http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 18  

PETITIONER: AGRICULTURAL AND PROCESSEDFOOD PRODUCTS

       Vs.

RESPONDENT: OSWAL AGRO FURANE AND ORS.

DATE OF JUDGMENT:       30/04/1996

BENCH: KIRPAL B.N. (J) BENCH: KIRPAL B.N. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1996 AIR 1947            1996 SCC  (4) 297  JT 1996 (5)    48        1996 SCALE  (4)109

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CIVIL APPEAL NO. 3787 OF 1992 Agricultural & Processed Food Prcducts V. Oswal Agro Furane & Ors.                             WITH                CIVIL APPEAL NO. 3786 OF 1992 Union of India & Anr. V. Oswal Agro Furane Ltd. & Ors.                             WITH             TRANSFER CASE (CIVIL) NO. 15 OF 1996 M/s. Oswal Agro Furane Ltd. & Anr. V. Union of India & Anr.                       J U D G M E N T      This judgment  will dispose of appeals arising from the judgment of the High Court of Delhi was permitted Oswal Agro Furance Ltd  hereinafter referred  to as  ’Oswal  Agro’)  to export non-  basmati rice  and T.C.  (C) No.15 of 1996 which was a  writ petition  filed by  the Oswal Agro in the Punjab and Haryana  High Court  seeking permission  to sell  in the domestic market the edible rice bran oil manufactured by it.      The Government  of India. Ministry of Commerce. on 31st December, 1980  issued a  notification whereby  a scheme was formulated to  facilitate setting up of 100% export oriented units. It was decided to give such units certain concessions so as  to enable  them to  meet figures of foreign demand in terms of  pricing, quality  precision etc.  Such  an  export oriented unit  was to  belong to  an industry  in respect of which the  export potentional  and export  targets had  been considered by  the relevant  Export Promotion  Council.  The units which  were intending  to set  up such industries were required  to  apply  for  approval.  to  the  Department  of Industrial Development. Ministry of Industry.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 18  

    The Punjab  State Industrial Development Corporation on 9th/22nd July,  1982, made an Application to the Ministry of Industry for  the grant of industrial licence to manufacture Furfural and other edible products in a 100% export oriented project. In  the application it was stated that the proposed project envisaged  the putting  up of  composite unit. inter alia, consisting  of two paddy shelling units, each having a shelling capacity  of 30  tonnes per  hour. The  application also further  stated that  after shelling the rice, the rice produced on custom basis would be returned back to the paddy suppliers: the  residual rice  husk would  be  subjected  to Furfural extraction  and edible  oil would be extracted from the rice  brar obtained as a bye product. It was stated that the edible  rice bran  oil so  produced would be 100% import substitution because  the country  was importing edible oil. On 19th  May, 1986,  industrial licence  was granted  to M/s Punjab Agro furane Ltd.. Chandigarh, Which was set up by the Punjab State  Industrial  Corporation.  The  new  industrial undertaking  was   to  have   an   installed   capacity   of manufacturing 3000  tonnes of  Furfural and  3000 tonnes  of Edible Rice  Bran Oil.  as a  bye product.  This licence was issued subject to various conditions one of which was that " the entire ’100 per cent’ production shall be exported.      Oswal Agro  entered into  an agreement  with the Punjab State Industrial  Corporation for  establishing the unit for manufacturing furfurel  and as  a result thereof the name of the Punjab Agro Furane Ltd. was changed to Oswal Agro Furane Ltd. On  18th May  1987, the  Government of  India issued  a letter by which the industrial licence dated 19th May. 1986. which had  been issued  for the  manufacture of Furfural was amended. By this amendment a number of additional conditions were included  in the  industrial licence. One of conditions which was incorporated was that the Rice shelling plant will not be  a part  of 1908  export oriented  project,  but  the Government may  consider granting  permission for the import of this  plant subject  to levy  of such  duties as  may  be decided at  that time.  This condition  regarding  the  rice shelling plant was challenged by the company by filing Civil Writ Petition No.3622 of 1987 in the Punjab and Haryana High Court. By  judgment dated  20nd June  1989  the  High  Court allowed the  writ petition  and held  that the project was a comprehensive one  and permission  for the  import  of  rice shelling plant  had by necessary implication been granted by the Government  of India  and, therefore, the plant could be imported without  payment of customs duty. This decision has become  final   as  the  same  was  not  challenged  by  the Government of  India. as  a  consequence  thereof  the  rice shelling plant  was  imported  by  the  respondents  without payment of customs duty.      One  more  condition  which  was  incorporated  in  the licence by  the aforesaid  latter  of  18th  may,  1987  was condition No.  (vi) which stated that "you shall also export rice bran oil produced in the 100% export oriented unit. If, however, it is so required by the Government. you will agree to supply  the said  oil to an agency that will be nominated by  the   Government  at   prices  not   higher   than   the international prices."  It was also by this amendment letter dated 18th  may. 1987,  that  it  was  recognized  that  the project would be implemented by M/s Oswal Agro Furane Ltd.      The  Government  of  India  on  30th  March,  1988,  in exercise of  its powers  under Section  3 of the Imports and Exports (Control)  Act, 1947,  issued the  Export  (Control) Order,  1988.   This  order   repealed  the  earlier  Export (Control) Order  1977 and  it came into force with immediate effect. Restriction  on export  of certain goods was imposed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 18  

