2017 (3) TMI 781 - HC - Central Excise

Court dismisses appeal regarding NCCD exemption, rejecting promissory estoppel arguments. Appellant can challenge interest and penalty.

Bajaj Auto Ltd. Versus Union of India through Secretary, Ministry of Commerce and Industry, Government of India, New Delhi and others

Bajaj Auto Ltd. Versus Union of India through Secretary, Ministry of Commerce and Industry, Government of India, New Delhi and others - 2017 (352) E.L.T. ... Issues Involved:1. Entitlement to Exemption under Notification No. 50/2003.2. Promissory Estoppel.3. Interpretation of Exemption Notification.4. Applicability of National Calamity Contingent Duty (NCCD).5. Demand for Interest and Penalty.Detailed Analysis:1. Entitlement to Exemption under Notification No. 50/2003:The appellant sought relief declaring entitlement to exemption under Notification No. 50/2003 dated 10th June 2003, which provided 100% excise duty exemption for ten years from the commencement of commercial production. The appellant argued that this exemption should include the National Calamity Contingent Duty (NCCD) and related cesses. However, the court noted that the Notification specifically exempted excise duties under the Central Excise Act, 1944, and two other Acts, but not NCCD, which is levied under the Finance Act, 2001. Thus, the court concluded that the Notification did not extend to NCCD.2. Promissory Estoppel:The appellant contended that the government’s policy, as articulated in the Office Memorandum dated 07.01.2003, promised 100% excise duty exemption, inducing them to invest in the state. They argued that the government should be estopped from retracting this promise. The court examined the doctrine of promissory estoppel, noting that it requires a clear and unequivocal promise and a change of position based on that promise. The court found the appellant’s pleadings inadequate to establish that they altered their position based on a promise that included NCCD exemption. The Notification issued six months after the policy decision did not include NCCD, and the appellant set up the unit four years later, by which time they should have been aware of the Notification’s terms.3. Interpretation of Exemption Notification:The appellant argued for a liberal interpretation of the Notification, claiming it should cover NCCD as a duty of excise. The court referred to established principles that while exemption notifications should be construed strictly, those promoting economic activities should be interpreted liberally. However, the court emphasized that such liberal interpretation should not do violence to the language of the Notification. Given the clear terms of the Notification, which did not include NCCD, the court rejected the appellant’s argument for a broader interpretation.4. Applicability of National Calamity Contingent Duty (NCCD):The appellant argued that NCCD, being treated as a duty of excise under the Finance Act, 2001, should fall within the exemption. The court noted that while NCCD is termed a duty of excise, it is levied under a different statute (Finance Act, 2001) and not under the Central Excise Act, 1944, or the other Acts mentioned in the Notification. The court concluded that the Notification’s specific reference to duties under certain Acts did not include NCCD, thus the exemption did not apply to NCCD.5. Demand for Interest and Penalty:The appellant challenged the demand for interest and the imposition of a 100% penalty. The court noted that while the appellant could contest the quantum of interest and the imposition of penalty in a statutory proceeding, the provisions of the Finance Act, 2001, and the Central Excise Act, 1944, did provide for the imposition of interest and penalties. The court left open the appellant’s right to challenge these aspects before the appropriate authority.Conclusion:The court dismissed the appeal, finding no merit in the appellant’s claims for exemption from NCCD under the Notification, the application of promissory estoppel, or a liberal interpretation of the Notification to include NCCD. The court also allowed the appellant to contest the interest and penalty in a statutory proceeding.