- (1.) The writ petitioner carries on business by the style 'Bhawani Textiles'. It made some exports. Under the extant policy of the Government of India, on 16th July, 2004 he was granted a DEPB-Post Export licence. THE initial period of its validity was 12 months. THEreafter, in accordance with a public notification issued by the Government of India this licence was renewed till August, 2007.
(2.) Now, this licence was transferable. This could be transferred by the writ petitioner to any person provided the customs authorities issued a "telegraphic release advice". This "telegraphic release advice", as I have understood, is nothing but a confirmation or a no objection by them regarding such transfer. This licence entitles the writ petitioner to duty benefit to the extent of Rs.9.47,615/- for importation of goods specified in the licence itself. It appears from the records that duty benefit initially granted was Rs.10.04,307/-. Thereafter, at the intervention of the customs, it was reduced to Rs.9.47,615/-. The writ petitioner intended to transfer this licence in favour of Telco Construction Equipment Company Ltd. This company, upon transfer, would have the same entitlement. For this, the writ petitioner needed that "telegraphic release advice" from the customs. The petitioner applied for it by his letter dated 29th June, 2005. The customs authorities replied by their letter dated 1st July, 2005. They raised serious disputes about the entitlement to this duty benefit saying that the goods actually exported were different in classification or description to the goods described in the shipping bills. Therefore, the "telegraphic release advice" could not be issued.
(3.) The effect of this is revocation of licence or benefits thereunder. Mr. Ramesh Choudhury, learned Counsel appearing for the petitioner in support of his contention has cited a judgment of the Bombay High Court in Pradip Polyfils Pvt. Ltd. vs. Union of India, 2004 173 ELT 3 which says that once the licensing authorities have held that the export product was covered under the DEPB Scheme, it was not open to the customs authorities to hold that the said export product was not covered under the DEPB Scheme. Mr. Vinay Misra, learned Counsel appearing for respondents has said that when the said letter dated 1st July, 2005 was issued by the customs authorities, the licence was valid. Thereafter the licence remained valid till 2007. The writ petitioner took no steps and allowed the licence to expire. So, there is no question of renewal of that licence because that licence has expired because of the fault of the writ petitioner. Further, Clause-4.50 of the Handbook of Procedures (1.9.2004 to 31.3.2009) of the Ministry of Commerce and Industries, Government of India says that no revalidation of licence could be made unless it expires in the custody of the licensing/customs authorities. Hence, according to him, there is no question of revalidation of the licence. He has also referred to two cases, i) Sheshank Sea Foods Pvt. Ltd. vs. Union of India, 1996 88 ELT 626 and (ii) Collector of Customs vs. Pankaj V. Sheth, 1997 90 ELT 31 (Paragraphs-23 and 24). According to him, on a reading of the decisions when an import or export has been made wrongfully, the customs authorities do have the power to investigate such wrongful import or export and in doing so they have the power to go into the question of duty entitlement under a DEPB Scheme based on such investigation. Therefore, the action of the customs authorities by their letter of 1st July, 2005 is justified.;