A. K. DUTTA, J. ( 1 ) THESE two writ petitions under Article 226 of the Constitution of India, being CO. Nos. 1761 (W) and 1762 (W) of 1996, involving common questions of facts and law and raising common issues, heard together on a number of days, are taken up together for disposal by this common Judgment and Order. ( 2 ) SRI Suresh Kumar Balani (hereinafter referred to as Balani) is the Petitioner in C. O. No. 1761 (W) of 1996, Sri Champa Lal Purohit (hereinafter referred to as Purohit) is the petitioner in C. O. No. 1762 (W) of 1996. They both have prayed the court for "a writ of and/or order and/or direction in the nature of Mandamus commanding the respondents to forthwith issue the required TRA in favour of your petitioner against the said Import Licence dated 5. 1. 95 bearing No. P/k/2282485/c/xx/02/35/94 so as to cover all imports at the Port of Madras and to act according to law", along with the other reliefs prayed for therein, for the reasons stated and on the grounds made out in their respective writ petitions. ( 3 ) THE facts and circumstances giving rise to the instant two writ petitions (hereinafter referred to as petitions) may shortly be set out as follows: a quantity based duty free advance import licence dated 5th January, 1995 was issued to Tejas Exports (hereinafter referred to as Tejas), being the proforma respondents in the two petitions. The said licence was made transferable by the Licensing Authority on 15th March, 1995 by making an endorsement to that effect on the body thereof. Purohit had purchased the said licence from the Tejas on 24th March, 1995 after the same was made transferable. Purohit had thereafter imported a consignment of Polyester fabrics at Madras. But since the Port of Registration was recorded on the licence to be "calcutta", Purohit had applied before the Customs Athorities at Calcutta for issuance of Telegraphic release advice (hereinafter shortened into T. R. A.), which was issued on 15th December, 1995. The said imported goods were thereafter cleared by the Customs Authorities at Madras. Balani had purchased a part of the aforesaid licence dated 5th January 1995 from Purohit on 9th January, 1996 for a quantity of 67000 square metres of Polyester fabrics. The said imported goods were thereafter cleared by the Customs Authorities at Madras. Balani had purchased a part of the aforesaid licence dated 5th January 1995 from Purohit on 9th January, 1996 for a quantity of 67000 square metres of Polyester fabrics. Both Purohit and Balani had thereafter imported further consignments of Polyester fabrics at the Port of Madras, as detailed in their respective petitions. Since the said imports were made at the Port of Madras, both the Petitioners had approached and applied to the Customs Authorities at Calcutta for issue of T. R. A. S to cover the said imports. The original licence was also produced before the Customs Authorities at Calcutta, who had debited the same with the value of the subject imports made by the two petitioners. Even so. T. R. A. S had not been issued by the Customs Authorities, who had informed Purohit that they had some doubt about the signatory of the transfer letter issued by the Tejas, He (Purohit) had thereupon informed the Customs Authorities by a letter dated 19th January, 1996 that the genuineness of the signature of the Partner of the Tejas, who had singed the relevant transfer letter, had been verified by their bankers: and there could, therefore, be no scope for doubt In respect thereof. Purohit had also enclosed with the said letter another letter from the Tejas reconfirming that the sold licence was genuinely transferred in his (former's) favour, and that the signatory of the transfer letter was duly authorised for the said purpose. But even thereafter, the Customs Authorities at Calcutta did not issue the T. R. A. s sought for, as a result of which the imported goods were suffering huge demurrage at the Port of Madras. Hence the instant two writ petitions by the Petitioners herein. ( 4 ) PURSUANT to the directions contained in the Court's earlier order dated 7th February, 1996, the respondent No. 2, had issued show cause notice in the matter dated 19th February, 1996 alleging therein that there had been a change in the Constitution of the Tejas with effect from 18th June, 1994, which was not intimated to the Licensing Authority. The petitioners, had, therefore, ceased to he eligible for the facility of export, import, transferability, T. R. A. etc, under the said Licence for noncompliance with paragraphs 12 and 232 of the Hand Book of Procedures. The petitioners, had, therefore, ceased to he eligible for the facility of export, import, transferability, T. R. A. etc, under the said Licence for noncompliance with paragraphs 12 and 232 of the Hand Book of Procedures. 