Bimal Chandra Basak, J. - (1.) In view of the final order which we propose to pass and to which the parties have also not raised any objection, we need not go into the facts in detail. The grievance of the petitioner in the main writ petition, who are the appellants before us, was regarding replenishment licence out of exports made by them. We are concerned with the year 1983-84, that is, 1983 April to 1984 March. Regarding this period in view of relevant import policy which is in paragraph 138, the petitioners were entitled to certain replenishment licence. The endorsement required is under sub-paragraph 14 of Rule 138. The Rule 138 is set out hereinbelow. 138(1). REP licences issued to manufacturer-exporters, against their exports of products manufactured by them will be valid, within their overall value for import of any items of raw materials, components, consumables, spares and packing materials, required by them for use in their factories subject to "Actual User" condition. This special facility will be subject to the conditions laid down hereunder. (2) This facility will also be available to manufacturing Export Houses against REP licences issued to them on their exports products manufactured by them. (3) Imports of items mentioned in Appendices 3,6 and 30 will be allowed only upto 20 per cent of the face value of the REP licence subject to the condition that value of a single item should not exceed Rs. 1.0 lakh (or shall not exceed Rs. two lakhs in the case of manufacturer whose f.o.b. value of exports of select products in any of the two previous financial years was at least 25 per cent of the book value of his production of select products with a minimum of Rs. 10 lakhs f.o.b.), however, the aforesaid items appearing in column 4 or column 5 in Appendix 17, against the relevant export product will be allowed to be imported under this facility to the extent permitted in column 4 or column 5 or under the General Conditions laid down in Appendix 17, or to the extent permitted under this facility, whichever is more favourable to the importer. (A single item for this purpose will have the same meaning as laid down in para 31 of this policy). (4) Import of canalised items mentioned in Appendix 8 of this policy will be permitted upto 20 per cent of the face value of the REP licence subject to the condition that the value of a single item should not exceed Rs. 1.0 lakh (or shall not exceed Rs. two lakhs in the case of manufacturer whose f.o.b. value of exports of select products in any of the two previous financial years was at least 25 per cent of the book value of his production of select products, with a minimum of Rs. 10 lakhs f.o.b.). Canalised items in Appendix 9 of this policy will not be allowed import of components/modules of Electric watches, clocks, time-pieces and import of flint buttons mentioned in Appendix 8 will also not be allowed. However, canalised items appearing in Column 4 or column 5 in App. 17, against the relevant export product, will be allowed to be imported under this facility to the extent permitted in column 4 or column 5 or under the general conditions laid down in Appendix 17, or to the extent permitted under this facility, whichever is more favourable to the importer. (5) Items mentioned in Appendix 4 of this policy will not be allowed. (6) Import of tools including consumable tools will be allowed under this facility subject to the value restriction on items referred to in sub-para (3) above. (7) Import of instruments will not be allowed under this facility. (8) Import of Items other than tools referred to sub-para (6) above, mentioned in Appendices 5 and 7 of this policy will be allowed under this facility. For this purpose, an additional value will also be allowed to the licence-holder, equal to 10% of the f.o.b. value of exports against which the REP licence in question has been issued. This additional 10% value will not be allowed to be utilised for import of any other items and will not form part of the licence value for any other purpose. (9) Manufacturer-exporters wanting to make use of this facility should get their licences endorsed from the licensing authorities concerned. The licensing authorities will make the following endorsement on such licences:- This licence will also be valid for import of items permissible under para 138 of Import Export Policy 1983-84 and shall be subject to "Actual User" condition as laid down in Schedule 7 to the Imports (Control) Order, 1955." (10) The facilities available to manufacturer-exporters in this para will also be available to manufacturers whose products are exported by others. (This facility is meant for those manufacturers only, not necessarily a Registered Exporter, whose product was actually exported and not for other manufacturers of the same or similar product. It is also not meant for manufacturers of packing materials of the product exported.) In cases where this facility is sought to be availed of, the exporter concerned while applying for import replenishment licences, will also furnish a declaration giving the name and address of the manufacturer whose goods were exported, and stating that the REP licence may be issued in the name of that manufacturer. Upon such declaration the REP licence will be issued in the name of the manufacturer concerned with an endorsement that it will be valid for the special facilities under para 138 of Import-Export Policy 1983-84 in the same manner as laid down in sub-para (9) above. (11) The facilities under this para will be available in respect of REP licences issued in 1983-84, irrespective of the export period to which they belong. (12) REP licences endorsed for utilisation under this para shall be non-transferable. It is, however, open to an exporter to make use of this facility only for a part of his REP entitlement, and to get for the remaining part of freely transferable