Punjab-Haryana High Court
M/S Eastman Industries Ltd vs Union Of India And Others on 13 November, 2019
Bench: Rakesh Kumar Jain, Suvir Sehgal
CWP No.8498 of 2017 {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No.8498 of 2017
Date of decision:13.11.2019
M/s Eastman Industries Ltd. ... Petitioner
Vs.
Union of India and others ... Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
HON'BLE MR. JUSTICE SUVIR SEHGAL
Present:- Mr. Jagmohan Bansal, Advocate
for the petitioner.
Mr. P.C.Goyal, Advocate with
Ms. Arti Goyal, Advocate
for the respondents.
RAKESH KUMAR JAIN, J. (ORAL)
The petitioner has prayed for the issuance of a writ in the nature of certiorari for quashing the order dated 10.03.2017 (Annexure P-8) passed by the Joint Director General of Foreign Trade, Ministry of Commerce and Industry, Government of India.
In short, the petitioner had applied for The Duty Free Import Authorisation (in short "DFIA") Licence on 02.06.2015 which was issued by respondent No.3 bearing DFIA Licence No.3010103853 on 03.10.2016 and on the basis of said licence, the petitioner was entitled to import various items including Natural Rubber. The case of petitioner is that during the period from June 2015 to October 2015, the petitioner had exported 1 of 5 ::: Downloaded on - 08-12-2019 03:00:40 ::: CWP No.8498 of 2017 {2} Automobile Tyre reinforced with Nylon Tyre Cord Warp Sheet etc. by way of 31 shipping bills. The petitioner was thus entitled to import Natural Rubber in view of standard input and output norms (SION) in which it is so provided and is reproduced as under:-
Sr. No. Export Item Import Item
Name Quantity Name Quantity Allowed
A1667 Automobile 100 kgs 1(a) Natural Rubber 44 kg.
Tyres reinforced with (b)Synthtic rubber (PBR/SBR-1502/1712)
Nylon tyre-cord warp 8.6 kg.
sheet or rayon tyre c)VP Latices 0.4 kg
cord warp sheet 2 Carbon Black 23 kg
3Nylon/Tyre Yarn/Cord/Warp
Sheet/Fabric (both dipped and undipped) 13 kg.
4. Bead wire 4 kg 5 Pigments/chemicals the following:-
(a) Rubber chemicals (Antioxidants, Accelerator, Antiozonant, Retarders and peptizers). (Import of antioxidants however, shall not exceed 1 kg for each 2 kgs of Rubber Chemicals allowed) 2.00 kg
(b) Zinc oxid 2.00 kg
(c)All other miscellaneous materials/chemicals viz, micro-crystalline wax, paraffin wax, pigments and softeners, stearic acid solvents, plasticisers synthetic resins, bonding/coupling agents, activators and fillers Dip Chemicals (excluding resorcinol) mould release agents, tackifiers and catalysts and syloff 7.40 kgs
d) Resorcinol 0.10 kg
e) Insoluble Sulphur 0.50 kg
6 Furnace Oil/L.S.H.S. 23.08 liters 2 of 5 ::: Downloaded on - 08-12-2019 03:00:41 ::: CWP No.8498 of 2017 {3} Notes: 1. In case of Bus/ Truck tyres, out of the total quantity 8.6 kgs, the quantity of SBR allowed is upto 3 kgs (maximum) and the quantity of PBR allowed is 5.6 kgs.
2. The above norm is also applicable for tubeless tyres with natural rubber inner liner.
3. If the firm imports dipped fabric, items allowed for dipping i.e. Resorcinol and V.P. Latex shall not be allowed but a weight of 0.61 kg may be added.
It is further submitted that as per Clause 4.29 (VIII) of DFIA, "No Duty Free Import Authorisation shall be issued for an input where SION prescribes 'Actual User' condition." However, prayer made by the petitioner for importing the items including the Natural Rubber has been declined on the ground that there is an amendment in Clause 4.29 (VIII) with effect from 21.03.2017 which provides as under:-
"No Duty Free Import Authorisation shall be issued for an input where SION prescribes 'Actual User' condition and/or Appendix-4J prescribes pre import condition for such an input."
It is submitted that on the basis of amendment in Clause 4.29 (VIII) of DFIA, the impugned order has been passed on 10.03.2017 and the relevant portion of same reads as under:-
"Accordingly, it is clarified that Duty Free Import Authorizations are not allowed for inputs/import items specified in Appendix-4J, therefore, DFIA cannot be allowed for Natual Rubber as an input."
Counsel for the petitioner has submitted that amendment which has been brought in the policy w.e.f. 21.03.2017 cannot be made the basis to 3 of 5 ::: Downloaded on - 08-12-2019 03:00:41 ::: CWP No.8498 of 2017 {4} deny the import of Natural Rubber after the export of Automobile Tyre reinforced with Nylon Tyre Cord Warp Sheet etc. and in the presence of a valid DFIA Licence dated 03.10.2016. In this regard, he has relied upon two decisions of this Court in the case of Malwa Cotton Spinning Mills Limited Vs. Joint D.G.F.T., Ludhiana, 2003(153) E.L.T. (P&H) and Nagesh Hoisery Exports Limited Vs. D.G.F.T., New Delhi 2015(320) E.L.T. 95(P&H).
On the other hand, counsel for the respondents has submitted that the petitioner was very much informed on 26.10.2015 that permission has been granted on 03.10.2016 by mistake and therefore, the impugned order has rightly been passed.
While countering the arguments of counsel for the respondents, it is submitted by counsel for the petitioner that the alleged letter dated 26.10.2015 was issued much after the goods were exported by the petitioner between the months of June 2015 to October 2015, therefore, policy which has been amended would not apply retrospectively in respect of the case of the petitioner.
We have heard both the counsel for the parties, perused the record with their able assistance and are of the considered opinion that case set up by the petitioner has a merit because the petitioner is claiming right of redemption on the basis of export which took place between the months of June 2015 to October 2015, on the basis of the provisions of Clause 4.29 of DFIA in which there was no such condition that Appendix-4J prescribes 4 of 5 ::: Downloaded on - 08-12-2019 03:00:41 ::: CWP No.8498 of 2017 {5} three import condition for such an import. It is found that amendment has been brought on 21.03.2017 much after the export and therefore, petitioner cannot be denied the benefit which is available to him in view of SION wherein serial no.A1667 prescribes the items of export and against that item which is sought to be imported is also prescribed i.e. 'Natural Rubber'. The argument raised by counsel for the petitioner is supported by the two decisions rendered by this Court in the case of Malwa Cotton Spinning Mills Limited (supra) and Nagesh Hoisery Exports Limited (supra).
Thus, in view of aforementioned facts and circumstances, much less the fact that the case of petitioner is covered by two decisions of this Court, the writ petition is hereby allowed and impugned order dated 10.03.2017 is set aside. Since we have set aside the impugned order, therefore, DFIA Licence No.3010103853 issued to the petitioner on 03.10.2016 shall enure for a period of six months.
(RAKESH KUMAR JAIN)
JUDGE
(SUVIR SEHGAL)
November 13, 2019 JUDGE
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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