1992-1997 (hereinafter referred to as Hand Book ). ( 5 ) PUROHIT was required to show cause as to why the goods already cleared by him should not be confiscated under the relevant provisions of the Customs Act, 1962 (hereinafter referred to as the said act) and why customs duties should be demanded on the said goods and penal action should not be initiated against him. Both the Petitioners had been asked to show cause as to why the facility of T. R. A. or even direct import under the aforesaid relevant licence should not be denied and refused to them. ( 6 ) IN the aforesaid facts and circumstances, the T. R. A. s, applied for by them, not having been issued by the Customs Authorities as yet, the imported goods in question are still lying uncleared in the customs bonded warehouse at Madras. ( 7 ) THE contending respondents contend that the Licence in question dated 5th January. 1995 was issued to M/s. Tejas Exports, 401-402, Swaika Centre, Pollock Street, Calcutta, as a proprietorship Concern on the application of one Amit Agarwal as the sole proprietor thereof. The said licence is stated to have been transferred to Purohit by Tejas as a partnership firm, the transfer document having been signed by one Dudh Nath Singh as a partner thereof. On enquiry by the Customs Authority, It transpired that the said Sri Amit Agarwal had formed a partnership firm in June, 1994 under the name and style Tejas Exports, along with two new persons, namely, N. S. Parikh and Dudh Nath Singh, as partners thereof. Further enquires with the Director of Foreign Trade reveal that the change of the Tejas from Sole Proprietorship to partnership had not been recorded with the said Authorities; nor, has the relevant Licence been endorsed in favour of the partnership. And, in view of paragraphs 12 and 232 of the Hand Book the Said Licence granted to the proprietorship firm of Tejas on the application of Sri Amit Agarwal as the Sole proprietor thereof could not be transferred by the said Sri Dudh Nath Singh as a Partner of the Partnership Firm. And, in view of paragraphs 12 and 232 of the Hand Book the Said Licence granted to the proprietorship firm of Tejas on the application of Sri Amit Agarwal as the Sole proprietor thereof could not be transferred by the said Sri Dudh Nath Singh as a Partner of the Partnership Firm. And, non-compliance with the provisions of paragraph 232 of the Hand Book would prevent any dealing with the Licence in question by the original licencee. The imports in question could not be valid importation as such. ( 8 ) IN the facts, circumstances and nature of the two matters the only question emerging for consideration is whether: in view of the alleged change in Constitution of the Tejas on 18th June, 1996, the petitioner's rights and entitlements under the aforesaid import Licence dated 5th January, 1995, which was purchased by them after it was made transferable by the Licencing Authority concerned on 15th March, 1995, could be nullified for alleged non-compliance with the requirements of paragraphs 12 and 232 of the Hand Book. ( 9 ) IN order to appreciate the respective contentions of the contending parties, paragraphs 12 and 232 of the Hand Book are required to be looked into and examined. Paragraph 12 reads as follows"12-WHENEVER there is a change in the name, address or Constitution of the holder of an IEC number, such change shall be intimated within 30 days to the regional licensing authority concerned which granted the IEC number. Paragraph 12 reads as follows"12-WHENEVER there is a change in the name, address or Constitution of the holder of an IEC number, such change shall be intimated within 30 days to the regional licensing authority concerned which granted the IEC number. "paragraph 232 of the hand book reads as follows :"232-IF there is any change in the name, Constitution or ownership of a licencee or an actual user eligible for import without licence with actual user condition or a recognised Export House/trading House/star Trading House/superstar Trading House, the concerned Licensee or actual user or the holder of the recognition certificate, as the case may be, shall cease to be eligible for any facility to import or export or other facility permitted against the said licence or under the policy and this section after expiry of 60 days from the date of such change in his name, Constitution or ownership unless in the meantime (a)the licensee or the holder of recognition certificate has got the consequential changes effected in the licence or the recognition certificate, as the case may be, by the concerned licensing authority, and (b)the actual user has got the consequential changes effected from the concerned authority in the Industrial Licence issued by the Secretariat for industrial approvals (Ministry of Industry) or certificate of registration as an actual user issued by the Director of Industries of the State Governments or has received and acknowledgement for filing of a memorandum with the Secretarial for industrial approvals. " ( 10 ) KEEPING in view the requirements of the aforesaid two paragraphs of the Hand Book, let me now proceed to consider the merits of the respective contentions of the contending parties in the background of the following undisputed facts, as appearing from the materials on record : (i)the licence dated 5. 