REP licence. In such cases, the REP entitlement will be split up into two separate licences, namely, transferable and non-transferable. The transferable licence will be issued for the items as permitted in Appendix 17 against the relevant export product. The non-transferable licence will be issued for "raw materials, components, consumables, spares and packing materials as permitted under para 138 of Import-Export Policy 1983-84". In the case of such non-transferable licences, the additional value for import of restricted items referred to in sub-para (8) above will be 10% of the f.o.b. value of exports against which the main REP licence was issued, and not the proportionate part of f.o.b. value. (13) The value limits laid down in sub-paras (3) & (4) above, for import of items appearing in Appendices 3,6,8 and 30 will not apply in a case where the concerned manufacturer of the product exported, has been exporting at least 50% of his production of select products in any of the two previous financial years, subject to a minimum of Rs. 5 lakhs f.o.b. REP licence-holders making use of this facility will be required to obtain a specific endorsement on the REP licence to this effect on production of Export Performance Certificate to the licensing authority concerned. (14) The flexibility in the utilisation of REP licences allowed under para 138 will also be available to Export Houses and Training Houses, subject to the following conditions: - (a) The facility will be available in respect of REP licences obtained by Export Houses/Trading Houses on their own exports of those export products which carry import replenishment rate of not more than 20% in Appendix 17. (b) The materials imported shall be disposed of only to their supporting manufacturers, subject to 'Actual User' condition. For this purpose, the Export Houses and Trading Houses shall give a list of their supporting manufacturers in advance to the licensing authority. The list once given by them shall not be liable to change in the course of the licensing period. That list shall form part of the import licence, with the condition that the materials imported shall be disposed of to the Actual Users given in that list. (In the case of Export Houses, the list shall not inlcude more than 50 such manufacturers. This restriction shall not, however, apply to Trading Houses). (c) The value restrictions on the import of items appearing in Appendices 3,6,8 and 30 in the case of Export Houses and Trading Houses will be the same as stipulated in sub-paras (3) & (4) above for the units exporting 25% of their production of select products with a minimum of Rs. 10 lakhs. (d) The items allowed for import under this facility by Export Houses and Trading Houses will be those as are required as raw materials, components, consumables, spares and packing materials by their supporting manufacturers referred to above, subject to various restriction and conditions laid down in para 138. (e) The additional 10% entitlement for import of items in Appendices 5 and 7 provided in sub-para (8) will not be available to Export Houses and Trading Houses. (f) Each Export House and Trading House making use of this facility shall furnish a separate quarterly return to the regional licensing authorities concerned, giving the description of the items and their value imported and disposed of to Actual Users with their complete address and industrial registration number. Each quarterly report should reach the licensing authority concerned within a month from the expiry of the quarterly period, failing which the facility provided shall be liable to be withdrawn for the rest of the licensing period. (15) Import of components under para 138 by DGTD units subject to phased manufacturing programme will be governed by the List Attestation procedure contained in Chapter 20 of this Book. In the case of Export Houses and Trading Houses, import of components shall also be subject to the conditions laid down in Chapter 18. (16) Import of test, measuring and quality control instruments used in electronic industry will be allowed upto 20% of the licence value subject to the value of a single item not exceeding Rs. one Lakh, within the overall value of the licence under para 138 of this policy subject to 'Actual User' condition."
(2.) In respect of 12 such replenishment licences endorsement under sub-paragraph 14 was rejected solely on the ground of circular No. 15/83 dated 31-5-1983. The circular is as follows: "Para 138 of Import and Export Policy (Vol.1) 1983-84, provides a measure of flexibility in the utilisation of REP licences issued to manufacturer-exporters, manufacturers and Export Houses/Trading Houses subject to the condition laid down. In respect of some export products in Appendix 17 of the Import and Export Policy (Vol. I), additional import entitlement has been allowed in Column 5 meant for import of specified items only, for example, 15% additional entitlement has been allowed for import of OTS Containers in product Group 'G', likewise, additional entitlement of 15% has been allowed for import of sugar in the same product group. It is clarified that such additional import entitlements are not allowed to be used for import under the flexibility provision of para 138 referred to above. Against such additional entitlements, only the items specifically permitted in Column 5 will be allowed. "In Sub-para 138(11) of the current Policy, it has been provided that facilities in this sub-para will be available in respect of REP licences issued in 1983-84, irrespective of the export period to which they belong. It is also clarified that the endorsements made under para 138 on or after 15-4-1983 on REP licences issued prior to that date, will also be subject to the conditions laid down in the policy for 1983-84 and not the policy of 1982-83."
(3.) The learned judge dismissed the writ petition.;