by Clause  3 of the new Order which. inter alia. stated that "Save as  otherwise provided  in this  Order no person shall export any goods of the description specified in Schedule I, except under and in accordance with a licence granted by the Central Government  or by  an officer  specified in Schedule II." In this order a saving clause was inserted in Clause 15. In  the  Present  appeals  we  are  concerned  with  the construction of Clause 15 (j) of the said order, which reads as follows:      15. Saving  - Nothing in this Order      shall apply to --      (j) products  manufactured  in  and      exported from  the respective  Free      Trade Zones  and approved  100  per      cent Export  Oriented Units  except      textile items covered by agreements      arrangements;"      The aforesaid  Export (Control)  Order 1988 was amended by an  order dated  14th October,  1991 so  as to include in Part-C in  Schedule I in List II a number of items including non-basmati rice.  As a result of this amendment non-basmati rice was  allowed to  be exported  subject to  the following conditions exports  shall be  allowed against  registration- cum-allocation certificate  issued by  the Agricultural  and Processed Food  Product Export Development Authority (herein after  referred  to  ’APEDA’)  -  appellant  herein  .  This amendment was followed by a Trade Notice dated 15th October, 1991, issued  by the  appellant by  which procedure was laid down for allotment of quota which envisaged that the minimum export price  of non-basmati rice, which was fixed, was US $ 231 FOB  per MT.  This was  followed by  a letter dated 15th October, 1991 from Government of India to APEDA. inter alia. stating that additional quota of non-basmati rice for export subject to  minimum export price of US $ 231 per MT had been released and  it was  stated that  the  highest  unit  value realisation, and not cornering of quota by any party. should be the priority for allowance of export.      It is  in the background of the aforesaid facts that we may now  refer  to  the  filing  of  the  petitions  by  the respondents with which we are now concerned.      On 7th  January,1991, Writ Petition No.561 of 1991, was filed by  Oswal Agro  in the  Punjab and  Haryana High Court wherein they  challenged the  validity of  Clause No.(vi) in the aforesaid  amendment letter  dated 18th May, 1987 and it was contended  that they  were under no obligation to export the addible  rice bran oil and that they should be permitted to sell  the same  in the  domestic tariff  area. It is this writ petition  which. Vide  this Court’s  order  dated  14th March. 1996.  has been transferred to this Court and is T.C. (Civil) No.15  of 1996.  On 12th  January, 1992,  Oswal Agro filed another writ petition No. 42 of 1992 in the High Court of Delhi claiming that it was not bound by the provisions of the Export (Control) Order, 1988 and it should be allowed to export,  without   any  restriction,  the  non-basmati  rice produced by it.      It will  be appropriate  at  this  stage,  to  consider points arising  in these  two cases.  the Delhi case dealing with the case of export of rice and the Punjab case relating to the export of edible rice bran separately.      The case  relation to export of rice: The writ petition was filed  in the Delhi High Court because vide letter dated 7th January,  1992., the  Assistant  Collector  of  Customs, Kandla, did  not allow  the export  of rice  and,  in  fact, directed Oswal  Agro to  unload  the  rice  which  had  been loaded.  It   appears  that   the  action   by  the  customs

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 18  

authorities had  been taken  when the  appellants herein had informed the  Assistant Collector  of Customs  Kandla,  that export of  non-basmati  rice  could  be  allowed  only  when registration-cum-     allocation  certificates  are  issued. Inasmuch as Oswal Agro wanted to export the non-basmati rice without, any  registration-cum- allocation  certificate from the appellant  and below  the minimum  price which  had been fixed  the   aforesaid  action  was  taken  by  the  Customs Authorities of  stopping Oswal  Agro from exporting rice. In the writ petition filed by the respondents in the Delhi High Court it  was contended  that being  a 100  per cent  export oriented unit,  it was  exempted from any trade restriction, inter alia,  by virtue  of the  saving Clause  is (j) of the Export (Control)  Order 1988.  Another contention  which was raised was  that  the  fixation  of  minimum  price  by  the appellant  herein  was  without  any  power  and  authority. Further contending that Oswal Agro had entered into a number of contracts  for the  export of rice, it was submitted that the appellants  herein were  estopped from stopping the said export.  According   to  Oswal  Agro  it  had  entered  into contracts dated  16th October,  1991. 15th October; 1991 and 21st October.  1991, whereby  it  was  under  a  contractual obligation to  supply 1,07,000  M.T. of  non-basmati rice to M/s Continental  Grain Company,  New York. It is an admitted case that the price at which Oswal Agro wanted to export the non-basmati price, without any registration or authorisation from the  appellant was  US $  213 per M.T., i.e., below the minimum price fixed by the appellant herein.      On 15th January, 1992, the Delhi High Court issued rule nisi and,  by an  interim order  of the same day, stayed the operation of the aforesaid order dated 7th January, 1992, of the Assistant Collector of Customs, Kandla and directed that there shall  be no  interference in  the loading/shipment of non-basmati rice  by Oswal  Agro to the extent of 13200 M T. It was  further  directed  that  this  was  subject  to  the condition that  Oswal Agro  will furnish  a security  of the amount of  difference between the minimum price fixed by the appellants herein  and the  price at which the said quantity of rice  was being  exported by  Oswal Agro and the security was to  be furnished  within the weeks after completition of the shipment/export of the said quantity of rice.      By judgment dated 31st March, 1992, a Division Bench of the Delhi High Court allowed the aforesaid writ petition. It accepted the  contention on  behalf of  Oswal Agro  that the provisions of  the Export  (Control) Order,  1988, were  not applicable  to   the  respondents  by  merely  observing  as follows:      " The  contentions of Mr. Banerjee,      the   learned   counsel   for   the      petitioner appears  to have  force.      As stated  hereinabove, in terms of      clause  15   (j)  of   the   Export      (Control) Order  1988,  nothing  in      this order  shall apply  to the 100      per cent  export oriented  Unit. In      view of  the aforesaid  clause  the      notification  dated  14th  October.      1991. by  which the  said order has      been amended, will not apply in the      petitioner’s    unit    which    is      admittedly a  100 per  cent  export      oriented  unit.   Since  the  Trade      Notice dated  15th  October,  1991.      has been  issued  pursuant  to  the      notification  dated  14th  October,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 18  

    1991, the  same will also not apply      to the   exports  being made by 100      per cent export oriented Units."      The High Court also held that there was no provision in the Export (Control) Order 1988 for fixing the minimum price for non-basmati  rice. By  taking note of the fact that vide letter dated  15th October,  1991, of the appellants herein, the last  date for  exporting the  entire quantity  of  non- basmati rice  was 31st  March, 10 1992, the High Court while allowing the  writ petition  granted three  months’ time  to export the  balance quantity  of 83800  M.T  of  non-basmati rice.      On 15th May, 1992,in Special leave Petition (C) No.6854 of 1992,  fuled by  the appellant,  from which  Civil Appeal No.3785 of  1992 arises,  this  Court  while  directing  the petition to be listed on 8th September 1992, gave Oswal Agro the  liberty   to  export   the  rice  in  question  on  the undertaking that  in the event of the Court holding that the item was a canalized item and Oswal Agro was not entitled to export the  same, then it would make good the difference, as determined, in dollars.      Notwithstanding the  fact that  the  aforesaid  special leave petition  was pending  in this Court, Oswal Agro moved another miscellaneous  application  before  the  Delhi  High Court in  which it was stated that by the end of June, 1992, 66,099.680 M  T. of  non-basmati rice  would be exported and that for  exporting the  remaining quantity in question time may be  extended upto  31st August,  1992. and  it  be  also permitted to  export the same to buyers other than with whom the earlier  contracts were alleged to have been entered. On 9th July,  1992, the High Court allowed this application and extended the  time till  8th September,  1992, to export the balance quantity  of rice  but with the observation that the same was "subject to the conditions laid down by the Supreme Court in  their order dated 15th May, 1992." Thereupon. this Court on  8th September,  1992, granted  leave to appeal and stayed the operation of the High Court judgment.      On behalf  of the  appellant it is contended by Mr.R.F. Nariman, learned  senior counsel that the industrial licence which had  been granted  was only for the manufacture of two items, namely,  furfural and  edible rice  bran oil and this was subject to the condition that the entire 100% product of these items  was to  be exported  He further  submitted that according to  clause 15  (j) of  the Export (Control) Order, 1988, only the export of Furfural and its bye product edible bran rice  oil was  saved from  the operation  of the Export (Control) Order,  1988 and  not the  export  of  non-basmati rice. Elaborating  this submission  he  contended  that  the construction placed by the High Court on Clause 15 (j) would mean that  so long  as there  was  a  100%  approved  export oriented unit then it could export any goods irrespective of what was  approved to  be manufactured  for export  by  that unit. It was also contended that filing of the writ petition in the  Delhi High Court was a clear abuse of the process of the court  inasmuch as  the petition  had been filed without making any  reference to the earlier Writ Petition No.561 of 1991 which  was filed  in the  Punjab and Haryana High Court and that the statements made in both the writ petitions were contrary to  each other. It was also contended that the High Court in its discretion ought not to have granted any relief to Oswal  Agro on  the principle analogous to Order 2 Rule 2 of the  Code of  Civil procedure.  Lastly. it  was submitted that Oswal  Agro had  exported 86,500 MT of non-basmati rice in violation  of the Export (Control) Order and by virtue of the undertaking  given by  it to this Court, it is liable to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 18  

