1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.411 of 1994 M/s.Toshniwal Agrochem Ltd. & ors. .. Petitioners versus Union Bank of India & ors. .. Respondents ... Mr.Jimmy Pochkanwala, Sr. Counsel with Mr.H.R. Shetty for the petitioner. Mr.R.V. Desai, Sr. Advocate with Mr.P.S.Jetly, Mr.R.B. Pardeshi and Mr.S.M. Shah for respondent. CORAM : F. I. REBELLO AND D.G. KARNIK, JJ DATED : 18th August 2009 ORAL JUDGMENT : (FERDINO I. REBELLO, J) 1. Petitioners are supporting manufacturers/exporters of industrial dyes. To manufacture such dyes, the petitioners use a vital ingredient called Acetic Anhydride. 2. By the present petition, the petitioners purport to challenge what they contend is the arbitrary and illegal action of the respondents in not allowing duty free clearance of the said goods under customs exemption Notification 2 No.204/92 dated 19th May 1992. The petitioners goods arrived in the territorial waters of India atleast on 18th November 1993. The petitioner was denied the benefit of the said notification on the ground that the notification dated 25th November 1993 was issued before the goods were cleared for home consumption. By that notification, the goods were deleted from exemption. The Petitioner had filed the Bill of Entry for home consumption in respect of the said goods on 26.11.1998. 3. A reply was filed on behalf of the respondents by Mr.S.S. Kulkarni, Assistant Collector. It is pointed out that the petitioners are the holders of the Duty Exemption Entitlement Certificate bearing no.086012 dated 2nd July 1993 along with Exemption Entitlement certificate. The petitioner had also been issued Advance Licence bearing 00314889 dated 2nd July 1993. A holder of DEEC book and holder of Advance Licence are given certain facilities in as much as they are required to give bonds or undertaking to the licensing authority so that they can import goods initially without payment of customs duty leviable thereof. The holder of the licence is required to fulfil certain time bound export obligation, value of which may be specified by the licensing authority. The licenciens may be either value or quantity base. The Advance licence issued to the petitioner is quantity based, issued in terms of paragraph no.50 of export and import policy, April 1992 to March 1997. The petitioner who is holdiing advance licence, was entitled to the benefit of notification no.204 of 1992 – Cus dated 19th May 1992 to 3 import goods viz. Acetic Anhydride subject to the conditions mentioned in the notifications. The petitioner filed bill of entry on 26th November 1993 claiming exemption benefit. Government of India issued notification no.183 of 1993 – CUS dated 25th November 1993 issued under section 25 of the Customs Act, further amending the notification no.204 of 1992 whereby the facilities given to the holders of advance licence to import aforesaid goods without payment of duty was withdrawn and deleted from exemption. This affidavit was sworn on 3rd February 1994. 4. Subsequent to this notification Shri Sanjay Toshniwal, Director of petitioner no.1 has filed an additional affidavit to which is annexed notification no.105 of 1994 – Cus dated 18th March 1994. By the notification certain words were added to the provision added by notification no.183/93 Based on this notification, it is the submission on behalf of the petitioner that they were entitled to the benefit of notification no.204 of 1992. 5. Learned counsel for the petitioner has drawn our attention to the judgment of the learned Division Bench of the Andhra Pradesh High Court in . S.K. Pharmaceuticals Vs. Union of India 2004(173 ELC 14 (AP) to contend that in similar circumstances, the learned Bench of the Andhra Pradesh High Court granted the benefit of notification no.105 of 1994. It is also pointed out that SLP preferred against the said petition was dismissed. 4 6. We have heard counsel for the parties. A perusal of the three notifications would indicate that considering notification no.204 of 1992, the explanation thereto, the petitioners were entitled to import Acetic Anhydride in terms set out thereto. A proviso came to be added to the explanation (4) to the earlier notification whereby the following words were added “ provided that nothing contained in this notification shall apply to import Acetic Anhydride”. 7. By a notification dated 18th March 1994, notification no.204 of 1992 was further amended. Firstly, a proviso was added with condition no.7; secondly a further proviso was added to condition (a) and (3) which is not relevant for our discussion. The following words were added in the explanation in clause (4) in the proviso, which read as under:- “against licences issued after 24th November, 1993, except whether such licence has been issued with the approval of Advance Licencing Committee in the office of the Director General of Foreign Trade” . It would thus be clear that though the earlier proviso as introduced by notification no.183/93 denied the benefit to persons like the petitioner by the subsequent notification no.105/94, the proviso would apply only to licences issued after 24th November 1993. 5 8. The petitioner admittedly had a licence issued much earlier. Once that be the case, the petitioner was entitled to the benefit under notification no.204/92 as amended subject to the petitioner satisfying the requirements of the other two provisos introduced in condition nos.7 and 8 if need be. 9. Considering the above, petition is partly allowed in as much as respondent no.4 is directed to decide the issue as to whether considering the notification no.105/94 whether the petitioner has complied with the other requirements of the notifications and to the extent they are relevant in so far as petitioner is concerned and accordingly decide the benefit under notification no.204/92. On hearing the parties, if the respondent no.4 comes to the conclusion that the petitioners have complied with the requisition of the notification and is entitled to the exemption, the bank guarantee furnished be returned cancelled to the petitioner. The entire exercise to completed within 12 weeks from receipt of order of this court. Rule made absolute accordingly. (D.G. KARNIK, J) (F.I. REBELLO, J)