 1997 (90) ELT 22 (Bom.) reiterated the above legal position following the Apex Court decision, referred to above. It was held in paragraphs (9) and (10) as under:
"9. Considering the aforesaid paragraphs of the Import & Export Policy, it is apparent that to the Petitioners quantity based Advance Licence was given on the condition of fulfilling their export obligations as stated in the Advance Licence. With regard to export there is no dispute. Paragraph 51 of the Export & Import Policy specifically provides that in respect of quantity based Advance Licences for which standard input-output norms have not been published, the quantitative norms will be as specified by the competent authority. On the basis of the said policy after considering the petitioners Application and after verifying the facts from them the Petitioners were given Advance Licence by reducing the quantity and also amount. One of the conditions of the said Licence is as under :
'(i) This licence shall be subject to the conditions in force relating to the goods covered by the licence as described in the relevant import Trade Control Policy Book, or any amendment thereof made upto and including the date of issue of the licence, unless otherwise specified.' This term itself indicates that the relevant date for grant of Advance Licence is the date of issue of licence and the licence was only subject to the conditions relating to the goods covered by the licence or amendment thereof made up to and including the date of issue of the licence unless otherwise specified. Therefore, it cannot be said that even though the Petitioners have complied with their obligation of export, when the Petitioners asked for endorsement of transferability on the basis of complying with the conditions of exporting the goods, the authority was entitled to withhold or suspend it and change the material terms of the licence, which permitted the Petitioners to import duty free goods as per the advance licence. It cannot be said by any stretch of imagination that the norms published on 20th January, 1995 would have retrospective effect so as to permit the authorities to cancel or modify the Advance Licence granted prior to the said date, that too in cases where the Petitioners have fulfilled their export obligations. Paragraph 51 of the Export & Import Policy itself provides that where norms are not fixed the quantity norms will be as specified by the competent authority and in the present case the Competent Authority after considering the Petitioners application has granted Advance Licence in September, 1993. That licence could not be modified on the basis of the norms passed on 20th January, 1995. This would be totally arbitrary action. That norms cannot have any retrospective effects so as to adversely affect the rights granted to the Petitioners under Licence. The norms prescribed will take effect only from the date of its publication i.e., from 20th January, 1995 and not from the earlier date.
10. The learned Counsel for the Petitioners for this purpose relied upon the observations made by the Supreme Court in the case of S.B. International Limited Etc. v. Asstt. Director General of E.T. & Ors. Etc., reported in 1996 (82) ELT 164 (SC) = 1996 (8) CXLT (SC) Misc-1. In that case the Court was required to consider whether a vested right accruing to the Appellant for issuance of advance licences as per the value addition norm in vogue on the date of filing of the applications and whether any subsequent change in policy effected before the issuance of licences, is not applicable to such licences. In that context the Supreme Court observed as under:
'By granting the advance licence, the Licensing authority tells the licensee I am permitting you to import raw material, components etc., of a particular value free of duties but you must export goods of a particular value (determined as per value addition norm in vogue on the date of licence) within a particular date. If you fail to do so, you will be liable to levy of penalties and other action according to law. The duty free import of raw materials etc., is permitted to enable the exporter to sell his goods abroad at a more competitive price, thereby fetching precious foreign exchange for the country. Mere making of an application does not create any right in applicant since he has no pre-existing right to such licence.' Thereafter the Court pertinently observed as under:
'It is the date of licence that is relevant and not the date of application therefor. It is obvious that the norm (value addition norm) in vogue on the date of grant of licence shall govern the licence.' It is, therefore, obvious that grant of Advance Licence depends upon the policy prevailing as on the date of such grant. Once a licence is granted, it could not be revoked or modified merely on the ground that the value addition norm was changed. Further, even the new policy and the norms do not provide that Advance Licences granted earlier should be modified accordingly."
