Judgment:
ORDER
1. As both writ petitions are connected, a common judgment is being rendered.
2. The petitioner applied for import licence on 14-2-1981. The Chief Controller of Imports and Exports (second respondent) issued the Advance Licence subject to certain conditions, about which I shall refer a little later, on 22-5-1982. On the strength of the issuance of the advance licence, the petitioner was issued Duty Exemption entitlement Certificate on 22-5-1982. It is thereafter petitioner placed orders with Messrs Mathews (Singapore) Pvt. Ltd., for supply of 26 Metric Tonne of copper wire scrap valued at Rs. 4,73,747. The cargo was loaded from Singapore on 12-8-1982, and the vessel carrying the cargo arrived at Madras Port on 19-8-1982. The consignment was cleared on 19-10-1982. Out of 26 tonnes, 7.980 tonnes were removed from the Port itself and sent to the manufacturers, and the remaining 18.020 tonnes were warehoused with the Central Warehousing Corporation, Tondiarpet. The goods were pledged with the fourth respondent Bank for 80 per cent of their value. On 16-4-1983, petitioner exported 5 Metric Tonnes to Singapore, on 17-4-1983 another 5 Metric Tonnes to Singapore and another 5 Metric Tonnes were kept ready for export. On 22-2-1983, the petitioner was informed by Central Warehousing Corporation, with whom the goods were entrusted for safe custody, that the latter had received a letter from the third respondent not to release the goods. In the meanwhile, it may be stated at once that the petitioner had to comply with the advance incence conditions within six months from 19-10-1982, the date on which the consignment was cleared. This will point out that he shall complete the export commitments on or before 18-4-1983. As the petitioner could not obviously fulfil the export obligations, he applied on 29-3-1983 for extension. It is not in dispute that the petitioner is entitled to apply for extension, so too it is open to the second respondent who is the competent authority in this context to grant or refuse extension. In the instant case, the second respondent granted extension to the petitioner for fulfilling export obligation till 30-10-1983. In the meanwhile, even before the petitioner's application for extension was made and orders passed, the third respondent by his communication dated 26-4-1983, informed the petitioner that the period for export obligation was over, and therefore, directed the petitioner to produce the Export document and D.E.E.C. Book. Besides on 27-5-1983, the third respondent ordered forfeiture of the Bank guarantee and called upon the fourth respondent to remit Rs. 1,11,355. Immediately thereafter, on 28-5-1983, the petitioner apprised the third respondent (who passed the order of forfeiture) about the order of extension till 30-10-1983. It is an anomaly for in spite of it, on 27-6-1983, the third respondent issued a show cause notice for the cancellation of the licence and on 8-7-1983, the third respondent insisted on a revised bank guarantee. It is interesting to note that the second respondent by his letter dated 1-7-1983, informed the petitioner that the petitioner is at liberty to clear the entire quantity from the Customs bonded warehouse under the D.E.E.C. duty free and manufacture the products and export the same by the said date. The petitioner, in turn by his letter dated 11-7-1983, apprised the third respondent of the same and on 1-8-1983, he wrote to the Central Warehousing Corporation about the clearance permitted by the second respondent. Again on 6-8-1983, the third respondent persisted in giving specific direction to the Central Warehousing Corporation not to release the goods to the petitioner. It is in the above background, the petitioner has come forward with Writ Petition Nos. 8402 of 1983 for the issue of a writ of Mandamus to forbear the third respondent from interfering with the rights of the petitioner under licence No. P/K/0354893, dated 22-8-1982, till the date of fulfilment of export obligations, namely, 30-10-1983, or issue a writ direction or order in the nature of a writ of Mandamus as this court may deem fit and proper. In the other Writ Petition No. 6569 of 1984, the petitioner seeks to issue to writ of certiorari or other writ, direction or order in the nature of certiorari, calling for the records on the file of the third respondent herein No. 18(524)82-83/ECA/MAD, dated 21-5-1984, I find the third respondent in Writ Petition No. 6569 of 1984, directed the Chief Manager, Hindustan Commercial Bank Ltd, having a lien over the goods with the Central Warehousing Corporation, Tondiarpet, to get the materials of 17 Metric Tonnes imported copper scrap released from the said warehouse after paying the warehousing and other incidental charges as on date and to sell the same to the four firms mentioned in the order.
