2020 (4) TMI 669 - SC - Central Excise

Retrospective clarificatory notifications valid; amendments limit refunds to duty on value addition, not barred by promissory estoppel

SC allowed the appeal, holding the subsequent notifications/policies were clarificatory and validly applied retrospectively. The Court found no taking ... Scheme for revival of economy in Kutch District - Withdrawal of the benefit/incentive scheme to the original writ petitioners - Retrospective vs. Retroactive application of the notification - Doctrine of Promissory Estoppel - Interpretation of Fiscal statutes - effect of subsequent N/N. 16/2008 dated 27.03.2008 - It was the case of the original writ petitioners that the subsequent notification No. 16/2008-CE changed the entire basis of the incentive exemption and had the effect of substantially reducing their entitlement of refund. It was also the case on behalf of the original writ petitioners that as a result of the said amendment which resulted in their entitlement for refund being reduced from nearly 100% of the duty paid to only 34% of such duty amount. According to the original writ petitioners, since the promised incentive was curtailed midway before the expiry of the five years period, the subsequent notification was in breach of the principle of promissory estoppel. HELD THAT:- Once it is held that the subsequent notifications/industrial policies impugned before the respective High Court are clarificatory in nature and it does not take away any vested rights conferred under the earlier notifications/industrial policies. In the case of Kasinka Trading [1994 (10) TMI 64 - SUPREME COURT], this Court has specifically and clearly held that the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the objective to be achieved and the public good at large. It has been held that while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must forever be present to the mind of the court, while considering the applicability of the doctrine. It is further held that the doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation. It is further held that an exemption notification does not make items which are subject to levy of customs duty etc. as items not leviable to such duty. It only suspends the levy and collection of customs duty, etc., wholly or partially and subject to such conditions as may be laid down in the notification by the Government in “public interest”. Such an exemption by its very nature is susceptible of being revoked or modified or subjected to other conditions. The supersession or revocation of an exemption notification in the “public interest” is an exercise of the statutory power of the State under the law itself - It has been held that where the Government acts in “public interest” and neither any fraud or lack of bonafides is alleged, much less established, it would not be appropriate for the court to interfere with the same. In the case of Shrijee Sales Corporation [1996 (12) TMI 61 - SUPREME COURT], it is observed and held that the principle of promissory estoppel may be applicable against the Government - But the determination of applicability of promissory estoppel against public authority/Government hinges upon balance of equity or “public interest”. In case there is a supervening public interest, the Government would be allowed to change its stand; it would then be able to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. Once public interest is accepted as the superior equity which can override individual equity, the aforesaid principle should be applicable even in cases where a period has been indicated for operation of the promise. RETROSPECTIVITY/CLARIFICATORY - HELD THAT:- In the case of State Bank of India v. V. Ramakrishnan [2018 (8) TMI 837 - SUPREME COURT], it is observed and held that the presumption against retrospective operation is not applicable to declaratory statutes. For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective - In the case of State of Bihar v. Ramesh Prasad Verma [2017 (1) TMI 1711 - SUPREME COURT], it is observed and held that any legislation or instrument having force of law, if clarificatory, declaratory or explanatory in nature and purport, will have retrospective operation especially in the absence of any indication to the contrary as to retrospectivity either in parent Act or Rules or notifications involved. Interpretation of Fiscal statutes - HELD THAT:- The respective notifications/industrial policies impugned before the High Courts can be said to be clarificatory in nature and it can be defined as an Act to remove doubts. It cannot be said that by the subsequent notifications/industrial policies the benefits which were accrued/granted under the earlier notifications were sought to be taken away. It also cannot be said that by the subsequent notifications/industrial policies, the rights which have been accrued under the earlier notifications had been taken away. The subsequent notifications/industrial policies do not take away any vested right conferred under the earlier notifications/industrial policies. Under the subsequent notifications/industrial policies, the persons who establish the new undertakings shall be