pay the  difference between  the actual export price and the minimum  export   prise  fixed  by  the  Government  and  so calculated this  difference which comes to US $ 24.54,644 at the current foreign exchange rates.      Mr. Ram  Jethamalani. learned  senior counsel for Oswal Agro at the outset conceeded that in terms of the industrial licence Oswal Agro was under no obligation to export basmati rice. According  to him the only obligation which it had, in terms of  the licence, was to export Furfural and not edible rice bran  oil. For  justifying the  export  of  non-basmati rice, Mr. Jethmalani relied upon clause 15 (j) and submitted that the   said  clause was  not confined to the end product governed by  the IDR  Act but  is extended  to bye  products manufactured in  that factory. In other words his submission was that  an export oriented unit, by virtue of Clause 15(j) was entitled  to export not merely the good mentioned in the industrial Unit but also other products manufactured in that factory. He  submitted that  with respect  to  the  licensed product the Oswal Agro was under an obligation to export but because of Clause 15(j) the Oswal Agro, on its own volition, the export  oriented unit could export other items which are also manufactured  in that  factory. It  was contended  that what was  sanctioned in  the case  of the  respondent was  a project which  started form  the stage of dehusking of paddy and, therefore,  whatever was covered by the scheme would be covered by  Clause 15 (j). While referring to Clause 15 (j), it was  contended that it was not intended for exemption for those  items  which  a  unit  was  obliged  to  export  and, therefore, a different meaning or purpose should be assigned to Clause  15(j). By  giving the  construction to  the  said clause, as  canvassed  by  the  appellant.  Mr.  Jethamalani contended that  it would  result in changing the language of the said  clause.  Clause  15(j),  it  was  also  submitted, brought in the geographical or topographical concept thereby meaning  that   whatever  was  manufactured  in  the  export oriented unit  was free  form the  shackles  of  the  Export (Control) Order,  1988. In  the end it was contended that by using  the  plural  word  products  in  Clause  15  (j)  the implication was  that it  was to  apply to  all the products manufactured in that unit.      Before considering  the rival  contentions. it  will be important to  see the scheme which was proposed for approval by the  respondent. The  following table set out in the Writ Petition No.  3622 of  1987 filed  by the  respondent in the Punjab and Haryana High Court is relevant: Paddy Rice Mill White         Rice       Rice          Rice Rice          Flour      Husk          Bran                          Furfural      Rice Bran Oil                          Extraction    extraction Exhausted                              Edible rice Rice husk                              bran oil Boiler        Steam      Furfural                 and               Powder Steam Turbe Generator Surplus powder of State Grid.      A bare  perusal of  the aforesaid  table shows that the raw material  which was  required  for  the  manufacture  of Furfural is rice husk while for the manufacture of rice bran oil  the   raw  material  required  is  rice  bran.  In  the application dated  9th/22nd July,  1982  for  the  grant  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 18  

industrial licence.  it was  clearly stated  that though the respondent proposed  to set  up two shelling units but after shelling the rice produced on custom basis would be returned back to  the paddy  suppliers. It is only in order to obtain sufficient quantity  of raw material, namely, rice husk that a composite  project was  proposed  which  contemplated  the setting up  of a  rice mill as well. Under the circumstances it will  not be  correct to  state that  the  immediate  raw material required for the manufacture of Furfural was paddy. on fact the raw material was rice husk. though, no doubt the same is  obtained after  shelling of  paddy.  Therefore  the process of  shelling  of  paddy  by  the  respondent,  which results in  the production  of non-basmati  rice as  well as rice  husk,   is  not   an  essential  requirement  for  the manufacture of Furfural.      Clause 15  is a  saving provision  and not an exemption clause. A  saving provision  or clause merely preserves what exists. In, Statutory Interpretation by F.A.R Bennion Second Edition, at, page 494 and 495 the learned author with regard to the  saving clause has sand that "A saving is a provision the intention  of which  is to  narrow  the  effect  of  the enactment to which it refers so as to preserve some existing legal rule  or right  from its operation. A saving resembles a proviso,  except that  it has  no particular form. Further more it relates to an existing legal rule or right whereas a proviso  is   usually  concerned   with  limiting   the  new provisions made  by the  section to  which it  is attached." Again at  page 494  and 495 it is  stated "A saving is taken not to  be intended  to confer any right which did not exist already." To  the same effect is a decision of this Court in Shah Bhojraj  Kuverji  Oil  Mill  and  Ginning  Factory  Vs. Subbash Chandra Yograj Sinha ([1962] SCR 159). while dealing with the effect of a proviso it was observed as follows:      "         The law  with  regard  to      provisos is  well- settled and well      understood, As  a general  rule,  a      proviso is added to an enactment to      qualify or  create an  exception to      what  is   in  the  enactment,  and      ordinarily,  a   proviso   is   not      interpreted as  stating  a  general      rule. But  provisos are often added      not as exceptions or qualifications      to  the   main  enactment   but  as      savings  clauses,  in  which  cases      they  will   not  be  construed  as      controlled  by   the  section.  The      proviso which  has been added to s.      50 of the Act deals with the effect      of repeal." Dealing with  the proviso to Section 7 of the Bombay General Clauses Act. the Court observed as under:      "The  substantive   part   of   the      section repealed two Act which were      in force in the State of Bombay. If      nothing more  had been said, s.7 of      the  Bombay   General  Clauses  Act      would have applied, and all pending      suits and  proceedings  would  have      continued under  the old law, as if      the  repealing  Act  had  not  been      passed. The  effect of  the proviso      was to  take the  matter out of s.7      of the  Bombay General  Clauses Act      and  to   provide  for   a  special

