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This amended scheme came into effect from 25th March, 1996. However, Entry 7 of the SION remained as it is. Petitioners' claim is based on the unamended Entry 7 of SION as also on the unamended and the amended paragraph 54 pertaining to the Pass Book Scheme.

6. It is an admitted position that both the petitioners are availing of the Pass Book Scheme and had claimed that they had exported frozen Head-on/Headless Shrimps, covered under Entry 7 of SION entries (please refer to paragraph 5.3.4. for the entry). There is no dispute that these exports were made during the period of two years covered in the Pass Book Scheme. They, therefore, sought a credit commensurate to their exports of frozen Head-on/Headless Shrimps. The claim was that they should be given the credit for the item covered in entry (j) in the Import Items, viz. Vitamin Mixes at the rate of 227 kilos per metric ton. In short, petitioners claim that for every metric ton of the export made, they should be given the credit of the customs duty payable on 227 kilos of Vitamin Mixes. They claimed the rate of U.S.$36 per kilo. However, the customs authorities proposed that the credit should be granted by the respondents at the rate of U.S.$8 per kilo for Vitamin Mixes. It is significant to see here, at this stage there was no dispute regarding the quantity of 227 kilos for every metric ton of export. The dispute was only as regards the rate which, according to the petitioner, was U.S.$36 per kilo while according to the respondents, it was only U.S.$8 per kilo. An order to that effect was passed by the first respondent and the petitioners filed appeals before the Commissioner of Customs (Appeals) who allowed the appeals and accepted the petitioners' claim for the credit at the rate of U.S.$36 per kilo. The matter was carried by the Department by way of appeal to the Customs, Excise and Gold (Control) Appellate Tribunal (in short 'CEGAT') who ultimately passed the final orders and confirmed the order passed by the Commissioner of Customs (Appeals) holding that the rate claimed by the petitioners of U.S.$36 per kilo was the proper rate. It is reported that the orders passed in case of both the petitioners are challenged before the Apex Court in the Special Leave Petitions filed by the Department. 

D1    Not Relevant
D2    Not Relevant
D3  Frozen Headon/Headless   1 MT  Prawn Feed ingredients 
    Shrimps of species Black
    Tiger (Penaeus Monodon)    a) Fish Meal                 )    1.65 MT
    and White Shrimps          b) Shrimp Shell Meal         ) (cumulative)
    (Penaeus Indicus)          
                               c) Soya Meal                 )    1.20 MT
                               d) Fish Oils Oil Mixes       ) (cumulative)
                               e) Fish Solubles/Liquid Fish )  None of these
                                  Meal        )  items should
                                                            )  exceed 0.25 MT
                               f) Squid Liver Powder        )    
                               g) Squid Liver Oil           )
                               h) Wheat Gluton              )
                               i) Lecithin (Soya Bean)      )

                               j) Vitamin Mixes consisting   )   0.27 MT
                                  of Vitamin C, Vitamin E,   )
                                  Vitamin A/AD3, Vitamin B-1 )
                                  HCL/B-1, Mono Nitrate      )
                                  Vitamin B2/B6              )  
                               
                         k) Mineral Mixes              )   0.200 MT

Note: The feed ingredients - Vitamin Mixes and Mineral Mixes allowed above are to be permitted only in mixed form and not as individual vitamins/minerals.

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When compared with entry (j) appearing in paragraph 5.3.4 of this judgment, the change becomes significant. In the earlier norms, there was nothing limiting the imports only to the Vitamin Mixes or only the Mineral Mixes. The quantity up to 0.227 kilos per metric ton could be imported in any proportion or even individually. The restriction was only the limit of 227 kilos per metric ton. When we see the amended entry (j), it becomes apparent that under the same now if the Vitamin Mixes are to be imported as against the exports that will be restricted only to 27 kilos per metric ton as against the export of 1 metric ton of frozen Head-on/Headless Shrimps. Similarly, the Mineral Mixes would be subject to the extent of 200 kilos per metric ton. The respondents insist and took a stand before the Gujarat High Court that it would be these amended norms which would be applicable even in respect of the exports which were made during the period of two years from 1-4-1995 to 31-3-1997. In short, the contention is that the petitioners if they want to claim the credit on the basis of Vitamin Mixes, it would be only to the extent of only 27 kilos as against the export of 1 metric ton of frozen Head-on/Headless Shrimps. It is on this issue that the parties are at loggerheads.

11. The learned counsel heavily relies on the language of the Pass Book Scheme and points out that the exporters could get the credit on the fact of export by itself when such export was proved before the designated authority who was the Director General of Foreign Trade. According to the learned counsel, the basic difference in the Advance Licence Scheme and the Pass Book Scheme was that under the later there was no necessity of the nexus between the exports and the imports either prior to or after the exports. The exports when once proved, the necessary credit had to be given, the calculation of which was to be in accordance with SION. In short, the credit under the Pass Book Scheme did not depend upon the prior imports or the subsequent imports as the concept of import was completely done away with and the credit had to be calculated only on the notional imports which the exporters could have been entitled to under the SION. The learned counsel points out that to take the example if 1 MT of frozen Headless/Head-on Shrimps were exported, it was not necessary that the exporter would be liable to import the Vitamin Mixes in the quantity as per SION. The learned counsel is at pains to point out that the credit had to be given only on the notional import as for example on an export of 1 MT of frozen Head-on/Headless Shrimps, the exporter would be entitled for a credit of the customs duty which he would have otherwise paid had he imported 227 kilos of Vitamin Mixes and Mineral Mixes. The learned counsel says that there would be no question of prior imports or even the subsequent imports as on the basis of the credit given the exporter could import any other goods, of course, with the exception of the goods included in the Negative List of Imports or in the list of Sensitive Items. The following sentence in the Pass Book Scheme is very heavily relied upon by the learned senior counsel, that being: