Delhi High Court Sophisticated Marbles & Granite ... vs Union Of India & Anr. on 4 March, 2010 W.P.(C) 13091 of 2009 & CM APPL No. 14083/09 Reserved on: February 4, 2010 Decision on: March 4, 2010 SOPHISTICATED MARBLES & GRANITE INDUSTRIES ...... PETITIONER Through: Mr. Jayant Bhushan, Senior Advocate with Mr. Mohit Chaudhary and Mr. Gautam Talukdar, Advocates versus UNION OF INDIA AND ANR ..... Respondents Through: Mr. A.S. Chandhiok, ASG with Mr. Sachin Dutta and Mr. Manikya Khanna, Advocates CONT CAS (C) 43 of 2010 SOPHISTICATED MARBLES & GRANITE INDUSTRIES ...... PETITIONER Through: Mr. Jayant Bhushan, Senior Advocate with Mr. Mohit Chaudhary and Mr. Gautam Talukdar, Advocates versus MARGRET JOS ..... RESPONDENTS Through: Mr. A.S. Chandhiok, ASG with Mr.Sachin Dutta and Mr. Manikya Khanna, Advocates 1. Whether reporters of local paper may be allowed to see the judgment? No 2. To be referred to the report or not? Yes 3. Whether the judgment should be referred in the digest? Yes JUDGMENT 1. The petitioner, an importer of rough marble blocks/slabs, challenges in this writ petition a circular dated 23rd October 2009 as well as notification dated 15th October 2009 issued by the Director General of Foreign Trade WP (C) 13091/09 & Cont Cas (C) 43/2010 Page 1 of 29 („DGFT‟) imposing a condition that for the purposes of securing an import licence the Petitioner would have to install a gang saw machine in its unit. 2. The Petitioner is a sister concern of the Litoller Group which was a pioneer in importing Italian marble into India. The petitioner was issued an import license for the import of marble slabs/blocks on 12 th October 1999. On 22nd January 2003 the DGFT renewed the Petitioner‟s license for import of rough marble blocks/slabs. A conspectus of the DGFT Circulars on import of marble 3. In order to appreciate the challenge to the impugned circular, it is necessary to refer to the background in which it came to be issued. On 14th March 2002 the DGFT issued guidelines for import of rough marble slabs. It was clarified that the EXIM Facilitation Committee („EFC‟) which was an InterMinisterial Committee comprising of representatives from various Ministries/Departments, would be considering the applications for import license in the DGFT, New Delhi. The eligible categories included those who had set up manufacturing and processing units in the country and those who were already importing marble in the preceding years when marble was being imported under Special Import Licence („SIL‟). The said circular dated 14th March 2002 also fixed the floor price for rough marble blocks at US$ 300 per metric tonne (PMT) and for slabs at US$ 450 PMT. The floor price for crude and roughly trimmed marble was fixed at US$ 300 PMT. In case of the importers of marble who were operating when marble was included in the SIL list, the value of the licence to be issued in one year was limited to 50% of the average value of the sales made during the years when WP (C) 13091/09 & Cont Cas (C) 43/2010 Page 2 of 29 marble was under the SIL list. The licences were subject to actual user condition. 4. After the import restrictions on marble were removed in 2001, when India became part of GATT, rough marble slabs/blocks continued to be in the restricted list. It is stated that based on representations received after 1 st April 2001, and in consultation with Department of Industrial Policy & Promotion („DIPP‟) and the Ministry of Mines, a policy circular was issued on 14th March 2002 permitting import of marble against licence, to those firms who had set up manufacturing/processing unit in the country and had also imported marble in the preceding year when it was under the SIL List. 5. By a circular dated 24th August 2004, the clause concerning value of ye