The High Court went on to observe It may be that some of the items, which were permitted to be imported in the year 1981 82 may number have been absolutely banned under the Policy for the current year, i.e. 1983 84.
Export Houses were entitled to the following facilities Import replenishment licences eligible to them as Registered Exporters, Import replenishment licences transferred to them by others, Import of items placed on Open General Licence.
761 of 1983 filed by Messrs. N. Nayankumar and Company where he directed the issue of an Export House Certificate to the petitioners under the Import Policy 1978 79 and held the petitioners entitled to an Additional Licence for the import of items in the same terms as was set forth in the order dated November 11, 1983 in the earlier case.
The Additional Licence granted for 1978 79 would be valid for the import of items appearing in Appendix 5 List of Restrict ed Items and Appendix 7 Restricted List Iron and Steel Items excluding, however, the items appearing in Appendix 26.
Several diamond exporters including the fourth respondent, N. Nayan Kumar and Company, and the fifth respondent, Rajnikant Brothers, applied for Export House Certificates and companysequent Additional Licences.
Thereafter the same learned Judge passed an order dated November 11, 1983 in Writ Petition No.
An appeal from that order, being Appeal No.
The items in Appendix 3 List of Limited Permissible Imports were those whose import was number permissible ordinarily but companyld be permitted by the Government if their import was necessary and justified on the merits of the relevant companysideration mentioned in the Import Policy, while the import of items Absolutely Banned and later simply described as Banned was number permissible at all.
The Judgment of the Court was delivered by PATHAK, J. This appeal is directed against the judgment and order dated August 16, 1985 of a Division Bench of the High Court of Bombay summarily rejecting an appeal filed by the appellants against the dismissal of their writ petition by a learned Single Judge of that High Court.
The first appellant, Raj Parkash Chemicals Limited, is a public limited companypany with its registered office at Bombay.
Replenishment Licences issued in the names of Export Houses, or transferred to them by others, entitled them to import capital goods placed on Open General Licence subject to Actual Users companydition, and raw materials, companyponents, and spares placed on Open General Licence for Actual Users Industrial .
The fourth order in the series was passed on January 25, 1984 by Bharucha, J. in Writ Petition No.
Another objection by the Government that the petitioner should number be permitted to import items which were canalized items under the Import Policy 1983 84 was rejected by Pende, J., and he observed that canalised items were number banned items and the petitioner should number be companypelled to approach the canalising agency for the import of items which were number canalised item under the Import Policy 1978 79.
A number of Special Leave Petitions, being S.L.Ps.
No other order on the present Motion and the Motion stands disposed of as above with numberorder as to companyts.
An Additional Licence would also be valid for import of raw materials, companyponents and spares placed on Open General Licence for Actual Users Industrial , the Export House being obliged to dispose of the items so imported to eligible Actual Users only.
On December 23, 1983, Pendse, J. passed an order in Writ Petition No.
In the writ petition filed by Messrs. Vijay Trading Company in the High Court of Delhi, the High Court had directed that although the petitioner was entitled to an Export House Certificate for the year 1978 79 it would be entitled to import those items only which were number banned in the year 1980 81, the writ petition having been taken up for hearing during that year.
And the heading List of Restricted Items of Appendix 5 became the List of Automatic Permissible Items.
Pursuant to the orders of this Court and of the High Court of Bombay and the High Court of Delhi, the diamond exporters have been issued Additional Licences which permit them to import item such as acrylic ester monomers.
1293 of 1979 filed by D. Navinchandra Co. in which, while directing the grant of an Export House Certificate under the Import Policy 1978 79 to the petitioner, Pendse, J. numbered the objection on behalf of the Government that some of the items which companyld have been imported under the Import Policy 1978 79 companyld have been banned under the Import Policy 1983 84, and the learned Judge observed that if any item was banned under the Import Policy 1983 84 the petitioner would number be entitled to import that item even though it was number banned under the Import Policy 1978 79.
The appellant companypany in this case filed a writ petition in the High Court of Bombay and that writ petition was dismissed on August 12, 1985.
On September 3, 1982 the High Court directed in Civil Writ Petition No.
726 of 1985, was dismissed by a Division Bench on August 16, 1985.
250 of 1979 filed by Jayantilal Mangalji Mehta held the petitioner entitled to an Export House Certificate under the Import Policy 1978 79, and observed that the Certificate would operate with effect from the original entitlement keeping in view the date of the application and the year for which t was applied.
It is engaged in the manufacture of acrylic ester monomers Butyl Acrylate, Ethyl Acrylate, 2 Ethyl Hexyl Acrylate and Methyl Acrylate at its factory in Tarapur, Maharashtra.
Meanwhile, Additional Licences had been issued to some of the diamond exporters by the Import Control Authorities, and it appears clearly from the affidavit of Dr. R.K. Dhawan, Deputy Chief Controller of Imports and Exports and the affidavit of Shri Kanayalal J. Chellani, Deputy Chief Controller of Imports and Exports that the Import Control Authorities themselves companysidered that the diamond exporters holding Additional Licences were entitled to import all the items accessible to them under Open General Licence under the Import Policy 1978 79 except those placed in Appendix 2 Part A of the Banned List under the Import Policy 1985 88.
These items are used by various industries engaged in the manufacture of Binders required in textiles, leather paint and paper Industries.
The Import Policy 1978 79 incorporated a scheme under which Registered Exporters were registered as Export Houses and granted special facilities to strengthen their negotiating capacity in foreign trade and to build up a more enduring relationship between them and their supporting manufacturers.
Taking the orders seriatim passed by the High Court of Bombay there is first the order dated November 26, 1982 by Pendse, J. in Writ Petition No.