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 18  

    saving. It cannot be used to decide      whether  s.12   of  the   Act.   is      retrospective"      Clause 3  and 15  of the Export (Control) Order have to be read  together. Clause  3 places  restrictions and  makes provision  with  regard  to  export  of  good  specified  in Schedule I  and Schedule  III of  the Order.  If, however, a case falls  within any  of the  various provisions  of  sub- clauses of  Clause 15, then in that case only the Order does not  apply.   Clause  15,  to  put  it  differently.  merely preserves any right or obligation which existed prior to Clause 15  (j) merely  preserves the  right of Oswal Agro to export those  products which  it could  expert  as  on  30th March, 1988,  and any  amendment in the schedule to the said Order, like  the one  made on  14th October, 1991, would not and cannot  give Oswal  Agro a  right to  export non-basmati rice. which  right it  did not  have on 30th March, 1988. On 30th March, 1988, when the Export Trade (Control) Order 1988 was promulgated  Oswal Agro  had an industrial licence which made it  obligatory  to  export  its  entire  production  of furfural. It  was this  right to  export furfural  which was preserved by  Clause is  (j) and  Oswal Agro  could make its exports without following the provisions of the said Order.      It is  true that  a unit  which sets up a rice mill for the purpose of producing non basmati rice is not required to obtain a  licence under  the I.D.R. Act but under the scheme of 31st  December 1980  even those units or industries which were not  covered by  the I.D.R.  Act could be registered By making an  application under Clause 6 of the said scheme. If there was  such a  unit producing non-basmati rice, then the export by  such a unit would be saved by virtue of Clause 15 (j).      Keeping in view the nature of a saving provision. it is not possible  to accept  the contention  of Mr.  Jethamalani that on  the plain  reading of  the  said  sub-clause  every product manufactured  in a  100% export  oriented  unit  was exempt from  the applicability of the provisions of the said Order Clause  15 clearly provides that what is saved are the products for  which the export oriented unit is approved and not  any   other  product   manufactured  by  it.  The  word ’approved’ in  sub-clause (j) of Clause 15 must be read both with the  words ’products’  as well  as with  the words  the ’export oriented  unit’. A  unit is  granted approval, as an export oriented  unit in  respect of  specific product to be manufactured  by   it.  The  names  of  those  products  are indicated in  the licence  granting approval  and the saving Clause  15   (j)  is   applicable  to   those  products  the manufacture and  export of which has been approved as a 100% export oriented  unit. The  language of  the said sub-clause is, in our opinion capable of no other interpretation.      The submission  that sub-clause (j) of Clause 15 of the said Order  brings in  geographical or topographical concept does not  flow from  the scheme of the Order or the language of the clause. When the Clause 15 (j) refers to "100% export oriented  unit" it is quite obvious that the clause has been inserted in  the Export  Trade (Control) Order. 1988 in view of the  promulgation and  existence of  the export promotion scheme of  1980. The  said scheme  for export oriented units was for  grant of  approval for  the manufacture of products which,  according   to  the   conditions  contained  in  the approval, had  to be  exported from  the country.  It is the contention of  the respondent herein that under the terms of its licence  it was  under  an  obligation  to  export  only furfural and  no other  product. It is on this basis that it has  been   contended  in  the  transferred  case  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 18  

respondent is under no obligation to export edible rice bran oil.  The  obligation  to  export  the  entire  quantity  of Furfural manufactured  by it  arises because  of a  specific condition contained  in the industrial licence which were as follows:      i)  The   entire  (100   per  cent)      production shall be exported.      ii) You  shall  export  the  entire      production (100%)  less rejects not      exceeding 5(five)  per cent  for  a      period of 10 (ten) years."      Clause 15  (j) had  to be  inserted so  as to save such conditions which  had been  incorporated in  the  industrial licence which  was issued  to the  respondent. Had Clause 15 (J) not  been incorporated  in the  Order it  may have  been possible for a unit to try and contend that by virtue of the restriction on  exports being  placed by  Clause  3  of  the Export (Control)  Order, the  unit was  not in a position to export its products. though it was obliged to do so when the licence was  issued. The implication of the insertion of the saving clause,  therefore,was that  the  existing  right  or commitment for the export of the products was not in any way curtailed or  taken away  by the  promulgation of  the  said Order. No  extra right  or licence  to export an item. which the unit  could not  previously export.  was  sought  to  be conferred by Clause 15 (j).      The use of the word "products" in plural, does not mean that every  product made  or produced  in the  unit could be exported. The  said word "products" signifies that there may be more  than one  produce  which  may  be  required  to  be exported to  be exported  in terms of the industrial licence or registration of the export oriented unit and clause 15(j) would save the export of all such items.      There is  also no  merit in  the  contention  that  the appellant could  not fix the minimum price at which the non- basmati rice could be exported. according to Clause 3 of the Order no  person can  export any  good  of  the  description specified in  Schedule I  except and  in accordance with the licence granted  by the  Central Government  or  an  officer specified in the Second Schedule. Clause 4 of the said Order provides that a licence which is granted under the order may contain such  conditions which are not inconsistent with the Act or the Order, as the licensing authority may deem fit to impose, On  14th October.  1991. the  Export Trade (Control) Order was amended and in Schedule I in List II part C of the said Order Entry No.65 was inserted which reads as follows: "65 grains and flour, namely:- i)   Non basmati rice                   Export shall ii)  Wheat                              be allowed iii) Wheat products viz.                against      raws, resultant atta,      wheat bran.                        registration- iv)  Maida, suji and whole              Cum-allocation      meal atta (wheat flour      of not less than                   certificate      95% extraction)                                         issued by the v)   Barley                             Agricultural vi)  Maize                              Processed Food vii) Bazra                              Products Export viii) Jowar                              Development ix) Ragi                                Authority                                          (APEDA)      The aforesaid entry made the appellant as the authority