1. 1995 was issued by the Licensing Authority in favour of Tejas, (ii)tejas exported 61270 pieces of blousons made of polyester fabric, lining and thread valued at Rs. 2,18,73,918/-, and the entire export obligation cost upon Tejas was thus duly and fully discharged by it, (iii) in view of discharge of export obligation in full, the licensing authority had waived the condition of executing bond/legal undertaking, (iv)after fully discharging the export obligation, Tejas had applied for transferability of the said Licence and the Licensing Authority had made the said Licence transferable on 15. 3. 3. 95 in accordance with law, (v)the Petitioners purchased the said Licence after it was made transferable by the Licensing Authority by making a specific endorsement to this effect on the body thereof, (vi)the said Licence is a quantity based Advance Licence issued under the Duty Exemption Scheme, and the goods imported thereunder are fully exempt from all customs duties under Notification No. 204/ 92-CUS, and; (vii)the goods imported by the petitioners which are lying uncleared at Madras Port are duly covered by the said licence. ( 11 ) THERE is also no dispute about genuineness of the licence or about genuineness of the endorsement as regards its transferability by the Licensing Authority. There is neither any dispute that the said licence or the endorsement as regards transferability made by the Licensing Authority on the body thereof still hold good, and the same have not as yet been cancelled by the Licensing Authority. ( 12 ) THE two petitioners herein contend that there is no allegation whatsoever against them in the relevant show cause notice. They had, undeniably, purchased the relevant Licence after it was made transferable by the concerned Licensing Authority after the export obligation had been discharged in full and after the other required conditions had been fulfilled, as a result of which the relevant Licence had become a freely marketable commodity. There has been no change in the name, address or Constitution of any of the petitioners, and both of them are holders of I. E. C. numbers. It is thus contended that in such circumstances paragraph 12 of the Hand Book could have no application against them. There is nothing in paragraph 12 to indicate that action could be taken against them (petitioners) in view of the alleged change in the Constitution of Tejas. ( 13 ) AS regards paragraph 232 of the Hand Book, it had been submitted on behalf of the petitioners that the same contemplates a situation where there is any change in the name, Constitution or ownership of a licencee, and it requires the licensee to get the consequential changes effected in the licence by the Licensing Authority before expiry of 60 days from the date of such change. It further provides that if such consequential changes are not effected in the licence, the licensee shall cease to be eligible for any facility to import or export or other facility premitted against the licence or under the policy or under the Hand Book after expiry of 60 days from the date of such change. On its own specific terms, paragraph 232, therefore, comes into play only if there is a change in the name, address or constitution of the licensee after the licence has been issued, and it requires the licensee to get the consequential changes effected in the licence within a period of 60 days. The said paragraph 232, ex-facie, imposes the conditions to be complied with by the original licensee in the event of change in its constitution after issuance of the licence. The said paragraph 232 imposes no condition or restriction and has got no application whatsoever to the transferee's of the licence. The transferee's might not be aware about the changes in the Constitution of the original licensee or about the intimations sent by the original licensee to the licensing authority; nor, could they (former) have any control over any such thing. That is why, it was submitted, paragraph 232 is limited in its application only to the licensee. In the instant case there has been no change in the Constitution of the licensee, the Tejas, after issuance of the Import Licence. ( 14 ) AS submitted, that there has been no change in the name, Constitution or ownership of any of the petitioners. The change in Constitution of the Tejas took place on 18th June, 1994, long before the issuance of the import licence in question dated 5th January, 1995. Paragraph 232 of the Hand Book could not come into play, in such circumstances. The said paragraph does not lay down that the licence shall become invalid for non-compliance therewith, as sought to be e 15 of the Letters Patent is maintainable only against the judgment its if, and not the order that may be required to be drawn up in terms of rules 1 and 2 (supra) and