Case: Prem Chand Somchand Shah and Another Vs. Union of India and Another

provide an exception to the rule and to declare that an importer might import a canalised item directly. It is in that sense and that sense only that the court could have intended to define the entitlement of diamond exporters. They would be entitled to import items which were canalised or not if the import policy prevailing at the time of the import permitted them to import items falling under such category. This was also viewed in that light in the case of Indo Afghan Chambers of Commerce (Indo Afghan Chambers of Commerce v. Union of India, 1986 (3) SCC 352 : 1986 (3) SCR 88 )." * 15. These observations only indicate that import of the canalised items under Additional Licences issued to Export Houses, like the petitioners, would be permissible if the import policy prevailing at the time of import permits them to import such items. In other words it would depend on the terms of the import policy prevailing at the time of import. The decision in Indo Afghan Chambers of Commerce v. Union of India (Indo Afghan Chambers of Commerce v. Union of India, 1986 (3) SCC 352 : 1986 (3) SCR 88 )" to which reference has been made, is also the same effect. In that case Export Houses, like the petitioners, wanted to import Dry Fruits under the Additional Licences issued to them. Under the Import Policy 1985-88 prevailing at the time of such import, the import of dry fruits was permissible only by dealers engaged in the trade of stocking and selling dry fruits. It was held that the Export Houses could not import dry fruits in view of the said restriction placed in the Import Policy 1985-88. The decision of this Court in D. Navinchandra & Co. case [ 1987 (3) SCC 66 : 1987 (2) SCR 989 ] reiterates that the rights of the petitioners under the Additional Licences issued to them would be governed by the terms of the import policy prevailing at the time of import 16. Here we find that in the Import and Export Policy 1988-91 there has been relaxation to a limited extent in respect of imports by Export Houses who are granted Additional Licences under the said Policy on the basis of their exports during that period 1987-88 and subsequent periods. Since the basis for the grant of Additional Licences which are entitled to this relaxation is different from the basis on which Additional Licences were granted to the petitioners, the petitioners cannot claim the benefit of the same relaxation and assail the validity of sub-para (10) of para 218 of the Import and Export Policy 1988-91 17. Shri Salve has invited our attention to the Import Licence dated November 21, 1988 issued in favour of M/s. Suraj Diamonds Industries Pvt. Ltd. wherein it is stated that this licence is valid for import of items as per para 215 of Import and Export Policy 1988-91 subject to restrictions/conditions laid down therein. It has been submitted that this licence has also been issued under the Import and Export Policy 1978-79 on the basis of the f.o.b. value of exports. It has been urged that the petitioners as well as the said licensee, namely M/s. Suraj Diamonds Industries Pvt. Ltd. are persons similarly situate and whereas M/s. Suraj Diamonds Industries Pvt. Ltd. have been granted an Additional Licence whereunder it is permissible to import items as per para 215 of the Import and Export Policy 1988-91, the said facility has been denied to the petitioners and that the petitioners have been subjected to arbitrary and hostile discrimination. The learned Additional Solicitor General has pointed out that the said licence to M/s. Suraj Diamonds Industries Pvt. Ltd. was issued under a mistake and the said mistake has been rectified on December 2, 1988, i.e., within 10 days of the issue of the said licence. In view of the fact that the licence issued in favour of M/s. Suraj Diamonds Industries was issued under a mistake and the said mistake has been rectified, it cannot be said that the petitioners have been subjected to hostile discrimination vis-a-vis other Export Houses similarly situate 18. Before we conclude, we may take note of the recent decision of this Court in B. Vijay Kumar & Co. v. Collector of Central Excise and Customs ((1991) 1 Scale 33). The appellants therein had been granted Additional Import Licence in pursuance of this Courts order dated April 18, 1985 in Rajnikant Brothers case 1986 Supp(SCC) 692) and had imported canalised items under the said licence. The goods were not cleared by the customs authorities and the Collector of Customs imposed penalty and passed orders for confiscation of the foods and permitted the appellants to take delivery of goods on payment of redemption fine. The Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Appellate Tribunal) on appeal, while upholding the order of imposition of redemption fine, set aside the order of Collector imposing penalty. In view of the special facts and circumstances of the case and specially having regard to the findings of the Appellate Tribunal that the appellants imported canalised items bona fide, this Court set aside the orders of the Collector and the Appellate Tribunal with regard to confiscation of goods and imposition or redemption fine without dealing with the submissions of learned counsel for the parties with regard to the interpretation and the effect of the earlier judgments of this Court in Raj Prakash Chemicals case ( 1986 (2) SCC 297 : 1986 (1) SCR 448 ) Indo-Afghan case (Indo Afghan Chambers of Commerce v. Union of India, 1986 (3) SCC 352 : 1986 (3) SCR 88 ), Godrej Soap case (Star Diamond Co., India v. Union of India, 1986 (4) SCC 246 : 1986 SCC(Cri) 431) and D. Navinchandra & Co. case ( 1987 (3) SCC 66 : 1987 (2) SCR 989 ) This decision is, therefore, a decision based on the facts of that particular case only