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 18  

which was  entitled to  allow exports  against registration- cum-allocation certificate  and reading  the same along with Clauses 3  and  4  of  the  Export  Trade  (Control)  Order, conditions not inconsistent with the Act or the Order. could be imposed  while permitting  export. One  of the conditions imposed by  the appellant for export of non-basmati rice was that it could not be exported at less than the minimum price fixed by  it and. in our opinion, it was clearly entitled to do so.      The reliance  by the High Court on the earlier decision of the  Punjab and Haryana High Court, while allowing import of capital  goods, is  clearly misplaced. That writ petition was concerned  only with the question of import of machinery for the  purpose of  shelling paddy which would enable Oswal Agro to  obtain the raw material required by it namely, rice husk. That  petition was  not concerned with the question of export of  rice and,  therefore the  said  decision  had  no application to  the present  case. The  question whether the rice shelling  plant was  a part  of a  100% export oriented unit is  wholly immaterial  while considering in the present case whether Oswal Agro could export non-basmati rice.      It was  also contended  by Mr. Jethamalani that even if it be  assumed that  the High  Court has  taken an erroneous view and  had wrongly concluded that Oswal Agro could export non-basmati  rice.   this  Court.   in   exercise   of   its discretionary  jurisdiction   under  Article   136  of   the Constitution, should not interfere.      The facts  as stated  hereinabove, on  the other  hand, show that  the High  Court ought  not to  have exercised its jurisdiction under Article 226 of the Constitution. for more than one  reason, and, therefore, it would be incumbent upon this  Court   to  interfere   under  Article   136  of   the Constitution and  not to  allow Oswal Agro to take advantage of an  obviously wrong  decision of  the High Court. Firstly the High  Court misconstrued  Clause 15 (j) of the Order and held that  because Oswal  Agro was  an export oriented unit. therefore, it  could export  any item  manufactured  by  it, which conclusion  is wholly  incorrect.  Secondly  the  High Court ought  not  to  have  entertained  the  writ  petition because of  Oswal Agro’s  conduct. It  had filed  an earlier writ petition  in the  Punjab and Haryana High Court dealing with the  same issue,  namely, its  obligation and  right to export its  products under  the licence  and in terms of the Export (Control)  Order. It  is possible that the Delhi High Court may  not be aware of the pendency of the writ petition in the  Punjab and  Haryana High Court. regarding the export of edible  rice bran  oil, because  there is no reference to the filing  of the  said case  in the writ petition filed in the Delhi High Court. Oswal Agro is guilty of suppression of this very important fact. It was contended in the Punjab and Haryana High Court that it was under no obligation to export the edible  rice bran  oil and  its only  obligation was  to export Furfural  while, in  the writ  petition filed  in the Delhi High  Court,  a  some  what  contrary  contention  was raised, namely.  that being  an export oriented unit, it was entitled  to   export  non-basmati   rice,  in  addition  to Furfural. Had  Oswal Agro  indicated in  the  writ  petition filed in  the Delhi  High Court  that it  had also  filed  a petition in  the Punjab  and Haryana  High Court  which  was still pending,  relating to  export of edible rice bran oil. the  Delhi   High  Court   most  probably   would  not  have entertained the  petition because  the proper  course  which should have  been followed  by Oswal  Agro was to raise this contention, regarding  export of  non-basmati rice,  in  the writ petition  filed in the Punjab and Haryana High Court or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 18  

to file a new petition there.      Under these circumstances. the exercise of jurisdiction under Article 136 of the Constitution is clearly called for, more so when it is admitted that the respondent had exported over 87000 M.T. of non-basmati rice at a price less than the minimum price fixed by the appellant.      For the  aforesaid reasons  we conclude that Oswal Agro could not  in law,  export non-basmati  rice. The Delhi High Court, instead of passing interim orders and allowing export of non-  basmati rice,  ought to  have dismissed  the  write petition.      It was contended by the learned counsel that even if it be assumed  that the  export of  non-basmati rise  below the minimum price  fixed by  the appellant  was not  permissible even then  the only  loss which  has been  suffered  by  the appellant was the 5% on the difference in the price at which the rice was exported and the minimum price which was fixed. Elaborating the  contention it  was submitted  that the sale proceed of  the rice  which was exported would always belong to the  respondent and  the appellant  was only  entitled to receive 5%  of the proceed. Therefore it there was an export at less  than the  minimum price fixed then the shortfall of the amount which is receive would be to the account of Oswal Agro. The  loss to  the appellant  herein, it was submitted, would only  be to  the extent  of 5% of the sale price which should have  been realized  and the  difference between  the actual sale  price and  the  minimum  price  fixed  was  not payable by Oswal Agro to the appellant.      We are  unable to  agree with the aforesaid submission. lt is  clear that  Oswal Agro  had exported non-basamti rice which. in law. it was not entitled to export without getting the permission  from the  appellant and at a price less then what was  fixed by  it. The export was possible only because of the  interim orders  which were passed First by the Delhi High Court  and thereafter  by this  Court. To recapitulate, the first interim order was passed on 15.1.1992 by the Delhi High Court  permitting the  export of  the said  rice on the condition that  Oswal Agro  would furnish  a security of the amount of  difference between the minimum price fixed by the appellant herein and the price at which the said quantity of rice was  exported by  Oswal Agro  Thereafter, this Court on 15.5.1992, when Oswal Agro wanted to export more non-basmati rice. passed  order to  the effect that "in the meantime the respondents will  be  at  liberty  to  export  the  rice  in question on  the undertaking  that in the event of the Court holding  that   the  item  was  a  canalized  item  and  the respondents were  not  entitled  to  export  the  same,  the respondent will  make good the difference, as determined, in dollars". The  third interim  order was  passed by  the High court of  Delhi on  9.7.1992 when it permitted the export of balance quantity of rice but observed that this was "subject to the  conditions laid down in this Court’s aforesaid order of 15.5.1992".      First the  Delhi High court on 15.1.1995 and thereafter this court  in its  order dated 15.5.1992 made it clear that the export was being permitted subject to the condition that Oswal Agro  would made  good the  difference in  dollars  if ultimately it was held that they were not entitled to export the said  rice. After  the imposition  of such an condition, Oswal Agro  chose to  make the export of rice. It availed of the permission  which was  granted by  the courts and as the permission was  a conditional one, it is now open to them to contend that  it is  not liable  to make good the difference when it  has been found that they were not, in law, entitled to export  rice without  authorisation  from  the  appellant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 18  

