No 411 of 1987
Under Article 32 of the Constitution of India
TU Mehta A Subba Rao P Parmeshwaran Harish N Salve ND Garg Rajiv K Garg PH Parekh Ms Ayesha Misra and MN Shroff for the appearing parties
Petitioners seek issue of appro priate writs to the Authorities to re validate the six Imprest Licences with appropriate endorsement for the import of open General items under the Import Export Policy of 1982 83 AM 1983
15 This writ petition came up for preliminary heating along with Special Leave Petition Civil Nos 2579 of 1987 and 2580 of 1987 preferred by the Union of India seeking leave to appeal from two Judgments of the Division Bench of the High Court of Judicature at Bombay in two other cases
Petitioners are a recognised Export House for purposes of the Import Export Policy 1982 83
They applied for and were granted six imprest licences 1 2932347 dated 3171982 for CIF value of Rs6528500 2 293259 dated 2081982 for Rs11449263 3 0470538 dated 1151982 for Rs14376770 4 0449604 dated 1251981 for Rs13239130 5 0468397 dated 1641982 for Rs521747 and 6 2927607 dated 2941980 for Rs 14716238 for the import of uncut and unset diamonds with the obligation to fulfill certain export commitment for the export out of India of cut and polished diamonds of the FOB value stipu lated in each of the imprest licences
Petitioners claim that pursuant to the said imprest licences they had im ported uncut and unset diamonds and had also discharged their export obligations by exporting cut and polished diamonds of the requisite value as evidenced by the Redemp tionCertificates which are annexed as annexure V to the memorandum of writ petition
Petitioners claim that in terms of para 1854 of ImportExport Policy 1982 83 they were entitled to the facility for the import of OGL items as is available in the case of replenishment licences issued to export houses under clauses 1 and 3 of para 185 of A M 1983 policy
Para graph 1854 of the AM 1983 provided 4 The facility for import of OGL items available in subpara 3 above may also be allowed on merits to Export Houses against their advanceimprest licences on account of which they are rendered ineligible to obtain REP licence
In such cases however the value upto which the OGL import may be allowed will not exceed the value to which the Export House would have been eligible to the REP licence had he not obtained advanceimprest licence in question
This facility will be available to the Export House after he has discharged the export obligation imposed on the ad vanceimprest licence
Therefore if by the time the Export House becomes eligible to this facility the advanceimprest licence has expired or if the original 16 validity left unused by that time is less than six months the licensing authority will revalidate the licence simultaneously so as to give to the licence holder a time of six months for the purpose of importing OGL item under this facility
However the petitioners did not bestir themselves to seek the revalidation and endorsement for OGL items for quite some time thereafter
It was only in the year 1986 they sought such revalidation and endorsement
That was after a lapse of several years from the completion of their export obligations
The Joint Chief Controller of Imports and Exports by his two decisions one dated 581986 per taining to the Imprest Licence 2927607 dated 2941980 and the other dated 941986 pertaining to the other five Imprest Licences declined the request
These two orders are challenged in the writ petition
The grounds for refusal in both the decisions are simi lar except for the reference to certain relevant dates
The grounds are broadly on two aspects
The first pertains to the inordinate delay in seeking revalidation and endorse ment
On this the communication says We are surprised to have received your letter No nil dated 2141986 forwarding therewith Imprest Licence No 2927607 dated 2941980 exchange control copy for the period AM 83 for grant of revalidation and endorsement for import of OGL items without debiting the licence in terms of para 1985 of Import Policy for the period 1982 83 after 5 years of the expiry of the licence for which the export obligation period was discharged on 251080 22251080 291080 19581 5581 22681 5581 20581 29681  22981
In other words you have made a request for revalidation and endorsement under para 185 of AM 83 Policy after 4 years and 7 months from the discharge of the export obligation
It is therefore obvious that you have not cared to apply immediately after discharge of export obligation and as such your request is grossly time barred   The second aspect is as to the merits and permissibility of the claim
The communication says 17  
More over in terms of para 1857 to AM 83 Import Policy Import of OGL items by Export houses under the provisions to sub paras 4 and 5 of para 185 of the said policy is subject to the condition that the shipments of goods shall take place within the validity of the OGL ie 31386 or within the validity period of the Import Licence itself within grace period whichever date is earli er
Since this date is over and the request has been made after 4 years and 7 months after the discharge of export obligation question of permitting facility under the aforesaid provision does not arise
Besides there is no provision in the Import Export procedures for the period 1985 86 for grant of revalidation in which period your request has been re ceived
Para 73 of the said procedures states that no revalidation of import licences of emergency licences for CCPs will be allowed    The present writ petition challenge these orders
The petitioners allege that their claims are similar to those made by Ms Ripal Kumar  Co and Ms H Patel  Co who had filed writ petitions No 2477 of 1984 and No 1465 of 1984 respectively in the High Court of Judicature at Bombay for the issue of appropriate writs to the authorities to revalidate the Imprest Licences that those writ petitions were allowed by the learned Single Judges of the High Court whose decisions came to be affirmed in appeal by the Divi sion Bench that Special Leave Petitions 4670 of 1986 and 7389 of 1985 respectively preferred by the Union of India against the said two judgments of the Bombay High Court were dismissed by this Court and that therefore the rejection by the authorities of the petitioners  claim for similar revalidation of the six Imprest Licences and endorsement for OGL items would in view of grant of revalidation and en dorsement in those cases be discriminatory and violative of Article 14
