LexOSWAL WOOLLEN MILLS LTD. & ANR. versus UNION OF INDIA & ORS.
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A B c D E F G H 362 OSWAL WOOLLEN MtLLS LTb. & ANR. v. MNION OF INDIA & ORS. July 11, 1983 (S. MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.] Import Policy, 1981·82-Paragraph 138 (1)-Replenishment Licence acquir~d by transfer by a Tradihg House-Whether endorsement can be refused on the fround that Replenishment Licence had· not been issued against export of its own products 1 The appellant which was a manufacturer-exporter as well as a recognised Trading House acquired a Replenishn:_ient Licence by transfer from another manufacturer-exporter and, desiring to import raw materials, components, etc., requir~d for use in its factories under that Licence, sent it to the third respon- dent requesting that the transfer of the Licence in its name be recognised and an endorsement made thereon to make it valid for import·· of items permitted under paragraph 138 (1) of the Import Policy, 1981-82. The third respondent fc,iCcted the request on the basis of an office Circular dated 31-8-1981 issued by the second respondent which directed the licensiqg authority not to grant ·endorsement under paragraph 138 (1) unless the Replenishment Licence had been issued to the applicant against export of its own products. The appe1lant's writ petition challenging the validity of the circular dated 31-8-1981 as well as the order made on its application for endorsement of the licence was rejected by the High Court. Allowing the appeal, HELD: Paragraph 140 of the Import Policy, 1981·82 clearly states that Replenishment Licel).ce will be issued in the name of the Registered Ex.porter only and will not be subject to 'Actual User• condition and that except for cases covered by paragraphs 136 (2), 185 (2) and t 86 (1) the licence holder may transfer the licence in full or in part in favour of any other person and that the 1icence holder or such transferee may import the goods permitted therein but the facility of. paragraphs 136, 137 and 146 shall not be available to any transferee unless the transferee is himself a Re- gistered Exporter and can satisfy the Custom Authorities at th~ time of clearance of the goods of his bonafides. The goods sought to be imported by the appellant on .the basis of the Replenishment Licence in question do not fall under parag- raphs 136 (2), 137, 146, 185 (2) and 186 (I) mentioned in paragraph 140. Reco- OSWAL MILLS v, UNION (Varadarajan, i.) 363 gnised Trading Houses like the aPpellant are entitled to certain facilities under paragraph 195 (4) and one of them mentioned in paragraph 195 (4) (ii) is import replenishment licences transferred to them by others. fhus, the appellant is entitled under paragraphs 140 and 195 (4) (ii) to the facility of the Import Policy as a transferred of the Replenishment Licence issued in the name of the actual manufacturer-exporter against exports made by that manufacturer~ exporter. [370 B-El · · The contention of the respondents that under paragraph 138 (1) the faci- lity to import raw materials, etc., under the Replenishment Licence is available only to the actual manufacturer-exporter against whose exports the Replenish- ment Licence was issued amounts to reading into paragraph 138 (1) the words "against the exports of products manufactured by them" after the words "manufacturer-exporters'' and before the words "will be valid ... ".That is what is sought to be done by the impugned Circular dated 31-8-1981. The High court was right in saying that the Circular appears to change the Import Policy but it erred in saying that the condition mentioned in the impugned order is found in paragraph 138 (1). No such conditionJs to be found in paragraph 138 (1). It is significant that paragraph 138 (1) was not mentioned in paragraph 140. It is also significant that in the Import Policy for the subsequent year 1982·83 the words "against their exports of products mannfactured by them" have been actually inserted in paragraph 138 (1) after the words "Replenishment Licences issued to manufacturer-exporter" and before the words "will be valid .. ". [370 E-H, 371 A-BJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 591of1982 Appeal by Special leave from the Judgment and Order dated A B c D the 18th November, 1981 of the Delhi High Court in Civil Writ · E Petition )'lo. 2581 of 1981. WITH Writ Petition No. 802 of 1982: (Under article 32 of the Constitution of India). So/i J. Sorabjee and Rajlv Dutta for the Appellant. M.M.
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