herein. Having  taken advantage of the interim orders of the Delhi High  court and  of the  order dated 15.5.1992 of this Court, in  particular, Oswal Agro cannot now be permitted to escape form  the condition  which was  imposed upon  it even though, if  a valid authorisation had been issued for export of rice,  the appellant  may have  been entitled  to receive only 5% commission but as Oswal Agro has made export of rice in violation  of law and under the conditional orders passed by this  Court. it  cannot be  now allowed to say that it is not liable  to pay the difference between the price at which the rice  was exported  and the  minimum price  fixed by the appellant. The  liability  to pay to the appellant, in other words, arises by virtue of interim orders passed by the High Court and  this  Court  which  orders  are  binding  on  the parties. Edible Oil      As regards  the  challenge  to  the  amendment  of  the industrial licence  vide letter  dated 18th May, 1987 Clause (vi)  was   included  as  an  additional  condition  in  the industrial licence, which reads as follows      "You shell  also export  rice  bran      oil produced  in  the  100%  export      oriented unit. If however, it is so      required  by  the  Government,  you      will agree  to supply  the said oil      to a  agency that will be nominated      by the  Government  at  prices  not      higher   than   the   International      prices "      This amendment was made nearly one year after the grant of the industrial licence and more than four and a half year after the issuance of a letter of intent. The very insertion of this  clause shows  that, prior  thereto. Oswal  Agro was probably under no obligation to export edible rice bran oil. In the  industrial  licence  originally  issued  it  is  not mentioned that  edible rice  bran oil had to be exported. On 13th June. 1986, an agreement was entered into between Oswal Agro and  the Government in which it was specifically stated that "the unit shall earn foreign exchange by exporting 100% of their  products of  furfural for  a period  of ten years, counting from  the prescribed  dates after  allowing rejects upto 5  per cant of production as aforesaid." This agreement makes specific  no mention  of Oswal  Agro  being  under  an obligation to export edible rice bran oil.      The question  which arises  is whether  the  industrial licences could  be amended  so as  to incorporate a specific condition requiring the export of edible rice bran oil.      The  Government   had  framed   "The  Registration  and Licensing of  Industrial  Undertakings  Rules,  1952"  under which  applications   had  to  be  filed  for  grant  of  an industrial licence  under the  Industries  (Development  and Regulation) Act, 1951. Admittedly these rules are applicable and the industrial licence dated 15th May, 1986 specifically states that  the  same  was  being  issued  by  the  Central Government in exercise of the powers conferred on it by Rule 15 (2) of the said Rules.      Rule 16  of  the  said  Rules  makes  a  provision  for variation or  amendment of  licence. The  said Rule reads as follows:      "16.  Variation   or  Amendment  of      Licences -  (1)  Any  owner  of  an      industrial undertaking  in  respect      of  which   a  licence   has   been      granted, who  desires any variation      or amendment  in his  licence shall

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 18  

    apply   to    the    Ministry    of      (Industrial Development) giving the      reasons  for   the   variation   or      amendment.      (2)  The  Ministry  of  (Industrial      Development)  after   carrying  out      such  investigation   as   it   may      consider  necessary,  may  vary  or      amend the  licence. The Ministry of      Commerce  and   Industry  may  also      consult  the   Licensing  Committee      before coming to a decision "      Before the issuance of the licence on 19th May, 1986, a letter of  20th August,  1982 was  written by  the Director, Punjab  State  Industrial  Development  Corporation  to  the Secretariat for  industrial approval,  Government of  India, Ministry of Industries. In which it was stated as follows:-           We are  prepared to  undertake      to export  100% production  of  the      edible rice  bran oil  and de-oiled      cake. Also  we are  ready to export      Polished  rice  produced  from  our      project   if    allowed   by    the      Government of  India.  Pursuant  to      the aforesaid undertaking it was in      the letter  of  intent  dated  20th      October.  1982,   issued   by   the      Government of  India, the two items      whose manufacture was Permitted was      Furfural with an annual capacity of      6000 tonnes  and edible  rice  bran      oil "as  a  bye  product"  with  an      annual capacity  of 3000 tonnes. It      was further stated in the letter of      intent  that   "the  entire   100%"      production shall be exported"."      Though in the industrial licence dated 18.8.1986 on the formal agreement  executed thereafter,  there was no mention with regard  to the  expansion of  edible race bran oil. the Secretary, Government  of Punjab,  Department of  Industries wrote a  letter dated 30.7.1986 (photocopy of which has been placed on  record in  this Court  by the appellant) in which reference was  made to  the approval  of  the  company  from Punjab Agro  furane Limited  to Oswal  Agro furane  Limited, cancellation of  an agreement with a foreign company; change of financing pattern for the project as approved by the term lending institutions:  and  revalidation  of  capital  goods import beyond  two years  as the letter of intent was issued on 25.10.1982.  This letter  also replied  to  some  queries which appeared  so have  been raised  by the officers of the Ministry of  Industries  and  in  response  to  one  of  the queries, it was, inter alia, stated as follows:      "The rice  bran, so obtained, would      be  processed   tor  production  of      edible  grade  rice  bran  oil  and      deoiled  cake.  The  company  would      export deoiled  cake. It  has given      an  undertaking  to  export  edible      rice bran  oil also,  as  and  when      Permitted by  Government of  India.      Presently,  large   quantities   of      edible oil  are being  imported and      export  of   edible  oil   is   not      permitted. Till  export  of  edible      rice bran  oil is  permitted,  this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 18  

    oil can  be sold  to  the  domestic      market directly  ar through a State      designated agency  and  has  to  ba      treated as a deemed export."      It was  also mentioned  in this  letter that  they were prepared to  export rice  ’if so  permitted by Government of India’. This  latter also  contained the  amount of  foreign exchange which  could be  earned by  exporting furfural rice bran cake,  edible grade  rice bran  oil "if  permitted" and non-levy rice  "if permitted". The statement to this effect. in the said letter, was as follows:      "It  may   be  mentioned  that  the      project  does   not  envisage   any      recurring import  of  raw  material      The only concession, which it would      enjoy under  100% EOU,  is one time      duty-free  import   of   equipment,      presently not being manufactured in      India for  the  requisite  capacity      and specifications. It will earn an      annual foreign  exchange of Rs.5.80      crores per  year (Annex.I) if it is      permitted to  export only  furfural      and rice  bran cake.  It will  earn      foreign exchange of Rs.10.70 crores      per  annum   (Annex.II)  if  it  is      permitted’ to  export  edible  rice      bran oil  in addition  to  furfural      and rice bran cake. It will be able      to  earn   a  foreign  exchange  of      Rs.16.10    crores     per    annum      (Annex.III) if  it is  permitted to      export non-levy  rice, edible grade      rice bran  oil, rice  bran cake and      furfural.  The   company  is  in  a      position to  export even  rice husk      ash from  the boilers,  at the rate      of  70  tonnes  mer  day  and  earn      foreign exchange  equal to  Rs.1.50      crores per year (Annex IV) "      After the  receipt of the aforesaid letter the impugned letter was issued amending the licence of Oswal Agro whereby the aforesaid  condition No.  (vi)  relating  to  export  of edible rice bran oil was also incorporated.      It is  clear from  the aforesaid letter written and the undertaking given,  that Oswal  Agro was  willing to  export edible rice  bran oil, if it was permitted to do so. In fact it had  also indicated  the amount of foreign exchange which it would  earn by  the export of edible rice bran oil. It is on the receipt of the aforesaid letters, specifically letter dated 30th  July, 1996.  which was  followed by  a  reminder dated 6th  November, 1986,  that  the  impugned  letter  was issued on  18th May,  1987, amending the industrial licence. The amendment now made, whereby clause (vi) was incorporated in the  industrial licence,  had the  effect of  making it a condition for Oswal Agro to export edible rice bran oil. Under Rule  16 (2)  of the  aforesaid Rule  the owner  of an industrial undertaking may ask for variation of amendment of the licence  and, while  doing so, amend or alter or add any one or  more conditions.  Inasmuch as  the export  promotion scheme of 1980 had been promulgated with a view to encourage export oriented  units so  as to earn more foreign exchange, it is  not surprising  that, viewed  in  that  context,  the Government of  India accepted  the request for permission to export edible rice bran oil and a specific condition to that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 18  

