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PETITIONER: M/S DARSHAN OILS PVT. LTD. & ANR.

       Vs.

RESPONDENT: UNION OF INDIA & ORS

DATE OF JUDGMENT08/11/1994

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) PARIPOORNAN, K.S.(J)

CITATION:  1995 AIR  370            1995 SCC  (1) 345  JT 1995 (1)   219        1994 SCALE  (4)840

ACT:

HEADNOTE:

JUDGMENT: 1.   Leave granted in all the special leave  petitions. Civil     Appeal  No. 7153 of 1994 (Arising out of  SLP  (C) No. 20837 of 1993) 221 2.   The Import and Export Policy for the period 1.4.1983 to 1.4.1994 and declared by the Central Government by issue  of an order in exercise of the powers conferred by Section 3 of the  Import  and Export (Control) Act, 1947  giving  general permission   for  import  into  India  of   raw   materials, components and consumables by users (industrial) subject  to certain conditions which included the following:-               "22.   Items covered under Part - III  of  the               Schedule to this licence can be imported under               OGL  by Actual Users (Industrial) and  others,               for stock and sale."               "26.   Such  goods  arc  shipped  on   through               consignment to Indian on or before 31st March,               1984   or,  in  the  case  of   Actual   Users               (Industrial)  on  or  about  30th  June   1984               against confirmed order for which  irrevocable               letters  of credit are opened and  established               on  or  about 29-2-1984 with no  grace  period               whatsoever.  " 3.   Split  stearin  fatty acids were not a  canalised  item under  that Policy.  The appellants entered into a  contract with  a  foreign  supplier  for import  of  fatty  acids  on 1.8.1983  and  3.10.1983  opened an  irrevocable  letter  of credit in favour of the foreign supplier.  On 11. 11.  1994, the  Central Government issued a public notice amending  the said Policy for the period April to March 1994 where by  the import  of  fatty  acids  became  a  canalised  item.    The amendment clearly provided that import of fatty acids  could be  made  only by the State Trading Corporation  under  Open General Licence and therein it was stated as under :-               "3.  Import of items referred to in para 2  of

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             this public notice shall not be allowed  under               any  import  licence already issued  or  under               paras  31,  34,  37, 38, 138 and  203  of  the               Import  & Export Policy, 198384 or  under  any               other provision of the Import & Export  Policy               1983  & 84, except against shipments from  the               country of origin already effected before  the               date of this Public notice.  This  restriction               will not, however, apply to the imports by STC               of India Ltd."                                    (emphasis supplied) Thus, the amended Policy effective from 11. 11. 1993 made it clear that import of fatty acids was not allowed  thereafter even under any import licence already issued "except against shipments from the country of origin already effected before the  date of this public notice".  In other words, the  only exception  made  for  import of the  canalised  items  under import  licences already issued was in respect of the  ship- ments already effected from the country of origin before the date  of  said  amendment, that is, of  shipments  of  which transit  had already commenced from the country  of  origin. The  shipment in question arrived at Bombay on 9.2.1984  and it  is  not  the appellants case that  this  shipment  falls within  the exception indicated above.  This being  so,  the shipment  of  fatty  acids in the present  case,  not  being covered  by  the  exceptions made in the  amendment  to  the Policy effective from 11. 11. 1983 and the import being  not through  the  State Trading Corporation, the  appellant  has been  denied the benefit of its import being covered by  the Policy prior to its amendment. 4.   The appellants filed a writ petition in the Bombay High Court  challenging the amendment made by the  public  notice dated   11.11.  1993.   That  writ  petition   having   been dismissed, this appeal has been filed by special leave. 5.   The challenge to the public notice 222 dated  11.11. 1983 by the appellants in the High  Court  was based  mainly on the doctrine of promissory  estoppel  which has been rejected by the High Court.  A similar challenge on the ground of promissory estoppel has been rejected by  this Court  in Kanishka Trading & Anr. etc. v. Union of  India  & Anr.  (C.   A.  Nos.  4  3 3  6  etc.  of  1994  decided  on 19.10.1994)  JT 1994 (7) SC 362.  Accordingly,  decision  of the Delhi High Court in Kaptan’s Enterprises and Another  v. Union  of  India,  AIR 1986 Delhi  221  cannot  furnish  any support to the appellants in the present case.  Shri  Harish Salve, learned counsel for the appellants made no attempt to support  the appellants’ case on the doctrine of  promissory estoppel.   This  point  does not,  therefore,  require  any further consideration. 6.   The submission of Shri Harish Salve,    learned counsel for  the appellants is that in irrevocable letter of  credit having  been  opened  by the appellants  it  favour  of  the foreign  supplier  on 3.10.1983 prior to  amendment  of  the Policy  by  the public notice dated 11.11.1983, it  was  not feasible  for the appellants to prevent the shipment of  the goods thereafter, and, therefore, not extending the  benefit of  exception  to such cases also, confining  the  exception only  to  actual  shipments made prior to  issue  of  public notice  dated 11.11. 1983, is unreasonable and violative  of Article  14.   Learned counsel submits that  opening  of  an irrevocable  letter of credit prior to issue of  the  public notice  being,  lawful, its consequence could  not  be  made unlawful  by a subsequent amendment of the Policy.   Learned counsel  also submitted that amendment of the Import  Policy