3. It is needless to state that if Writ Petition 8402 of 1983 is accepted, the other Writ Petition No. 6569 of 1984 will stand automatically allowed. For the disposal of these two writ petitions, it is enough to examine the two circumstances relied on by the respondents for negativing the petitioner's entitlement under the advance licence Indeed these are the two grounds referred to in the impugned order dated 21-6-1984, which is sought to be quashed in Writ Petition 6569 of 1984. One is that the petitioner has failed to execute a fresh Bank guarantee equivalent to 100% of the Customs duty on the items imported as directed in the third respondent's office letter No. 18(524)82-83/ECA/MAD. The second is that from the enquiries made, it has come to the notice of the respondents that the foreign buyer Messrs R. R. Trading Co. [the correct name being R and R Trading Co.], Singapore, is not in existence. The enquiries said to have been made by the respondents is what was furnished in the letter dated 15-4-1983 bearing reference No. SIN/COM/944/8/82, issued by the High Commissioner of India at Singapore. It is therefore necessary to extract the relevant portion -
'We wrote to M/s. R and R Trading Co., enclosing our standard questionnaire, but no reply has been received from them inspite of our reminder. M/s. R and R Trading Co., is not listed in the Current Telephone Book and the Telecommunication authority of Singapore, whom we contacted, confirmed that there is no listing under this name.
Every business in Singapore must be registered with the Registry of Business or Registry of Companies, we checked with the Registry of Business, Singapore, and found that this firm has not been registered there too'.
What is found in that letter is that no reply was received from M/s. R and R Trading Co., that it is not listed in the Current Telephone book and Telecommunication authority of Singapore, and that though every business in Singapore must be registered with the Registry of Business or Registry of Companies, the said firm has not been registered. In view of the above, it was concluded by the respondents that R and R Trading Co., is not in existence in Singapore. In my view, the above circumstance quoted in the letter issued by the High Commissioner of India in Singapore, will not necessarily lead to an inference that the said company is not in existence. Indeed, there is no such conclusion in the said letter. The only inference that is legitimately possible is that the company is not registered, nor it has any telephone or telecommunication reference. It cannot be ruled out that a Company can exist without registration and without telephone number. Besides, the typed set furnished by the petitioner reveals that there are several letters addressed by R and R Trading Co., to the petitioner. In the above circumstances, the respondents are not well founded in their conclusion that the said R and R Trading Co., is not in existence in Singapore.
4. The other circumstances relied on by the respondents is the petitioner failed to execute a Bank guarantee for 100% of the Customs duties on the items imported. It is relevant to refer to the conditions attached to the advance licence Condition No. 3 stipulates to ensure fulfilment of the export obligation prior to clear of the first consignment of imported goods, the advance licence holder, M/s. Mars Exports, Madras, will jointly with the supporting manufacturer Messrs Phoschem, Pallavaram, Madras, execute a bond/bank guarantee in the prescribed form for an amount equivalent to 25% of the CIF value of the advance licence or the amount of the Customs duties leviable whichever is higher with the bond section of office of the Joint Chief Controller of Imports and Exports, Madras 1. As a matter of fact, Mr Shanmugham, learned counsel for the respondents strongly relied on this particular clause to support the stand taken by the respondents when the respondents insisted that before any clearance of imported goods had been made by the petitioner, it shall execute a bond for 100% of the Customs duties. For two reasons, I am unable to accept the above contention of the respondents. In the first place, it is seen from the Customs Tariff of India for the year 1982-83 the Customs duty is 88%. This information I could gather from 1982-83 Customs Tariff of India (6th Edition) by R. K. Jain at page 396. Secondly, in his letter dated 8-7-1983, the Joint Chief Controller of Imports and Exports, had written to the petitioner as follows :-
'With reference to your letter dated 8-6-1983, you are requested to arrange for the execution of a revised bond to cover 100% of the Customs duty leviable immediately as the period of ten days is already over.'
The fact that a revised bond is insisted upon will indisputably establish that there was already a bond executed by the petitioner. As a matter of fact, that petitioner did execute a bond for 25% of the Customs duty on 5-10-1982. The fact that the respondents accepted the bond for 25% on 5-10-1982 will also indicate that the petitioner is not bound to execute a bond for 100% of the Customs duty. In other words, the respondents are not entitled to call upon the petitioner to execute a bond for 100% of the Customs duty. Thus, the two circumstances relied on by the respondents to refuse the petitioner to enjoy the benefit under the Advance licence scheme are wholly untenable. One other argument advanced by Mr. R. Shanmugham is that when the show cause notice was issued to the petitioner, there was no reply and therefore there is no impropriety in the respondents passing the impugned order. In my view, such a conduct on the part of the petitioner will in no way disentitle it from challenging the validity of the impugned order. As a matter of fact, I did not award costs because the petition did not reply to the show cause notice and did not participate in the enquiry held by the respondents.
5. The result is that the impugned order dated 21-6-1984 passed by the Joint Chief Controller of Imports and Exports in reference No. 18(524)82-83/ECA/MAD, deserves to be dismissed and is accordingly quashed. Consequently, both the writ petitions are allowed as prayed for. No order as to costs.