This order shall also dispose of two other Writ Petitions Nos. 51.46-78 and 5147/78 which involve the same points.
2. The petitioner was granted Import Licence No. 098754 dated 22 May, 1974, revalidated up to 15th June, 1974, for Rs. 48,980 by respondent No. 3 on payment of licence fee amounting to Rs. 980.
The petitioner applied for its extension up to 31st August, 1974, vide letter dated 1st July, 1974. On 19th July, 1974, the petitioner made another request to respondent No. 3 either to refund the import fee already paid or permit it to present a fresh cash licence against the same fee. The respondent asked the petitioner to submit a refund application form and other documents for the purpose to which the petitioner responded vide Registered Acknowledgment Due letter dated 7th January, 1975. The petitioner's application for refund was, however, rejected by the respondent on 17th February, 1976. An appeal against that order also failed on 29th March, 1977.
3. It is contended by the learned counsel that in view of clause 3 (1) of the Licences and Permits Fees Order, 1957, read with Item 2 of the Schedule the respondent was obliged to refund the fee when the licence granted by him had not been utilised. The relevant provisions read as under :- "3.-(1) Every person in whose favour an import licence, import permit or clearance permit is granted or who applies for opening of a letter of credit for the import of any goods for which a specific import licence, import permit or clearance permit is not required, shall pay fee in accordance with the Schedule to this Order ; Provided---------------------..;- "SCHEDULEnd 2.For imports made against licencesNo fees on the first Rs. 500 or permits over Rs. 500 toand fees @ 1 per cent ad valorem Rs. 1,00,000 on the balance.
3------------------------------------..;-- It is further stated that deletion of clause (6)(c) of the same Order would not make any difference at all.
4. The learned Deputy Attorney-General submitted that .The fee is chargeable not on the utilisation of the licence but only for its issuance. The learned Deputy Attorney-General also relied on Article 3 of the Import Trade Control Order, 1947, and section 3 of the Import Trade Control Act.
5. Clause (3)(11 of the Order referred to above requires of every person, in whose favour an import licence, import permit or clearance permit is issued or who applies for opening of letter of credit for import of any goods requiring no import licence, to pay fee in accordance with the Schedule to the, Order. The Schedule lays down the quantum of fees `for imports made against licences . . . . .' . The two provisions when read together, make it absolutely clear that the fee is payable for imports made and not for an application to open letter of credit or for licences etc. Had it been otherwise the Schedule would have provided for imports to be made' or for imports applied for.'
6. Clause 6 (c) relied upon by the learned Deputy Attorney-General provides as follows :- "6. The licensing authority may, in a case where the licence fee paid by a party has not already been adjusted against some dues payable by the party, allow refund of the whole or part of the fee paid by the party if he is satisfied that-
(a) & (b)---------------------..
(c) the imports authorised by the licence in respect of which the fee was paid did not materialise, or letters of credit could not be opened, for reasons beyond the control of the party."
The above provision allowed the licensing authority to refund whole or part of the fee on being satisfied that the import did not materialise or the letter of credit could not be opened for reasons beyond the control of the party. This power was restricted and could be used in the given limited and specified circumstances. The payability of the fee, as said above, war conditional for imports made.' Clause (6)(c) in the circumstances covered only a limited field and prevented the licensing authority refunding the amount in question when the import was not made, for reasons other than those beyond the control of the applicant. Thus the contents of clause (6)(c) should have either been suitably amended to give a complete power of refund or they should have been deleted so as to enable the licensing authority to act in accordance with the requirements of the Order.
7. I, therefore, agree with the learned counsel for the petitioner that the fee could be charged only if an import had been made against a licence or letter of credit. In case there was no import made for any reason whatever, the authority is obliged to refund the fee. The refusal on the part of respon--dent No. 3, is, therefore, unlawful.
In view of the above the refusal on the part of respondents to refund the fee paid, Is declared to be without lawful authority and of no legal effect. The fee paid by the petitioner shall be refunded in case no import was made against the licence or the letter of credit. There will be., however, no order as to costs.