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15. SavingNothing in this Order shall apply to

(j) products manufactured in and exported from the respective Free Trade Zones and approved 100 per cent Export Oriented Units except textile items covered by bilateral arrangements.

7. The aforesaid Export (Control) Order 1988 was amended by an order dated 14th October, 1991 so as to include in Part-C in Schedule I in List II a number of items including non-basmati rice. As a result of this amendment non-basmati rice was allowed to be exported subject to the following conditions "exports shall be allowed against registration-cum-allocation certificate issued by the Agricultural and Processed Food Products Export Development Authority (hereinafter referred to 'APEDA')appellant herein". This amendment was followed by a Trade Notice dated 15th October, 1991, issued by the appellant by which procedure was laid down for allotment of quota which envisaged that the minimum export price of non-basmati rice, which was fixed, was US $ 231 FOB per MT. This was followed by a letter dated 15th October, 1991 from Government of India to APEDA, interalia, stating that additional quota of non-basmati rice for export subject to minimum export price of US $ 231 per MT had been released and it was stated that the highest unit value realisation, and not cornering of quota by any party, should be the priority for allowance of export.

10. It will be appropriate, at this stage, to consider the points arising in these two cases, the Delhi case dealing with the case of export of rice and the Punjab case relating to the export of edible rice bran oil, separately.

11. The case relating to export of rice: The writ petition was filed in the Delhi High Court because vide letter dated 7th January, 1992, the Assistant Collector of Customs, Kandla, did not allow the export of rice and in fact, directed Oswal Agro to unload the rice which had been loaded. It appears that the action by the customs authorities had been taken when the appellants herein had informed the Assistant Collector of Customs, Kandla, that export of non-basmati rice could be allowed only when registration-cum-allocation certificates are issued. Inasmuch as Oswal Agro wanted to export the non-basmati rice without, any registration-cum-allocation certificate from the appellant and below the minimum price which had been fixed, the aforesaid action was taken by the Customs Authorities of stopping Oswal Agro from exporting rice. In the writ petition filed by the respondents in the Delhi High Court it was contended that being a 100 per cent export oriented unit, it was exempted from any trade restriction, inter alia, by virtue of the saving Clause 15(j) of the Export (Control) Order 1988. Another contention which was raised was that the fixation of minimum price by the appellant herein was without any power and authority. Further contending that Oswal Agro had entered into a number of contracts for the export of rice, it was submitted that the appellants herein were estopped from stopping the said export. According to Oswal Agro it had entered into contracts dated 16th October, 1991, 18th October, 1991 and 21st October, 1991, whereby it was under a contractual obligation to supply 1,07,000 M.T. of non-basmati rice to M/s. Continental Grain Company, New York. It is an admitted case that the price at which Oswal Agro wanted to export the non-basmati rice, without any registration or authorisation from the appellant was US $ 213 per M.T., i.e., below the minimum price fixed by the appellant herein.

In view of the aforesaid clause the notification dated 14th October, 1991, by which the said order has been amended, will not apply to the petitioner's unit which is admittedly a 100 per cent export oriented unit. Since the Trade Notice dated 15th October, 1991, has been issued pursuant to the notification dated 14th October, 1991, the same will also not apply to the exports being made by 100 per cent export oriented Units.

The High Court also held that there was no provision in the Export (Control) Order 1988 for fixing the minimum price for non-basmati rice. By taking note of the fact that vide letter dated 15th October, 1991, of the appellants herein, the last date for exporting the entire quantity of non-basmati rice was 31st March, 1992, the High Court while allowing the writ petition granted three months' time to export the balance quantity of 83800 M. T, of non-basmati rice.

136 of the Constitution is clearly 'called for, more so when it is admitted that the respondent had exported over 87000 M. T. of non-basmati rice at the price far less than the minimum price fixed by the appellant.

32. For the aforesaid reasons we conclude that Oswal Agro could not, in law, export non-basmati rice. The Delhi High Court, instead of passing interim orders and allowing export of non-basmati rice, ought to have dismissed the writ petition.

33. It was contended by the learned Counsel that even if it be assumed that the export of non-basmati rise below the minimum price fixed by the appellant was not permissible even then the only loss which has been suffered by the appellant was the 5% on the difference in the price at which the rise was exported and the minimum price which was fixed. Elaborating the contention it was submitted that the sale proceed of the rice which was exported would always belong to the respondent and the appellant was only entitled to receive 5% of the proceed. Therefore if there was an export at less than the minimum price fixed then the shortfall of the amount,which is received would be to the account of Oswal Agro. The loss to the appellant herein, it was submitted, would only be to the extent of 5% of the sale price which should have been realised and the difference between the actual sale price and the minimum price fixed was not a payable by Oswal Agro to the appellant.