Case Note & Summary
The petitioners, manufacturers of colour televisions, imported Video Tape Deck Mechanism (VTDM) and Colour Picture Tubes (CPTs) against additional licences issued under the Import and Export Policy 1988-91. At the time of issuance of the licences, both items were listed as Open General Licence (OGL) items in Appendix 6, List 8, Part 1. The petitioners purchased additional licences between August 1988 and March 1989, all dated prior to 21 March 1989. A public notice No. 109/89 dated 21 March 1989 deleted CPTs and VTDMs from the OGL list and shifted them to the list of restricted items. Subsequently, between February 1990 and March 1990, the petitioners opened Letters of Credit and made imports. Bills of Entry were filed between November 1989 and October 1990. The Customs authorities objected to the validity of the additional licences in light of the public notice, leading to the goods being bonded. The petitioners sought clearance for home consumption, but were denied. Writ petitions were filed seeking a direction to allow clearance. Interim relief was granted on 10 September 1990 allowing clearance against ITC Bonds, with liberty to adjudicate. The Commissioner of Customs passed an Order-in-Original on 30 April 1992, confiscating the goods on the ground that the imports were invalid under the public notice. An appeal to the Customs, Excise and Gold Control Appellate Tribunal was disposed of on 10 November 1997 as the High Court was seized of the matter. The petitioners amended the writ petition to challenge the Order-in-Original. The respondents contended that the imports were made after the public notice, and the additional licences were valid only for OGL items as per the policy prevailing at the time of import. The petitioners argued that the public notice did not explicitly invalidate pre-issued additional licences, that vested rights under one policy cannot be taken away by another, and that transitional provisions in the subsequent Import and Export Policy AM 1990-93 protected imports where Letters of Credit were opened before 31 March 1990. The High Court heard the matters together and reserved judgment on 15 September 2017, pronouncing it on 13 December 2017.
Issue of Consideration
Whether the public notice dated 21 March 1989 shifting CPTs and VTDMs from OGL to restricted list rendered the imports made under additional licences issued prior thereto invalid, and whether the petitioners were entitled to clearance of the goods.
Case Details
2017 LawText (BOM) (12) 65
Writ Petition No.2433 of 1990 (along with connected matters)
A.S. Oka, J. and Riyaz I. Chagla, J.
Mr. K.R. Bulchandani, Mr. Avik Sarkar, Mr. Amit Nikam i/b Kamal & Co. (for petitioners except in WP 3225/1989 and 2834/1990), Mr. Pradeep Jetly (for respondent Union of India)
Videocon International Limited and another (in most petitions), M/s. Pacific Export, M/s. Television & Components Limited, M/s. Holly Hock Investments Private Limited
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Nature of Litigation
Writ Petition under Article 226 of the Constitution of India challenging the refusal by Customs authorities to allow clearance of imported CPTs and VTDMs under additional licences and subsequently challenging the Order-in-Original confiscating the goods.
Remedy Sought
The petitioners sought a direction to the respondents to allow clearance of the imported goods (CPTs and VTDMs) against the additional licences, and later challenged the Order-in-Original dated 30 April 1992.
Filing Reason
Customs authorities objected to the validity of additional licences for importing CPTs and VTDMs after the public notice dated 21 March 1989 shifted these items from OGL to the restricted list, leading to blocking of goods meant for home clearance.
Previous Decisions
The Commissioner of Customs passed an Order-in-Original dated 30 April 1992 confiscating the goods. The appeal before the Customs, Excise and Gold Control Appellate Tribunal was disposed of on 10 November 1997 without a decision on merits as the High Court was seized of the matter. The writ petitions were admitted with interim relief on 10 September 1990.
Issues
Whether the public notice No. 109/89 dated 21 March 1989 deleting CPTs and VTDMs from OGL list and placing them in the restricted list rendered the imports made under additional licences issued prior to the public notice invalid.
Whether the petitioners acquired a vested right to import under the additional licences based on the policy in force at the time of issuance of licences.
Whether the transitional provisions of the subsequent import policy (AM 1990-93) protected imports under additional licences where Letters of Credit were opened before 31 March 1990.
Submissions/Arguments
Petitioners argued that the public notice only referred to imports under OGL by eligible actual users, not to imports under additional licences issued to export houses/trading houses; the notice did not contain any provision invalidating additional licences issued prior to the date of the notice.
Petitioners submitted that a vested right accrued under one policy cannot be taken away by another policy; sub-clause 2 of clauses 223 and 224 of the Import and Export policy AM 1990-93 permitted the holders of additional licences issued prior to 1 April 1990 to import the items listed in Appendix 6 List 8 Part 1 of the OGL provided the Letters of Credit were opened before 31 March 1990.
Respondents contended that the imports in question were made after the date of the public notice and therefore the petitioners were not entitled to import the goods under the additional licences; validity of additional licences was limited to the items which are placed under the OGL; the import policy prevailing at the time of public notice will be applicable.
Judgment Excerpts
By the said public notice, CPTs were deleted from Sr. No.821(5) and shifted to Entry No.129 of Appendix 2B.
there is no dispute about the fact that both the items were listed as OGL items at the relevant time.
the said public notice does not contain any provision invalidating additional licences issued prior to the date of the said public notice.
Procedural History
Between 02/08/1988 and 10/03/1989, petitioners purchased additional licences dated before 21/03/1989. On 21/03/1989, public notice No. 109/89 deleted CPTs and VTDMs from OGL list and shifted them to restricted items. Between 01/11/1989 and 11/10/1990, Bills of Entry were filed. Between 02/02/1990 and 26/02/1990, Letters of Credit were opened. Imports were made prior to 31/03/1990. Customs raised objection and goods were bonded; re-export allowed against bond and bank guarantee. On 10/09/1990, writ petitions were filed and interim relief granted allowing clearance against ITC Bond, with liberty to adjudicate. On 30/04/1992, Order-in-Original passed by Commissioner of Customs ordering confiscation. Appeal to CEGAT disposed of on 10/11/1997. Petitions amended to challenge the Order-in-Original. Matters heard and judgment reserved on 15/09/2017, pronounced on 13/12/2017.
