Documente Academic
Documente Profesional
Documente Cultură
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ORDER
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By this petition, the petitioner seeks to have declared illegal, arbitrary and
unconstitutional, the following words in Policy Circular No.13(RE-2008) dt. 30.6.2008
produced with the writ petition as Annexure-4 “units who have been granted marble block
import licence under previous licensing years or are eligible to avail license in the current
licensing year (2008-09) under SIL category”. Other relief as claimed is, that the petitioner
may be declared entitled to avail import license under Annexure-4.
It is then alleged, that for the year 2008-09, the Director General issued Policy
Circular No.12 dt. 27.6.2008, laying down guidelines for import of rough marble blocks for
the year 2008-09, and the upper ceiling of the total import was fixed at 1.40 lacks metric ton.
This Circular has been produced as Annexure-3. Then, the said Director also issued a Policy
Circular No.13 dt. 30.6.2008, in addition to the previous guidelines, according to which,
units, who have been granted import licences under SIL, or who are eligible for avail
licences, in the current year, under the SIL, have been excluded. It is also alleged, that
quantity of licence or entitlement of licence thereunder, is in accordance with gang saw
machines installed in the premises. This Circular No.13 has been produced as Annexure-4.
The precise challenge, for the above relief, is on the ground, that according to
Annexure-4, the eligibility is based on the criteria being, units, who have installed marble
gang saw machine, and the units should have been in operation since prior to 31.3.2001, and
from out of this category, 100% EOU's, units in SEZ, and units who have been granted
marble block import licence under previous licensing years, or are eligible to avail licence in
the current licensing year (2008-09), under SIL category, has been excluded. Then, it has
also been provided, that all eligible units as above, should have indigenous sales turn over of
marble slabs/tiles of Rs.1.00 crore and above in each of three financial years 2004-05, 2005-
06, 2007-08 (2006-07). According to the petitioner, exclusion of those units, who have been
granted licence under SIL, or who are eligible to avail licence in the current licensing year
under SIL, is highly arbitrary and contrary to Foreign Trade Policy, unjust and unwarranted,
particularly in wake of the fact, that in the Policy Circular No.13, total entitlement for import
licence is 3000 metric ton marble blocks/slabs for the first gang saw machine, and 1500
metric ton for additional gang saw machine. It is contended, that once the Central
Government decides to permit import of such a huge quantity, based on manufacturing
capacity, exclusion of the units obtaining import licence under SIL, is highly arbitrary and
illegal. It is also contended, that the Government could and should have provided an option,
to be exercised by an individual entrepreneur, either to apply and avail licence under
Annexure-3, or Annexure-4. It is next contended, that Annexure-4 has been issued to give
benefit to the particular sect of entrepreneurs, excluding the existing licence holders, under
SIL category.
Reply has been filed on behalf of the respondents, contending inter alia, that
Annexure-4 was issued, especially to redress the grievance of the entrepreneurs, who were
not given the import licence under SIL Scheme, and the petitioner, who was, and is enjoying
the benefits under SIL Scheme, cannot question, when the benefit is extended to those
entrepreneurs, who were not enjoying the benefit under the SIL Scheme. It is also contended,
that by Annexure-4, Government has broad based licensing, by including units, which were
earlier not covered under the SIL Category. The policy has been devised in consultation with
the various State Governments, and the representatives of the industries. It is contended, that
if the option suggested by the petitioner is provided, very purpose of broad basing the eligible
entities would be defeated. It is also contended that on the same consideration, 100% EOU
units, and units in SEZ, have been excluded. It is denied that there is vast difference between
the maximum quantity of import, given under the import licence to the petitioner, and the
quantity to which the entrepreneur may be entitled, under Annexure-4, rather the quantity
3000 metric ton is upper most ceiling, which can be allowed to importers. Thus, the
apprehension of the petitioner is unfounded.
Rejoinder has been filed by the petitioner, reiterating the averments of the writ
petition. However, additional pleadings taken therein are, that the eligibility criteria of quota,
to which each unit is entitled, are different under Annexures-3 and 4, inasmuch as under
Annexure-3, the unit is entitled on the basis of eligible turnover of the previous year, whereas
under Annexure-4, entitlement is according to the turnover and number of gang saw
machines, installed in the unit before 2001.
During the pendency of this petition, certain applications have been filed by
individual entrepreneurs, who are covered by Annexure-4, and accordingly, applied for grant
of licence under Annexure-4, so also by some of the persons, who have been granted some
licences, seeking their impleadment as party respondent of the writ petition. Replies to those
applications have been filed, and before proceeding with the arguments on the main writ
petition, we have heard learned counsel for the applicants, and in view of the averments
contained at page 50 of the paper book, being internal page 5 of the rejoinder, the
applications are allowed, and all the applicants are impleaded as party respondents.
Thus, it cannot be said, that the policy, being Annexure-4, is either arbitrary or irrational. May
be, that in given individual case, for the individual entrepreneur, at a given point of time, and
for given reason also, Annexure-4 may appear to be more beneficial than Annexure-3, but
then, for deciding the validity of Annexure-4, that alone cannot be considered. We have to
consider the two policies Annexure-3 and Annexure-4 on their own, and consider the various
aspects thereof, as considered above. However with a view to satisfy our ultimate judicial
conscience, we asked the rough figures, from the respondents about the number of persons
having licenses, or having applied under the two policy circulars, and we have been
informed, that the number of persons enjoying licence under SIL, is around or less than 30,
while the persons applying for, or having granted licenses under Annexure-4 far exceed 100.
It would suffice to observe, that the ultimate upper limit of import under Annexure-3, as well
as Annexure-4, is 1.40 lacks metric ton. It is simply required to be comprehended, that on the
one hand, as per Annexure-3, the total quantity 1.40 lacks metric ton is available for obtaining
import licence, to the persons numbering around 30, on the other hand, same quantity of
goods is available for obtaining import licence to persons, under Annexure-4, far outnumber
100. This, by itself, is enough to dispel all contentions, regarding arbitrariness, irrationality of
Annexure-4.
The writ petition thus lacks merit, and is, therefore, dismissed summarily.
/m.asif/