thus is such Hand Book, in the manner suggested by the respondents, would thus amount to importing something therein which is not there. ( 15 ) THE petitioners are stated to be bona-fide buyers of the Licence in question for value. ( 15 ) THE petitioners are stated to be bona-fide buyers of the Licence in question for value. They had purchased the same after it was specifically made transferable by the Licensing Authority concerned. It had thus been urged that their (petitioners') rights under the said licence could not be nullified due to any default on the part of Tejas in intimating about change in its Constitution to the Licensing Authority concerned. More so, since the said change had taken place before the issuance of the licence in question to the Tejas. Even if there was any misrepresentation by the Tejas while filling their application for issuance of the said licence, the same could not invalidate the licence or make it non-est, nor, can it have any bearing on the validity and legality of the imports made by the petitioners under the said licence. The learned Advocate for the petitioners had also referred to the following observations of the Supreme Court in East India Commercial Company Limited v. Collector of Customs, 1983 (13) ELT 1342 which seem worth bearing in mind in this context : "nor is there any legal basis for the contention that licence obtained by misrepresentation makes the licence non est, with the result that the goods should be deemed to have imported without licence in contravention of the order issued under section 3 of the Act so as to bring the case within clause (8) of section 167 of the Sea Customs Act. Assuming that the principles of law of contract apply to the issue of a licence under the Act, a licence obtained by fraud is only voidable : it is good till avoided in the manner prescribed by law. This order, therefore, authorised the Government of India or the Chief Controller of Imports to cancel such licences and make them effective. The specified authority has not cancelled the licence issued in this case on the ground that the condition has been infringed, we need not consider the question whether the Chief Controller of Imports or the Government of India, as the case may be, can cancel a licence after the term of the licence has expired, for no such cancellation has been made in this case. In the circumstances, we must hold that when the goods were imported, they were imported under a valid licence and therefore it is not possible to say that the goods imported were those prohibited or restricted by or under Ch. IV of the Act within the meaning of clause (8) of section 167 of the sea Customs Act. " ( 16 ) THE Supreme Court in Union of India v Sampat Raj Dugar v Union of India 1992, (58) ELT 163 had also considered the question where the original licensee had obtained a licence by mis-representation where after the goods were imported, the licence was also cancelled by the licensing authority. The customs authorities took the view that since the licence under which the goods were imported had been cancelled by the licensing authority, it would mean that there was no valid import licence for the clearance of the goods. The learned single Judge of the Hon'ble Bombay High Court had allowed the writ petition on the ground that on the date the goods were imported these were covered by a valid import licence: and that due to subsequent cancellation of the licence the goods could not be confiscated by the Customs Authorities. The letters patent appeal preferred by the collector of customs and the Union of India was dismissed by a Division Bench affirming the decision of the learned single Judge. It was contended on behalf of the Customs Authorities before the Supreme Court that once the import licence was cancelled, the goods cannot be allowed to be cleared by anyone under such licence; and that for the acts and defaults of the licensee, the goods themselves were liable to confiscation. The Supreme Court had, however, rejected the said contention of the Customs Authorities by following the aforesaid decision in East India Commercial Company Limited (supra), and had further held that since on the date of import the goods were covered by a valid import licence the subsequent cancellation of the licence was of no relevance. Nor, does it retrospectively render the imports illegal. ( 17 ) IT had been submitted on behalf of the petitioners that the alleged irregularity on the part of Tejas was only with regard to non-intimation of the change in its Constitution to the Licensing Authority. Nor, does it retrospectively render the imports illegal. ( 17 ) IT had been submitted on behalf of the petitioners that the alleged irregularity on the part of Tejas was only with regard to non-intimation of the change in its Constitution to the Licensing Authority. The person who was earlier a proprietor of the Tejas and who had made the application for licence was, undeniably, one of its