(emphasis supplied)
7. The learned Senior Counsel appearing for the petitioner relied upon a decision of the Supreme Court in Jain Exports (P) Ltd. v. Union of India, 1992 (61) ELT 173 (SC) to canvas the plea that the import policy prevalent at the time of issuance of the license would apply to goods covered by imports made under that license and the subsequent change in policy will be of no consequence. A similar view was taken by a Division Bench of the Bombay High Court in Ashok Kumar Jain v. Union of India, 2010 (253) ELT 767 (Bom.). In paragraph (4) of the said decision, the Division Bench, after referring to the decision of the Supreme Court in Jain Exports (P) Ltd. Case, supra, observed as follows:
"4. Mr.Jetly learned counsel appearing for the Revenue submitted that the importing question would be governed by the import and export policy applicable for the year AM 91-94 as the import had taken place in June 1992 i.e. after expiry of AM 1988-91. He submitted that though REP licence was issued when AM 1988-91 was in force, since the import had taken place in June 1992 the REP licence as well as import made under the REP licence would be governed by the import and export policy in force on the actual date of import and not on the date when the REP licence was issued. Per Contra, Mr.Rana submitted that import would be governed by import export policy AM 1988-91. In support of his submission he referred to and relied upon by a decision of the Supreme Court in Jain Exports (P) Ltd. Vs. Union of India 1992 (61) ELT 173 (SC) = 1988 3 SCC 579. In that case, two consignments of natural coconut oil were imported from Srilanka and arrived at port of destination on 22nd September 1981 and 10th September 1982 respectively. The import was effected in pursuance of a licence which was issued in the year 1980-81 but the goods were actually imported after the policy had expired and new policy had come into force. In paragraph no.2 of the decision, Supreme Court posed the questions which had arisen for its consideration. The question no.1 was '(1) The import policy of which year would be applicable to the present case - the period during which the licences were issued or the time when the import actually took place' In paragraph no.3 of the decision, the Supreme Court held that the High Court had come to the correct conclusion to the terms of import policy of 1980-81 (i.e. period during which the licence was issued) would apply. In view of the decision of the Supreme Court, we have no doubt that the import in question which was effected in pursuance of a REP Licence dated 13th December 1990, would be governed by the import export policy of AM 1988-91."
8. Based on the above said decisions, it is contended by the learned Senior Counsel that in the case on hand the license was originally issued to Britannia Industries; the export obligation has already been discharged; the license has been endorsed for transferability; and they are eligible to import items in terms of the license and the DGFT clarification dated 31.7.2008.
9. Another point canvassed by the learned Senior Counsel appearing for the petitioner is the endorsement in the license, which reads as follows:
"The licence shall be subject to the conditions in force relating to the goods covered by the licence and the class of importers as described in the relevant Export-Import Policy and Handbook of procedures, or any amendment thereof made upto and including the date of issue of the licence, unless otherwise specified."
It is pointed out that the Import-Export Policy and Handbook of Procedures that covers the license is of the year 2009-2014 and the clarification issued by the DGFT dated 31.7.2008.
10. Mr.D.Vijaykumar, learned counsel for respondents 1 to 3 referred to the Public Notice No.84/2009-14, dated 23.7.2010, clarification dated 23.9.2010 and the Policy Circular No.13, dated 31.1.2011 to state that the imports in the present consignment took place only after the said public notice, clarification and policy circular have been issued and therefore the license will not be valid for the import in question and clearly the query raised by the department is justified.
11. In reply to the said contention, Mr.Arvind P.Datar, learned Senior Counsel for the petitioner submitted that the conditions imposed vide the Public Notice dated 23.7.2010, clarification dated 23.9.2010 and the Policy Circular dated 31.1.2011 will apply only to a license issued on and after that date and it will not effect the validity of the license in question issued on 15.4.2010, which has got validity up to 14.4.2012.