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. Shri Salve has invited our attention to the Import Licence dated November 21, 1988 issued in favour of M/s. Suraj Diamonds Industries Pvt. Ltd. wherein it is stated that this licence is valid for import of items as per para 215 of Import and Export Policy 1988-91 subject to restrictions/conditions laid down therein. It has been submitted that this licence has also been issued under the Import and Export Policy 1978-79 on the basis of the f.o.b. value of exports. It has been urged that the petitioners as well as the said licensee, namely M/s. Suraj Diamonds Industries Pvt. Ltd. are persons similarly situate and whereas M/s. Suraj Diamonds Industries Pvt. Ltd. have been granted an Additional Licence whereunder it is permissible to import items as per para 215 of the Import and Export Policy 1988-91, the said facility has been denied to the petitioners and that the petitioners have been subjected to arbitrary and hostile discrimination. The learned Additional Solicitor General has pointed out that the said licence to M/s. Suraj Diamonds Industries Pvt. Ltd. was issued under a mistake and the said mistake has been rectified on December 2, 1988, i.e., within 10 days of the issue of the said licence. In view of the fact that the licence issued in favour of M/s. Suraj Diamonds Industries was issued under a mistake and the said mistake has been rectified, it cannot be said that the petitioners have been subjected to hostile discrimination vis-a-vis other Export Houses similarlyShri H.N. Salve, has, however, urged that the view of the decision of this Court in D. Navinchandra & Co. case ( 1987 (3) SCC 66 : 1987 (2) SCR 989 ) the Export Houses who were granted Additional Licences under the Import and Export Policy 1978-79 have to be treated at par with Export Houses who have been granted Additional Licences under the Import and Export Policy for the subsequent years and since there has been relaxation in the matter of policy of canalisation of imports under sub-para (4) of para 215 in respect of Additional Licences granted to Export Houses under the Import and Export Policy 1988-91, the petitioners are also entitled to a similar relaxation. We are unable to agree withHere we find that in the Import and Export Policy 1988-91 there has been relaxation to a limited extent in respect of imports by Export Houses who are granted Additional Licences under the said Policy on the basis of their exports during that period 1987-88 and subsequent periods. Since the basis for the grant of Additional Licences which are entitled to this relaxation is different from the basis on which Additional Licences were granted to the petitioners, the petitioners cannot claim the benefit of the same relaxation and assail the validity of sub-para (10) of para 218 of the Import and Export PolicyBefore we conclude, we may take note of the recent decision of this Court in B. Vijay Kumar & Co. v. Collector of Central Excise and Customs ((1991) 1 Scale 33). The appellants therein had been granted Additional Import Licence in pursuance of this Courts order dated April 18, 1985 in Rajnikant Brothers case 1986 Supp(SCC) 692) and had imported canalised items under the said licence. The goods were not cleared by the customs authorities and the Collector of Customs imposed penalty and passed orders for confiscation of the foods and permitted the appellants to take delivery of goods on payment of redemption fine. The Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Appellate Tribunal) on appeal, while upholding the order of imposition of redemption fine, set aside the order of Collector imposing penalty. In view of the special facts and circumstances of the case and specially having regard to the findings of the Appellate Tribunal that the appellants imported canalised items bona fide, this Court set aside the orders of the Collector and the Appellate Tribunal with regard to confiscation of goods and imposition or redemption fine without dealing with the submissions of learned counsel for the parties with regard to the interpretation and the effect of the earlier judgments of this Court in Raj Prakash Chemicals case ( 1986 (2) SCC 297 : 1986 (1) SCR 448 ) Indo-Afghan case (Indo Afghan Chambers of Commerce v. Union of India, 1986 (3) SCC 352 : 1986 (3) SCR 88 ), Godrej Soap case (Star Diamond Co., India v. Union of India, 1986 (4) SCC 246 : 1986 SCC(Cri) 431) and D. Navinchandra & Co. case ( 1987 (3) SCC 66 : 1987 (2) SCR 989 ) This decision is, therefore, a decision based on the facts of that particular case only