partners after the change in its Constitution. At the most, it was merely a mistake in describing the designation. It had been urged that no additional or extra benefit of any nature could have been derived by the Tejas by making any such wrong declaration about its status. There is neither any whisper by the respondents that any additional benefit was derived by the Tejas under the said licence. No motive had either been ascribed by the respondents for the aforesaid change in the Constitution of the Tejas. That apart, the Tejas had, admittedly, discharged its export obligation by exporting goods worth Rs. 2,18,73,918/- only. In respect of the said exports the Tejas was undeniably entitled to get the said advance licence. The said licence was further made transferable only after realisation of the entire export proceeds in terms of the relevant provisions of the Hand Book and the import policy 1992-97. It had further been urged that when the Tejas, as the original licence, had exported goods worth more than Rs. 2. 18 crores and had become eligible to get the said licence and it was made transferable after realisation of full export proceeds, there could be no scope for denying the benefits under the said licence to the petitioners on the ground of some procedural irregularity in the application for the said licence by the Tejas. The Learned Advocate for the petitioner had also referred to the decision of the Supreme Court reported in AIR 1969 Supreme Court 1267 wherein it has been observed as follows : "rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure". A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure". ( 18 ) THE respondents sought to contend that in view of change in the Constitution of Tejas without intimation of the authorities concerned in terms of Paragraph 232 of the Hand Book no one could deal with or transfer the said licence. Non-compliance with paragraph 232 of the Hand Book makes the dealings under the said licence invalid. And, it had been submitted that the licence itself, under the aforesaid circumstances, does neither authorise the original licence, the Tejas, to export or import any goods in terms thereof. It had further been urged that the Tejas could neither deal with the said licence, in the aforesaid circumstances. But, as already indicated above, the Tejas had already, admittedly, discharged its export obligation by exporting goods worth more than Rs. 2. 18 crores only under the licence in question. No case has been made out by the respondents that the said exports by the Tejas in terms of the relevant licence have been rendered invalid. or that the said exports have been sought to be set at naught. If the exports under the said licence have not been rendered invalid, I wonder how the imports thereunder by the Petitioners, in the facts and circumstances indicated above, could be held to be invalid, as sadly sought to be contended by the respondents: would it not be preposterous to hold the licence valid for exports, but invalid for imports? ( 19 ) IN view of the discussion above, it seems to me that there is considerable force in the petitioners contention that paragraphs 12 and 232 of the hand book are not at all applicable in the instant case and there could be no justification for denying benefits under the licence in question to the petitioners. That being so, the impugned show cause notices dated 19th February, 1996 issued to the petitioners clearly appear to be illegal and without jurisdiction, which are liable to be set aside. The writ petitions, should thus succeed; and be accordingly allowed. That being so, the impugned show cause notices dated 19th February, 1996 issued to the petitioners clearly appear to be illegal and without jurisdiction, which are liable to be set aside. The writ petitions, should thus succeed; and be accordingly allowed. The respondents authorities are hereby directed to forthwith issue the required Telegraphic release advice (T. R. A.) in favour of both the petitioners against the relevant import licence dated 5th January, 1995 so as to cover all imports thereunder at the port of Madras for clearance of the same, which are stated to be lying there uncleared. The respondents-authorities are directed to issue T. R. A. to both the writ petitioners in terms of this order at the earliest, to later than 7 days from date. Both the writ petitions be accordingly disposed of without any order as to costs. This Judgment and order govern both the C. O. No. 176 (w) and 1762 (w) of 1996. Interim order passed herein shall, accordingly, merge with this order. Leter: At the time of pronouncement of this Judgment, the learned Advocate for the respondents has sought for stay of operation of the Judgment which be rejected for the reasons already recorded in the body of the Judgment. If any application for urgent xerox certified copy of this by any of the parties, the department shall cause the same to be supplied at the earliest. Petition disposed of of .