12. On a plea made by the learned Additional Central Government Standing Counsel appearing for respondents 1 to 3 that the In-bond Sale Invoice is dated 4.8.2012, which is after the expiry of the license period, the learned Senior Counsel appearing for the petitioner stated that the Bill of Lading was issued on 14.4.2012 in favour of Kawarlal & Co., and In-bond Bill of Entry was filed on 30.4.2012 and the import is saved by paragraph 9.11A read with paragraphs 2.12.1 and 2.12.2 of the Handbook of Procedures, 2009-2014, which read as follows:
"9.11A Date of shipment/dispatch for imports will be reckoned as under:
Mode of Transportation Date of Shipment/Dispatch
(i) By Sea The date affixed on the Bill of Lading
(ii) By Air Date of relevant Airway Bill provided this represents date on which goods left last airport in the country from which the import is effected.
(iii) From land-locked countries Date of dispatch of goods by rail, road or other recognised mode of transport to consignee in India through consignment basis.
(iv) By Post Parcel Date stamp of office of dispatch on the packet or dispatch note.
(v) By Registered Courier Service Date affixed on Courier Receipt/Waybill
(vi) Multimodal transport Date of handing over goods to first carrier in a combined transport Bill of Lading.
....
2.12.1. Where an Authorisation expires during the month, such Authorisation shall be deemed to be valid until last day of concerned month. This proviso would be applicable even for a revalidated Authorisation.
2.12.2. Validity of an import Authorisation is decided with reference to date of shipment/dispatch of goods from supplying country as given in Paragraph 9.11A of HBP v1 and not the date of arrival of goods at an Indian port"
13. The learned Senior Counsel for the petitioner also referred to In-bond sale invoice dated 4.8.2012 and pointed out that it is referable to the Bill of Entry dated 30.4.2012.
14. The sum and substance of the case of the petitioner and the counter made by the respondents is based on the various communication, clarifications and circulars issued by the DGFT from time to time and a reference to the following circulars is relevant for the purpose of deciding this case:
(i) Clarification No.01/94/180/151/AM 09/PC 4, dated 31.7.2008:"No.01/94/180/151/AM 09/PC 4
GOVERNMENT OF INDIA MINISTRY OF COMMERCE DIRECTORATE GENERAL OF FOREIGN TRADE UDYOG BHAVAN, NEW DELHI 110 011 Dated : 31.7.2008 To:
Commissioner of Customs (Exports) Ministry of Finance Department of Revenue 33, Rajaji Salai, Customs-House Chennai 600 001.
Kind Attention: Shri C.Rangaraju, Joint Commissioner of Customs, Group 7 DEEC/ Subject: Clarification on import of Lactose (Pharma Grade) in respect of DFIA 0310434384 dated 28.6.07 issued to M/s.Laxmi International and transferred in the name of M/s Kawarlal & Co., Chennai regarding.
Sir, With reference to your letter No.S Misc/425/2006-Gr.7-DEEC dated 16.7.08 on the above mentioned subject, I have been directed to inform you that the matter was examined in consultation with the Administrative Ministry i.e., Directorate of Sugar, Department of Food and Public Distribution, who, in turn sought inputs from Technical authorities such as National Sugar Institute, Powai (Mumbai) etc.
2. Taking into account the inputs received from the aforesaid Technical authorities and the provisions of Customs Circular No.46/2007-Cus. Dated 20.12.07 to be read with inputs allowed under relevant DFIA for import of Sugar (as per relevant SION) as well as the contents of paragraph 4.55.3 of HBP Vol.1, I have been directed to inform you that Sugar in the form of Lactose (Pharma Grade) can be imported against the aforesaid DFIA, referred in your letter.
This issues with the approval of competent authority."
(ii) DGFT Policy Circular No.72/2008, dated 24.3.2009:
"POLICY CIRCULAR NO.72 (RE-08)/2004-2009 Dated 24.3.2009 To All Regional Authorities;
All Commissioners of Customs;
Trade and Industry Subject: Importability of Alternative inputs allowed as per SION under DFIA Scheme.