continue to get the refund of the excise duty. However, it is clarified by the subsequent notifications that the refund of the excise duty shall be on the actual excise duty paid on actual value addition made by the manufacturers undertaking manufacturing activities. Therefore, it cannot be said that subsequent notifications/industrial policies are hit by the doctrine of promissory estoppel. The respective High Courts have committed grave error in holding that the subsequent notifications/industrial policies impugned before the respective High Courts were hit by the doctrine of promissory estoppel. Thus, once it is held that the subsequent notifications/industrial policies which were impugned before the respective High Courts are clarificatory in nature and are issued in public interest and in the interest of the Revenue and they seek to achieve the original object and purpose of giving incentive/exemption while inviting the persons to make investment on establishing the new undertakings and they do not take away any vested rights conferred under the earlier notifications/industrial policies and therefore cannot be said to be hit by the doctrine of promissory estoppel, the same is to be applied retrospectively and they cannot be said to be irrational and/or arbitrary. The respective High Courts have committed a grave error in quashing and setting aside the subsequent notifications/industrial policies impugned before the respective High Courts on the ground that they are hit by the doctrine of promissory estoppel and that they are retrospective and not retroactive. Appeal allowed. Issues Involved:1. Retrospective vs. Retroactive application of the notification.2. Applicability of the Doctrine of Promissory Estoppel.3. Public Interest and Government Policy Changes.4. Clarificatory Nature of Notifications.5. Misuse of Exemption Schemes.Issue-wise Detailed Analysis:1. Retrospective vs. Retroactive Application of the Notification:The Supreme Court addressed whether the subsequent notification No. 16/2008 was retrospective or retroactive. The Court concluded that the notification was clarificatory and thus could be applied retrospectively. It was held that clarificatory statutes, which aim to remove doubts or explain existing laws, are generally intended to have retrospective effect, as they do not take away any vested rights but merely clarify the existing legal position.2. Applicability of the Doctrine of Promissory Estoppel:The Court examined whether the doctrine of promissory estoppel could prevent the government from modifying the exemption scheme. It was held that the doctrine of promissory estoppel is not absolute and must yield to public interest. The Court stated that if the government can demonstrate that the change in policy was necessary due to overriding public interest, the doctrine of promissory estoppel would not apply. The Court found that the government acted in public interest to prevent misuse of the exemption scheme, which justified the modification of the scheme.3. Public Interest and Government Policy Changes:The Court emphasized that the government has the authority to modify or withdraw exemptions if it is in the public interest. The Court noted that the original exemption scheme was being misused by unscrupulous manufacturers, which necessitated the subsequent notifications to ensure that the exemptions were only available for genuine manufacturing activities. The Court upheld the government's decision to modify the scheme to prevent tax evasion and ensure that the exemptions served their intended purpose.4. Clarificatory Nature of Notifications:The Court held that the subsequent notifications were clarificatory in nature. The notifications aimed to clarify the method of calculating the refund of excise duty to ensure it was based on actual value addition. The Court stated that clarificatory amendments are intended to explain the existing provisions and can be applied retrospectively. The notifications did not take away any vested rights but merely clarified the original intention of the exemption scheme.5. Misuse of Exemption Schemes:The Court acknowledged the government's argument that the exemption scheme was being misused by some manufacturers who were engaging in tax evasion tactics. The Court found that the government's decision to issue subsequent notifications was based on a thorough analysis of the misuse and was aimed at preventing such activities. The Court held that the notifications were issued in the public interest to ensure that the exemptions were only available for genuine manufacturing activities.Conclusion:The Supreme Court allowed the appeals, setting aside the judgments of the High Courts that had quashed the subsequent notifications. The Court held that the subsequent notifications were clarificatory, issued in public interest, and did not violate the doctrine of promissory estoppel. The Court clarified that the notifications could be applied retrospectively and directed that pending refund applications be decided as per the subsequent notifications. The Court also stated that the judgment would not affect the refunds already granted prior to the subsequent notifications.