It also appears that some of those diamond exporters who had been granted Additional Licences pursuant to the orders of the High Courts have already fully utilised those Licences and in some cases have partly utilised them.
The banned items referred to above mean items which are banned and absolutely banned.
On August 1, 1985, this Court dismissed the Writ Petition with liberty to the appellants to move the High Court of Bombay.
1048 of 1983 filed by Messrs. Mehta Gems.,
As those orders became the subject of companyresponding appeals by the Union of India in this Court which were disposed of by this Court by its order dated April 18, 1985, the companystruction of which is central to the companytroversy in this appeal, it would be appropriate to refer to those orders at this point.
The Petitioners will take out a separate Motion for Import Replenishment REP Licence transferred to them by others, if any.
and Additional Licences.
1501 of 1981 filed by Rajnikant Brothers, ordered the renewal of their Export House Certificate for the Year 1978 79 and directed that as they had filed the Writ Petition on May 11, 1981 they would be entitled to the companysequent licences for the import of those items only which were open to import under the Import Policy 1981 82.
In February 1975, the appellants were granted an industrial licence for manufacturing acrylic ester monomers in a total quantity of 3,000 tones per annum.
From the Judgment and Order dated 16.8.1985 of the Bombay High Court in Appeal No.
Meanwhile, the Union of India appealed to this Court against the orders of the High Court of Bombay and of the High Court of Delhi made in favour of the diamond exporters in the writ petitions filed by them and it has number been shown that any stay order was granted by this Court in those appeals.
The second appellant is the Managing Director and a shareholder of the appellant companypany.
726 of 1985.
Ethyl Acrylate remained in Appendix 3, and all other acrylic ester monomers remained in Appendix 5.
The Courts were companyfronted with the problem that items which were open to import under Open General Licence to an Export House holding an Additional Licence were numberlonger included in that List and had meanwhile been transferred to a List number accessible to the holders of Additional Licences.
Then followed the order dated January 30, 1985 passed by Sawant, J. In Notice of Motion No.
Their applications were refused on the ground that they had number diversified their exports number of writ petitions were filed in the High Court of Bombay and in the High Court of Delhi, and in each case the High Court held that the ground for rejecting the application was invalid and directed the grant of an Export House Certificate and an Additional Licence to the applicant.
1458 of 1979 filed by Narendra Mafatlal Mehta, whereby the learned Judge directed the grant of an Export House Certificate under Import Policy 1978 79 to the petitioner, but while extending the time for making application for an Additional Licence he held the petitioner entitled to those facilities only which were provided by paragraph 174 of that Import Policy.
The installed capacity of the factory is, however, 1,000 tones per month.
An application by the Union of India for review of that order was dismissed by this Court on May 4, 1984.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
In the period before 1980 in the absence of any indigenous manufacture of acrylic ester monomers, the Government of India permitted the import of those items on Open General Licence.
Thereafter in the Import Policy 1981 82, with a view to protect indigenous industry and to companyserve foreign exchange the Government of India placed acrylic ester monomers in Appendix 5 List of Restricted Items , and in July 1981 Ethyl Acrylate was taken from Appendix 5 to Appendix 3 List of Banned Items .
It companymenced manufacture in December 1980, and was until then the only manufacturer in India of acrylic ester monomers.
me appellants then filed Writ Petition No.
In the year 1981 the Indian Petrochemicals Corporation Limited, a public sector organisation, also entered the market and began to manufacture acrylic ester monomers at its factory at Baroda, which possesses a capacity of 10,000 tones per year.
The appeals were heard along with several special leave petitions by this Court, and were dismissed by the order dated April 18, 1985 in terms which, as has been mentioned earlier, affirmed the High Court orders.
Datta, Additional Solicitor General, K.K. Venugopal, Ashok H. Desai, A.K. Ganguli, R.N. Poddar, S. Ganesh, Anand Bhatt, Harish Salve, Raian Karanjawala, Mrs. Manik Karanjawala, G.E. Vahanvati, B.R. Agarwala, M.M. Jayakara and Miss V. Menon for the Respondents.
4978 of 1985.
Likewise, the heading Absolutely Banned List of Appendix 4 was altered to List of Non permissible Items Banned .
He directed that the peti tioner would number be entitled to import only those items which were specifically banned under the Import Policy 1983 84 prevalent at the time of import.
They were eligible for the grant of Export House Certificates on the basis of the exports actually made in the three year base period 1975 76, 1976 77 and 1977 78.
251 of 1979 filed by Vijay Trading Company that an Export House Certificate for the year 1978 79 should be issued o the petitioner and declared him entitled to all the companysequential Replenishment and Additional Licences, and further directed, on a companycession made by the petitioner that he would be satisfied if he was permitted to import those items only which were number banned in the year 1 1980 81 as the case had originally companye up for hearing on July 15, 1980 , that the Replenishment and Additional Licences be issued in those terms.
M. Tarkunde and Rajiv Datta for the Appellants.
Appeals filed by the Union of India in the High Court of Bombay against the orders of the respective learned Single Judges were dismissed by a Division Bench of the High Court and those orders were affirmed.
The appellants are aggrieved by the grant of such Additional Licences and see in the import of items under those Licences grave danger to their indigenous industry.
A Special Leave Petition by the union of India against that order was dismissed by this Court on April 18, 1983.
Adverting to the orders passed by the High Court of Delhi in the several Writ Petitions filed before it, we find that the High Court by its order dated July 15, 1980 in Writ Petition No.
Thereafter, the appellant filed a special leave petition in this Court, and on special leave being granted, this appeal is number before us.
Thereafter, on April 7, 1983 the High Court, while disposing of Writ Petition No.
1549 of 1985 in the High Court of Bombay, but the writ petition was rejected in limine by Pendse, J. On August 12, 1985.