Representations have been received from the trade and industry that a doubt has arisen in the field formations of customs on the issue of allowing alternative inputs as per SION under DFIA scheme, even if the input mentioned in the SION, has not been specifically utilized in the manufacture of the exported product.
2. The matter was examined in detail and it has been decided to clarify to all concerned that since the objective of SION is to allow duty free import of the inputs which are actually used or are capable of being used in the export product, the exporter has the flexibility to import the alternative input/product mentioned in the SION.
This issues with the approval of DGFT.
Sd/-
(Tapan Mazumder) Joint Director General of Foreign Trade"
(iii) Public Notice No.84/2009-14, dated 23.7.2010:
"Public Notice No. 84/2009-14, Dated 23.7.2010 In exercise of the powers conferred under Paragraph 2.4 of the Foreign Trade Policy, 2009-14 and Paragraph 1.1 of the Handbook of Procedures (Vol.I), the Director General of Foreign Trade hereby makes the following amendments/corrections in the Handbook of Procedures, Vol. 2, 2009-2014, as amended from time to time.
2. In the statement of Standard Input Output Norms (SION) as contained in the Handbook of Procedure (Vol. 2), 2009-2014, as amended from time to time, amendments at appropriate place as mentioned in ANNEXURE A to this Public Notice are made.
3. This issues in Public interest.
sd/-
DIRECTOR GENERAL OF FOREIGN TRADE and EX-OFFICIO SPECIAL SECRETARY TO GOVERNMENT OF INDIA (Issued from File No. 01/85/162/412/AM10/DES.VI) Annexure A to the Public Notice No.84/2009-2014 Dated: 23.07.2010 AMENDMENTS/CORRECTIONS In the existing SION E-1 and SION E-5, note be included as under:-
Note for E-1:- Import item at Sl. No.1, 2 & 3 shall be allowed with actual user condition & with accountability of actual use on the export side.
Note for E-5:- Import item at Sl. No.1, 2, 3, 4 & 5 shall be allowed with actual user condition & with accountability of actual use on the export side."
(iv) Clarification F.No.01/94/180/141/AM9/PC-4/DES.VI/394, dated 23.9.2010:
"GOVERNMENT OF INDIA MINISTRY OF COMMERCE & INDUSTRY DIRECTORATE GENERAL OF FOREIGN TRADE UDYOG BHAVAN, NEW DELHI.
F.No.01/94/180/141/AM9/PC-4/DES.VI/394 dated 23.9.2010 To:
M/s.Kawarlal & Co.
27, Raghunayakulu Street Chennai 600 003.
Subject: Import of Lactose under DFIA reg.
Sir, I am directed to refer to your letter dated 2.9.2010 on the above mentioned subject and to inform that in its meeting held on 10.6.2010, Norms Committee decided that no further import of Lactose may be allowed as an alternate input to sugar under SION E-1 & E-5 till Norms Committee is in a position to check accountability condition of Lactose usage in export product and quantify the same.
Letter dated 17.6.2010 issued to Customs is based on the above decision."
(v) Policy Circular No.13, dated 31.1.2011:
"Policy Circular No.13, Dated 31.1.2011 To All Regional Authorities All Customs Authorities Subject: Import of inputs under Advance Authorisation (AA) and Duty Free Import Authorisation (DFIA) issued SIONs E-1 & E-5 reg.
Attention is invited to the Policy Circular No.72(RE-08)/2004-2009 dated.24.03.2009 regarding importability of alternative inputs allowed as per SION under DFIA Scheme.
2. The Standard Input-Output Norms (SION) for Biscuits (with or without dry fruits) are at Sl. No. E-5 and for Assorted Confectionery at Sl. No. E-1. The import of inputs allowed allowed under SION E-5 and SION and SION E-1 do not include Tapioca Starch, Wheat Gluten, and Lactose/Fructose/Maltose/Mannitol/ Sodium Saccharin/Artificial sweetening Agents.