It is contended for the petitioners that the grounds for refusal put forward by the authorities in the case of Ms Ripal Kumar  Co and Ms H Patel  Co were exactly similar to those proffered in the case of petitioners also and that those grounds had been found by the courts to be insufficient in law to support the refusal
Petitioners say that they made the demand for revalidation immediately after the decision of the Bombay High Court in Ms Ripal Kumar  Co s case and that the rejection of the petitioners  claim is wholly discriminatory as there was no basis for any distinction to be made in petitioners  case
Apart altogether from the merits of the grounds for rejec tion 18 on which it cannot be said that the mere rejection of the Special Leave Petitions in the cases of Ms Ripal Kumar  Co and Ms H Patel  Co could by itself be construed as the imprimatur of this Court on the correctness of the decisions sought to be appealed against there is one more ground which basically sets the present case apart
Peti tioners are re agitating claims which they had not pursued for several years
Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else s case came to be decided
There case cannot be considered on the anology of one where a law had been declared unconstitutional and void by a Court so as to enable persons to recover monies paid under the compulsion of a law later so declared void
There is also an unex plained inordinate delay in preferring this writ petition which is brought after almost an year after the first rejec tion
From the orders in Ms Ripal Kumar  Co s case and Ms H Patel  Co s case it is seen that in the former case the application for revalidation and endorsement was made on 1231984 within four months of the date of the redemption certificate dated 1611
1983 and in the latter case the application for revalidation was filed on 2061984 in about three months from the Redemption Certificate dated 931984
On a consideration of the matter we think that apart altogether from the merits of the other grounds for rejec tion the inordinate delay in preferring the claim before the authorities as also the delay in filing the writ peti tion before this Court should by themselves pursuade us to decline to interfere
In Durga Prasad vs Chief Controller I  E this Court observed   
It is well known that the exchange position of this country and the policy of the Government regarding Interna tional Trade varies from year to year and it would be rather odd for this Court to direct that an import licence be granted in the year 1968 in respect of alleged defaults committed by the Government in 1959 or 1962
In these matters it is essential that persons who are aggrieved by orders of the Government should approach the High Court after exhausting the remedies provided by law rule or order with utmost expedition
 It is stated in the two communications rejecting the claim of the 19 petitioners that petitioners are entitled to an appeal as laid down in the appeal procedures in the policy
If any such a right of appeal is available this order rejecting the writ petition shall not prejudice petitioners  case in any such appeal
We accordingly decline to interfere and reject this writ petition
NPV Petition dismissed


Summary:
section 4a of the Central Provinces and Berar Sales Tax Act 1947 provided that every dealer whose turnover exceeded certain limits shall be liable to pay tax in accordance with the provisions of the Act on all sales effected after the commencement 428 of the Act  and by section 2g Of the Act  sale  means any transfer of property in goods 
including a transfer of property in goods made in course of the execution of a contract
Under section 61 of the Act no tax was payable on the sale of goods specified in Sch
11 to the Act and section 62 enabled the State Government by notification to amend the schedule
Item 33 in Sch
11 as amended by Act XVl of 1949 and as adapted by the Adaptation Order of 195o was  Goods sold to or by the State Government 
In exercise of the power conferred by section 62 of the Act the Government issued a notification on September 18 1950 amending item 33 by substituting the words  Goods sold by the State Government 
The appellant a contractor doing business in the construction of buildings and roads for the Military and Public Works Department in the State of Madhya Pradesh challenged the validity of the assessment which the respondent proposed to make on the appellant under the provisions of the Central Provinces and Berar Sales Tax Act 1947 on the grounds 1 that the Provincial Legislature had no authority under Entry 48 Of List II Sch
VII of the Government of India Act 1935 to impose a tax on the supply of materials in works contracts and that the provisions of that Central Provinces and Berar Sales Tax Act which sought to impose a tax thereon treating it as a sale were ultra vires and 2 that he was entitled to exemption under item 33 in Sch
11 to tile Act and that the notification of the Government dated September 18 1950 withdrawing that exemption was bad as being an unconstitutional delegation of legislative authority  Held that the expression sales of goods in Entry 48 has the same meaning which it had in the Indian  that in a building contract there is no sale of materials as such and that it is therefore ultra vires the powers of the Provincial Legislature to impose tax on the supply of materials
The State of Madras vs Gannon Dunkerley  Co Madras Ltd   followed
Per Das C J Venkatarama Aiyar section K Das and A K Sarkar JJ It is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws such as the selection of persons on whom the tax is to be laid the rates at which it is to be charged in respect of different classes of goods and the like
The power conferred on the State Government by section 62 of the Act to amend the Schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic and is not unconstitutional
Sub sections 1 and 2 of section 6 together form integral part of a single enactment the object of which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government and an 429 exemption granted under section 61 is conditional and subject to any notification that might be issued under section 62
The notification dated September 18 1950 is therefore intra vires