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by issue of a public notice can be only prospective, but  in this manner it has been made retrospective.  Shri Subba Rao, learned  counsel for the Central Government  submitted  that the  exception is applicable only to such goods  which  were already  in transit on account of the shipments having  been made-’  and  the  only consequence of the  amendment  is  an increase  in the tax which is not violative of  Articles  14 and 19 of the Constitution. 7.   We  are unable to accept the submission of the  learned counsel, for the appellants’ These submissions are merely  a different facet of the doctrine of promissory estoppel which has been held inapplicable in such a situation.  In Kanishka Trading  which  related  to  withdrawal  of  exemption  from payment of duty etc. in exercise of the statutory powers, it was  reiterated that the power to exempt includes the  power to modify or withdraw that benefit: and the liability to pay duty  under  the Customs Act, 1992 arises when  the  taxable event  occurs being subject to payment of duty as  prevalent on the date of the entry of the goods.  It was held that the doctrine  of  promissory estoppel could not  be  invoked  to question the withdrawal of notification issued under Section 25  of  the  Customs Act, 1962 when it was  done  in  public interest.  Equities have to be balanced and public  interest must outweigh individual interest, Kanishka Trading  clearly holds  that  withdrawal  of such a benefit can  be  made  in public interest during the period for which the benefit  had earlier been intended, in our opinion, this is sufficient to indicate  the  fallacy inherent in the submissions  made  on behalf of the appellant. 8.   In D. Navinachandra & Co., Bombay & Anr. etc. v.  Union of  India & Ors., [1987] 2 S.C.R. 989, it was  clearly  held that the entitlement to import items 223 which  were  canalised  or not, is governed  by  the  import Policy  prevalent  at the time of import.   In  the  present case,  the  import  of a canalised items  being  made  after amendment   of  the  Policy  of  the  public  notice   dated 11.11.1983 in a manner not permitted by the amended  Policy, the  appellants  cannot  claim to  avoid  the  logical  con- sequences  of the import being made contrary to  the  import Policy  prevailing  at  the time of  import  of  the  goods. Exemption   under  the  amended  Policy  being  limited   to shipments  already  made cannot be  termed  unreasonable  or unduly  restrictive.  Obviously, the exception was  made  to cover  only those goods of which the shipment had been  made and  were in transit, excluding all such goods of  which  no shipment had been made.  The classification between goods in transit and those of which the transit had not begun, cannot be called irrational or unreasonable in the context. 9.   Reliance  by Shri Harish Salve on the decision in  M/s. Universal Imports Agency and Another v. The Chief Controller of  Imports  and Exports and Others, [1991]  1  S.C.R.  305, which deals with the meaning of the expression ’things done’ in  a general sense is misplaced.  In the present  case  the language of the exception made in the amended Import  Policy is  clear and unequivocal excluding from its ambit all  such goods,  except  those  in transit because  of  the  shipment having   already  been  made.   That  decision   does   not, therefore, require any further consideration. 10.  For the aforesaid reasons, the appeal has no merit  and is  dismissed with Rs. 10,000/- (Rupees ten thousand)  only, as costs, Civil  Appeal Nos. 7154 & 7155 of 1994 [arising out  of  SLP (C) Nos. 13040 and 14337 of 1994] 11.  In  view  of the decision in Civil Appeal No.  7153  of

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1994  [arising out of S.L.P. (C) No. 20837 of  1993),  these appeals  are  also dismissed with  Rs.   10,000/(Rupees  ten thousand) only as costs in each appeal. 224