2016 (1) TMI 1210 - HC - Central Excise

Court upholds petitioners' entitlement to North-Eastern Industrial Policy benefits; 2007 notification invalidated.

Dharampal Premchand Ltd. Versus Union of India

The court ruled in favor of the petitioners, holding that they were entitled to the benefits under the North-Eastern Industrial Policy (NEIP), 1997, and ... Validity of N/N. 11/2007-C.E., dated 1-3-2007 - restoration of N/N. 8/2004-C.E., dated 21-1-2004 - appellant engaged in manufacture of jarda scented tobacco falling under Tariff Item No. 2403.99.30 or 2403.99.10 of the First Schedule to the Central Excise Tariff Act, 1985 - the petitioner No. 1 commenced the commercial production on 8-8-2000 and the petitioner No. 2 commenced the commercial production on 24-12-1997 and as such, in terms of the N/N. 69/2003-C.E., dated 25-8-2003 read with Notification Nos. 32/99-C.E. and 33/99-C.E., dated 8-7-1999 - whether the petitioners are entitled to have the benefits irrespective of the lapse in issuing the notification in terms of the NEIP, 1997? Whether the impugned notification dated 1-3-2007, Annexure-L to the writ petition is hit by promissory estoppel by restraining premature withdrawal of the benefits? - Held that: - The promissory estoppel basically prevents a party to a contract from acting in a certain way because it was promised not to act in that way and the other party to the contract relied on that promise and acted upon it. The licence is fundamentally, when is accepted, a contract though its execution might flow from any statutory power. The doctrine therefore applies even to the licence agreement. In view of the saving clause as engrafted in NEIIPP, 2007, as the petitioners’ units have commenced commercial production on or before 31-12-2007 will continue to get benefits/incentives under NEIP, 1997 in terms of the N/N. 8/2004-C.E., dated 21-1-2004 subject to the notification dated 25-4-2007. For deposit, the petitioner would get relaxation for purpose of counting limitation in terms of N/N. 28/2004-C.E., dated 9-1-2004. The limitation would start from this day for compliance of the modality as laid down in the N/N. 8/2004-C.E., dated 21-1-2004 and 28/2004-C.E., dated 9-7-2004. This court, however, has not made any observation consciously as to the petitioners’ entitlement under the scheme. The competent authority would decide the same. Whether the N/N. 69/2003-C.E., dated 25-8-2003, Annexure-H to the writ petition has been completely eclipsed by the N/N. 8/2004-C.E., dated 21-1-2004, Annexure-I to the writ petition? - Held that: - no relief in terms of the said notification dated 25-8-2003 can be granted to the petitioner. On a comparative study of those notifications, this court finds that the notification dated 25-8-2003 has for all purposes merged with the notification dated 21-1-2004. The fundamental provisions made in the notification dated 25-8-2003 have not been debased by the notification dated 21-1-2004. The notification dated 21-1-2004 has expanded the benefit further but with certain restrictive conditions. The petitioners have not challenged the said notification dated 21-1-2004. As corollary thereof, this court is of the view that there had been no eclipse - the petitioner would continue to get the benefit in terms of the promise re-extended by Para 2 of the Office Memorandum dated 1-4-2007 Annexure-K to the writ petition for the remaining period in terms of NEIP, 1997. Whether there is any misuse of process or public interest element justifying the withdrawal of benefits as granted by the NEIP, 1997 by virtue of the notification dated 1-3-2007, Annexure-L to the writ petition? - Held that: - As this has been held that the respondents have failed to show that the petitioner has misused the incentives or taken undue advantage, the said notification dated 1-3-2007 is hit by the promissory estoppel. In this regard it would be apposite to say that the dispute as to whether the petitioner would be entitled to get duty exemption on certification of investment in the social sector in terms of the notifications dated 21-1-2004 and 9-7-2004 is to be verified by the Investment Appraisal Committee (IAC) and on their certification only the exemption can be availed. Hence, absence of “proper investment” as alleged, cannot be termed as misuse or undue advantage - The cumulative effect is that the notification dated 1-3-2007, Annexure-L to the writ petition, cannot be sustained and accordingly the same is set aside. Petition allowed - decided in favor of petitioner. Issues Involved:1. Challenge to Notification No. 11/2007-C.E., dated 1-3-2007.2. Applicability of the North-Eastern Industrial Policy (NEIP), 1997.3. Withdrawal of benefits under earlier notifications.4. Principle of promissory estoppel.5. Public interest and misuse of benefits.Issue-Wise Analysis:1. Challenge to Notification No. 11/2007-C.E., dated 1-3-2007:The petitioners challenged the Notification No. 11/2007-C.E., dated 1-3-2007, which abrogated benefits under Notification Nos. 32/1999-C.E. and 33/1999-C.E., dated 8-7-1999. They argued that they had made significant investments based on the incentives provided by the Union of India's industrial policy. The policy aimed to stimulate industrial development in the North-Eastern Region by offering tax and excise exemptions for ten years.2. Applicability of the North-Eastern Industrial Policy (NEIP), 1997:The NEIP, 1997, declared fiscal incentives for new industrial units and their substantial expansion, converting growth centers into total tax-free zones for ten years. This included exemptions from income tax and excise duty. The NEIP was supported by various notifications, including the crucial Notification Nos. 32/1999-C.E. and 33/1999-C.E., dated 8-7-1999, which provided specific exemptions.3. Withdrawal of Benefits Under Earlier Notifications:The benefits under Notification Nos. 32/1999-C.E. and 33/1999-C.E. were amended multiple times. Initially, the exemptions were withdrawn for goods under Chapter 24 and Heading No. 21.06. However, subsequent amendments, including Notification No. 1/2000-C.E., dated 17-1-2000, and Notification No. 1/2001-C.E., dated 22-1-2001, restored some benefits. The Notification No. 6/2001-C.E., dated 1-3-2001, further amended these exemptions, and Section 154 of the Finance Act, 2003, retrospectively effaced the benefits from 8-7-1999.4. Principle of Promissory Estoppel:The petitioners argued that the premature withdrawal of benefits violated the principle of promissory estoppel. They had altered their position based on the clear and unequivocal promise of tax and excise exemptions. The court examined various precedents, including Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh, which established that the government could not renege on a promise if the promisee had acted upon it to their detriment unless overriding public interest justified such withdrawal.5. Public Interest and Misuse of Benefits:The respondents contended that the withdrawal was necessary due to misuse and in the public interest. They cited the mushroom growth of tobacco-related industries and heavy refunds as reasons. However, the court found no substantial evidence of misuse or undue advantage. The notification dated 25-4-2007, which excluded certain goods from exemptions due to health hazards, was considered valid. Yet, the court held that the notification dated 1-3-2007 lacked a clear public interest justification and was thus hit by promissory estoppel.Conclusion:The court concluded that the petitioners were entitled to the benefits under the NEIP, 1997, and subsequent notifications until the promised period expired. The notification dated 1-3-2007 was set aside for lacking a valid public interest justification, and the benefits were to continue as per the original promise, subject to compliance with the conditions laid down in the relevant notifications.