extent was  incorporated in  the industrial  licence by  the amendment letter  dated 18th May, 1987. It is interesting to note that though the amendment in the industrial licence was made  or  18th  May,  1987,  no  protest  against  the  said amendment appears  to have  lodged by Oswal Agro. The reason obviously must have been that this amendment was sought for, and in  fact as  far back  as 1982  an undertaking to export edible rice  bran oil  had been given and even in the letter dated 30th  July, 1986,  the  respondent  had  categorically stated  that  it  was  willing  to  export  edible  oil,  if permitted. Oswal  Agro did  not readily  protest and, on the contrary, commenced  the production of the rice bran oil. It also accepted  the other  amendments made  in  the  license, which had  been sought by it. Under these circumstances, and seeing the  conduct of Oswal Agro. it is not entitled to any relief under  Article 226  of the  Constitution  as  it  was obliged to export the rice bran oil.      In the  writ petition which was filed in the High Court at Punjab  and Haryana,  and which  has been  transferred to this Court, Oswal Agro have not made any mention with regard to the aforesaid letters dated 20th August. 1982, containing the undertaking  to export  edible rice  bran oil and letter dated 30th  July 1984.  in which again it is stated that the rice  bran  would  be  exported  if  the  Government  grants permission. These  are material  documents  and  they  would explain the  reason as to why the Government vide its letter dated 10th  May, 1987,  amended the  industrial licence  and incorporated therein the condition that the respondent would export the  entire quantity of edible rice bran oil produced by it.      It will  also be  seen in  the  said  letters  of  20th August, 1982  as well  as of 30th July, 1986. not only was a mention made  with regard  to the export of edible rice bran oil but  an undertaking  was given that if it was allowed it would also  export polished rice produced at its unit. While providing for  the export  of edible  rice bran oil. when an amendment to  that effect  in  the  industrial  licence  was carried out  vide letter  dated 18th May, 1987, no amendment was made  in the  industrial licence for granting permission for export  of rice,  even though such permission was sought for. It  can,  therefore,  be  concluded  that  whereas  the Government had  agreed to  allow Oswal Agro to export edible rice bran oil produced by it, and had made it a condition of the industrial  licence, no  such permission  was granted in respect of  export of  rice. This  would  be  an  additional reason for  dismissing Oswal Agro writ petition filed in the Delhi High Court and for allowing the appellant’s appeal.      In the Writ Petition filed in the Punjab & Haryana High Court what  was impugned was the decision of the Customs and Excise  Authorities   of  Chandigarh  in  not  allowing  the respondents to  clear the rice bran oil for sale in domestic tariff area.  The prayer  in the  Writ Petition, inter alia. was that Oswal Agro should be allowed to clear the rice bran oil manufactured  by it for sale in the domestic tariff area as it was not obligatory on its part to export the rice bran oil  produced  by  it.  The  High  Court  vide  order  dated 14.1.1991, inter alia. stayed the operation of the aforesaid clause (vi)  of the  letter dated  18.5.1987  requiring  the export of  rice bran  oil subject to the undertaking that if the Writ  Petition was  dismissed, then  Oswal Agro would be liable to pay an amount equal to the custom duty leviable as if the  edible bran  oil was  deemed to  have been imported. This was  followed by  another interim order dated 4.2.1991. after notice  to the  opposite party, whereby Oswal Agro was granted permission to sell the rice bran oil in the domestic

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18  

tariff area. The oil which had been produced so far had been stored in  the custom  bonded area  and  by  this  order  of 4.2.199 t  was further  directed that  the said oil would be released under  The supervision  of  the  concerned  Revenue Officer. The  interest of  the  revenue  was  sought  to  be safeguarded by  the Court  directing  that  ar.  undertaking should be filed by Oswal Agro that in the eventuality of the dismissal of  the Writ  petition, they  will pay the customs duty along  with interest  treating the  oil  to  have  been imported.      Apart from the fact that by virtue of the interim order of the High Court Oswal Agro has an may duty, inasmuch as it has now been held by us that the respondent was not entitled to sell  the rice bran edible oil in the domestic market and he was  under an  obligation to  export the same, Oswal Agro was infact  not entitled to the type of interim relief which was granted  by the  High Court.  As will  be presently seen it’s conduct has been such that it succeeded in obtaining an interim order  contrary to  the statutory  provisions  which were applicable.      According to  Section 3  of the Central Excise and Salt Act, 1944  (hereinafter referred  to as  ’the Act’), duty of excise was payable on any excisable goods which are produced or  manufactured  inter  alia  by  a  100%  export  oriented undertaking and  allowed to be sold in India. The proviso to sub-section 1  of Section  5A of the Act further states that general exemption which is granted under Section 5A (1) will apply to excisable goods which were produced or manufactured by a 100% export oriented undertaking and allowed to be sold in India.  Sub-section 2  of the  said Section does give the Government power  to exempt  from payment of excise duty any excisable goods  by passing  a special order to that effect. But, in the present case, no such exemption duty in fact was applicable.  It   appears  that   a  Notification   granting exemption from  payment of excise duty of goods manufactured in a  100% export  oriented  undertaking  vide  Notification dated 9.12.1988  was issued  under Section  5A(1) of the Act but  by  a  subsequent  Notification  dated  20.3.1990,  the earlier Notification  of 9.12.1988  was rescinded. The clear effect of  this was  that with  effect from 20.3.1990. there was no  exemption from  payment of  excise duty on the goods manufactured by  a 100%  export oriented  units which  goods were cleared for sale in domestic market.      In a  present case  the oil which had been produced was stored in  a bonded  warehouse and  it  is  only  after  the interim orders  of the  Punjab and  Haryana High Court dated 4.1.1991 and 4.2 1991 that the oil was cleared from a bonded warehouse. As  on that  day,  by  virtue  of  the  aforesaid Notification dated  20.3.1990. there  was no  exemption from payment of  excise duty  on edible  rice bran  oil and  full amount on duty was payable on clearance of the goods.      Neither in the Writ Petition nor in the application for stay, was  there any  prayer with  regard to  non-payment of excise duty  by Oswal Agro. Even if the impugned clause (vi) in the  amended licence.  which made it obligatory for Oswal Agro to  export its entire quantity of edible rice bran oil, had been  quashed even then for the purposes of removing the oil from  the bonded  warehouse for  sale  in  the  domestic market, excise  duty in  any  case  was  payable.  Under  no circumstances, was Oswal Agro entitled to any order, interim or final,  which could  have allowed  it to  clear the goods without payment  of excise  duty.  The  High  Court  clearly overlooked the  statutory provisions  of Section 3 and 5A of the Act  and Oswal Agro got an unfair and under advantage as a reason  thereof. It  is, therefore, not only liable to pay

