Case: Union Of India  Vs. Shree Ganesh Steel Rolling Mills

2. Tata Iron and Steel Company Limited was granted an advance duty free licence on the basis of its application. The grant was made on 28.4.93. Tata Iron and Steel Company complied with all the conditions attached to the said licence and, thereafter applied for endorsement of transferability. On 6.9.93 the Director General of Foreign Trade made the endorsement of transferability. On 17.12.93 Tata Iron & Steel Company transferred the licence in favour of M/s. Ferro Alloys Limited. M/s. Ferro Alloys Limited in turn transferred in to M/s. Mohan Ferro Alloys Private Limited, from whom the respondent herein (Shree Ganesh Steel Rolling Mills Limited) purchased it on 11.2.94. The respondents imported goods on the basis of the said licence. At that stage an objection was raised by the customs authorities that inasmuch as the import was made beyond six months from 6.9.93 (date of endorsement of transferability), the import is invalid; accordingly they refused to clear the goods. At that stage, the respondent approached the Delhi High Court by way of a writ petition wherein they obtained the impugned interim orders.

Reasoning:
4. We are unable to agree with the learned Counsel for the appellants on his first and main submission.A reading of Para 16 shows that D.G.F.T. is no doubt empowered to specify the procedure to be followed in the matter of import and export but this has to be done by means of a Public Notice. It further says that the said procedure can also be amended in like manner i.e. by means of a Public Notice. Now it is not disputed that the clarification dated April 19, 1994 was not by means of a Public Notice. It, therefore, cannot be read as an amendment of theIn our opinion, the power of clarification under para 20 of the policy cannot go to the extent of amending the policy––but that is precisely what the Directorate has sought to do by way of circular dated April 19,1994. In the place of the words ‘date ofin Para 127(v) be purported to introduce the wordsWe are of the opinion that this change could not have been brought about in the name of clarification. It could have been done only by way of an amendment. It in fact was done by a public notice on 28.7.94. In this case, however, the import took place before 28.7.94. In view of the said factual position, we need not go into the question whether the said amended procedure can be applied in the case of an import made on or after 28th September, 1994, though on the foot of a licence issued earlier thereto. It is equally unnecessary for us in this case to go into the question whether the sixd should be calculated from the date of first transfer or from the date of last transfer inasmuch as, in this case even if the period of sixtherefrom.6. We are, however, inclined to agree with the grievance of the Counsel for the appellant that granting of an unconditional stay may very often tend to cause prejudice to the other side. It is always advisable that while making interim orders, the Court should provide for necessary safeguards for Revenue in the eventuality of failure of the petitioner or appellant. At the interim stage, it may not be possible to say with any definiteness that writ petition or appeal is bound to succeed. The possibility of the writ petition or appeal being dismissed cannot be ruled out at that stage. Therefore, it is always advisable that sufficient safeguards are provided in favour of a Revenue while making such interim orders.