3. Therefore, (i) import of Tapioca Starch and Wheat Gluten as alternative inputs against import item No. 1 of SION E-5 and, (ii) import of Lactose/ Fructose/Maltose/Mannitol/Sodium Saccharin/ Artificial Sweetening Agents, as alternative inputs against import items No. 2 of SION E-5 and import item No. 1(a) of SION E-1, is not to be allowed, under Advance Authorisations and Duty Free Import Authorisations issued against SIONs E-1 & E-5.
This issues with the approval of Director General of Foreign Trade.
Sd/-
( Vibha Bhalla) Joint Director General of Foreign Trade"
15. In the present case, it is not in dispute that the original licence was issued on 15.4.2010 and its validity is for a period of two years ending 14.4.2012. The transferability endorsement was made on 6.12.2010. Therefore, the license is valid till 30.4.2012 for shipments or imports made under the said license, in terms of paragraph 9.11A read with paragraphs 2.12.1 and 2.12.2 of the Handbook of Procedures, 2009-2014 . Hence, the contention of the respondent/department that the imports are not covered by a valid license cannot be countenanced. It is also not in dispute that the Bill of Lading in this case was issued on 14.4.2012 and In-bond Bill of Entry was filed on 30.4.2012. Therefore, the license covers the import and there cannot be any dispute on its validity in relation to the import.
16. Insofar as the issue relating to the applicability of the Public Notice dated 23.7.2010, the Clarification dated 23.9.2010 and the Policy Circular dated 31.1.2011 is concerned, the same may not apply to a valid license, the transferability of which is endorsed. It is to be noticed that the clarification issued by the Ministry of Commerce dated 31.7.2008 and the DGFT Policy Circular dated 24.3.2009, which were in force prior to issuance of license in question dated 15.4.2010, will be made applicable to the license, as it extends the benefits of flexibility to import the alternative input/product mentioned in the SION and that appears to be the main tenor of the petitioner's plea seeking release of the Lactose stating that the clarification and the circular which were in force at the time of issuance of license will be applicable to the goods imported and not the subsequent clarifications.
17. The said contention of the learned Senior Counsel appearing for the petitioner is no doubt justified in view of the decision of the Supreme Court in S.B. International Ltd. case, supra, which has been extracted above, wherein it has been held in categoric terms that the norms that are applicable on the date on which the license is issued will be valid in respect of goods imported under the said license.
18. The above said view of the Supreme Court has been followed by the Division Bench of the Bombay High Court in the case of Sonia Fisheries, supra, wherein it was emphatically held that the policy prevailing on the date of grant of advance license will apply. A similar view was taken by the Supreme Court in Jain Exports (P) Ltd. case, supra.
19. Since the license in this case was issued on 15.4.2010 and on the date on which the license was issued the clarification dated 31.7.2008 and the DGFT Policy Circular dated 24.3.2009 were in force, the license would get the benefit of the said clarification and the DGFT Policy Circular. Subsequent change in policy by way of Public Notice No.84/2009-14, dated 23.7.2010, clarification dated 23.9.2010 and the Policy Circular No.13, dated 31.1.2011 will have no consequence in respect of the license that has already been issued. Accordingly, the said issue is decided in favour of the petitioner.
20. Insofar as the validity of the import is concerned, which is questioned by the respondents on the ground that the In-bond Sales invoice is dated 4.8.2012 and therefore the import is not valid, I am unable to accept such a plea in view of the specific provision contained in paragraph 9.11A read with paragraphs 2.12.1 and 2.12.2 of the Handbook of Procedures, 2009-2014, referred to above. Therefore, the Bill of Lading issued on 14.4.2012 coupled with the In-Bond Bill of Entry 4.8.2012 will cover the import in question in terms of the above paragraphs of the Handbook of Procedures, 2009-2014 and the endorsement made by the Assessing Authority refusing to grant clearance of the goods is bad.
For the foregoing reasons, the writ petition is allowed as prayed for. No costs. Consequently, M.P.No.1 of 2012 is closed.
sasi