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18  

the amount  of excise  duty which was due and payable but it also has to pay interest thereon.      What is  the rate  of interest  which should be paid on the amount of excise duty payable is the next question. In a case like the present, Oswal Agro has clearly gained a undue advantage by obtaining an order which it was not entitled to get in accordance with law. Oswal Agro which is a commercial organization had  approached the  High Court  in exercise of its discretionary  jurisdiction under  Article  226  of  the Constitution of  India purportedly to get justice. In actual fact it sought and obtained interim orders which resulted in its not  becoming liable  to pay excise duty which. under no circumstances, could  have  been  a  matter  of  dispute.  A litigant who obtains an incorrect order and does not pay the statutory dues  should not  be allowed to make any profit or gain from  the  infraction  of  law.  The  money  which  was legitimately due  to the  Government has  been  utilized  by Oswal Agro  in its  business. Dealing  with such  case which have financial  implications involving  business  houses  or companies it  is the  commercial principles  which  must  be applied by the Court while ordering payment of interest. Had Oswal Agro  instead of  using the Government money, obtained the said  amount of  loan from  a bank. it would have had to pay interest  thereon at  the bank  rate then  prevailing. q lending institution like a bank would normally have advanced money for the purposes of business at the bank rate which is fixed with  periodical rest.  In addition  thereto,  a  bank would normally  also obtain  a collateral  security so as to safeguard the  loan advanced  by it.  Oswal Agro has, on the other hand,  not paid  the excise dues to the Government and the  Government  money  has  presumably  been  used  in  its business. No  collateral security has been furnished by them because  none   was  ordered   by  the  Court.  Under  these circumstances. there  is no  reason as  to  why  Oswal  Agro should not  be  required  to  pay  at  least  that  rate  or interest, and  on such  terms, as  it would have to pay to a bank if  that amount  of money  had been  obtained by  it on loan. Keeping  this principle  in mind, it would be just and proper that  Oswal Agro  be directed  to pay, in addition to the excise  duty payable,  interest at  the rate  of 18% per annum. CONCLUSION:      In view of the aforesaid discussion Oswal Agro is under an obligation  to pay  the  difference  between  the  actual export price  and the  minimum export  price, fixed  by  the Appellant in  respect Of  non-basmati rice exported by it in view of the interim orders which had been passed by the High Court and  this court  permitting such  export. According to the appellant  taking into  consideration the total quantity of rice  exported by  Oswal Agro  between  April.  1991  and March, 1992  when the  minimum export price was filed at the rate of  US $  231 per MT and between April, 1992 and March, 1993 when  the minimum  export price  fixed was US $ 270 per M.T. the total amount payable by Oswal Agro would come to US $ 24,54,644  at  the  current  foreign  exchange  rate.  We, accordingly, direct  this amount to be paid by Oswal Agro to the appellant within a period of four weeks from the date of this judgment.      With regard to payment of duty regarding rice bran oil, counsel for  both the  parties have  placed their respective charts on  the record  showing the  amount which is payable. Whereas, according  to Oswal  Agro the total duty payable is only  Rs.  6,88,59,894.00/-which  includes  basic  duty  and auxiliary duty,  according to  the appellant  the total duty payable is  Rs. 19,75,55,192.97/-  and, in  addition thereto

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 18  

interest of  12.55,09.088.40/- as  interest @  18%  P.A.  is payable. There  is no  dispute, as  the  charts  show,  with regard to  the quantity  of rice  bran oil  which  has  been cleared by Oswal Agro from 1990-91 to 1995-96. There is also no dispute  with regard  to the  sale  price  received.  The difference in  the final  figure arises  because Oswal  Agro have claimed  deduction by  way of expenses towards freight, control rebate  and discount.  In addition  thereto. lt  has claimed that  duty is payable at a lower rate in view of the Notification  dated  17.10.1991  which  had  the  effect  of reducing the  effective rate of duty. The appellants, on the other hand,  have contended that the benefit of Notification like that of 7.10.1991 is not available since Oswal Agro had not obtained  permission from  the authorities for clearance in the domestic tariff area.      The perusal  of the  Notification in question indicates that the effective rate of excise duty on clearance of goods from 100% export oriented unit to domestic tariff area would stand reduced  if the  goods so manufactured are "allowed to be sold  in India".  Oswal Agro never took permission of the authorities concerned to sell the rice bran oil in India. It is only by virtue of interim orders which were passed by the Punjab &  Haryana High Court in 1991, after being opposed by the authorities,  that the  oil was  removed from the bonded warehouse  and   sold  in  the  domestic  tariff  area.  The conditional order  passed by  the High  Court permitting the sale of  the oil  in the  domestic  tariff  area  cannot  be regarded as  Oswal Agro having been allowed to sell goods in the  domestic  tariff  area  as  contemplated  by  the  said Notification dated  7.10.1991. In  that view of the matter., full amount  of basic duty and auxiliary duty was payable by it. Taking  into consideration  the different  quantities of oil cleared during different periods and keeping in view the current  rate  of  duty,  the  total  amount  of  basic  and auxiliary duty  payable by  Oswal Agro  would  come  to  the aforesaid figure  of Rs.  19,75,15,192.97/- as calculated by the appellant.  In addition  thereto ,  Oswal Agro  is  also liable to  pay interest @ 18% as calculated by the appellant herein which  comes to  Rs. 12,55,09,088.00/-.  It is hereby directed that  Oswal Agro  shall pay this amount of duty and interest within  eight weeks  from the date of this judgment and it shall also pay to the appellant herein, as well as to the Union of India, one set of costs which are quantified at Rs. 50,000/-.