TaxTMI 
TaxTMI 
2011 (7) TMI 979
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....se 1. 007932/26-3-98 Rs. 502000 IGI Airport New Delhi. 2. 009692/15-4-98 Rs. 501585.00 -do- 3. 009693/15-4-98 Rs. 501585.00 -do- 4. 009696/15-4-98 Rs. 501585.00 -do- 5. 009694/15-4-98 Rs. 501585.00 -do- 6. 009691/15-4-98 Rs. 501585.00 -do- 7. 009695/15-4-98 Rs. 501585.00 -do- 8. 011058/28-4-98 Rs. 499578.66 -do- 9. 011059/28-4-98 Rs. 499578.66 -do- 10. 001060/24-4-98 Rs. 485534.28 -do- 11. 012218/12-5-98 Rs. 499346.10 -do- 12. 012217/12-5-98 Rs. 498337.32 -do- 13. 012453/14-5-98 Rs. 499346.10 -do- 14. 012734/17-5-98 Rs. 499346.10 -do- 15. 012985/20-5-98 Rs. 499346.10 -do- 16. 013189/22-5-98 Rs. 499346.10 -do- 17. 013487/26-5-98 Rs. 499346.10 -do- 18. 013683/28-5-98 Rs. 499346.10 -do- 19. 014091/2-6-98 Rs. 499357.32 -do- 20. 014505/5-6-98 Rs. 302634.00 -do- 21. 014504/5-6-98 Rs. 2,54,924.01 -do-" 3. There is no dispute and the factum that the respondent received payment in terms of the export order and the irrevocable letter of....
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....value of Rs. 200/- was applicable to woven jackets as well. The term 'cap value' in DEPB implies the maximum FOB value of exports per piece. In other words the cap value of Rs. 200/- per piece on DEPB entitlement means that the exporter will get DEPB upto Rs. 40/- per piece. 8. The respondent moved an application for credit of DEPB for the shipments made including the aforesaid shipments. The respondent was given credit for the export/shipment on 26th March, 1998 at Sl. No. 1 as per the rate prevailing before 15th April, 1998 i.e. 23% of the FOB value on each exported jacket. However, for the balance exports from Sl. No. 2 to 21 made after 15th April, 1998, the respondent was given credit @ Rs. 40 per jacket by applying the revised DEPB rate read with the circular dated 28th July, 1998. FOB value per jacket was Rs. 1,000/- and thus the respondent was denied substantial benefit of DEPB credit by restricting FOB credit to Rs. 200/- per jacket. In other words for shipments at Sl. No. 2 to 21. the respondent was given DEPB credit of Rs. 40/- per jacket. 9. The respondent made representations pleading promissory estoppel and the factum that the respondent had entered int....
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....pply against a Statute but it applies against the policy decision and executive action. Promissory estoppel being a doctrine of equity does not also apply if the State or the executive authority is able to show that larger public interest required a change in the policy and it would be inequitable to enforce "estoppel" against the Government. Thus, promissory estoppel being an equitable doctrine must yield to the equity, if larger public interest so requires and it can be shown by the Government or the public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by them. 14. In the present case, the appellants have not placed any factual matrix on record to justify or show that the modification was made in public interest. However, what was pointed out is that DEPB rates were always susceptible to change at anytime. It was submitted that no promise was made by the appellant that the rate fixed shall continue when exports were made. Thus, the respondent was fully aware that the DEPB rates may undergo reduction/modification. The appellants have relied upon the....
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....applicable as existing on the date of export as defined in paragraph 15.15 of Handbook (Vol. 1). xxxx  xxxx  xxxx 4. The DEPB rate aims to neutralise the incidence of duty on the inputs used in the export product. Therefore, the DEPB rates as given in Appendix 28A refer to normally tradable/exportable product..." 17. The respondent has, however, relied upon clause 1.5 of the Exim Policy which reads as under :- "In case an export or import that is permitted freely under this policy is subsequently subjected to any restriction or regulation, such export or import will ordinarily be permitted notwithstanding such restriction or regulations, unless otherwise stipulated provided that the shipment of the export or import is made within original validity or irrevocable letter of credit establish before the date of imposition of such restriction." 18. It is the stand of the appellants that paragraph 1.5 of the Exim Policy 1997-2002 is not applicable to DEPB credit as the same is determined on the prevailing rates of custom duty on the import content of the export product. The result is "neutralisation", (Refer Liberty India (supra)). 19.....
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....ject to the payment of duty as prevalent on the date of the entry of the goods. An exemption notification issued under Section 25 of the Act had the effect of suspending the collection of customs duty. It 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 as is obvious from the language of Section 25 of the Act. Under the General Clauses Act an authority which has the power to issue a notification has the undoubted power to rescind or modify the notification in a like manner. From the very nature of power of exemption granted to the Government under Section 25 of the Act, it follows that the same is with a view to enabling the Government to regulate, control and promote th....
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....ons for all times to come, irrespective of the satisfaction of the Government that a change in the policy was necessary in the "public interest". The courts, do not interfere with the fiscal policy where the Government acts in "public interest" and neither any fraud or lack of bona fides is alleged much less established. The Government has to be left free to determine the priorities in the matter of utilisation of finances and to act in the public interest while issuing or modifying or withdrawing an exemption notification under Section 25(1) of the Act." 24. The aforesaid decision and ratio was clarified in Shrijee Sales Corporation and Another v. Union of India, (1997) 3 SCC 398 = 1997 (89) E.L.T. 452 (S.C.) in which again the same notification withdrawing tax concessions in the case of PVC resin was in issue. It was held as under : "7. The next question is whether the fact that the Notification No. 66 mentioned the period during which it was to remain in force, would make any difference to the situation. In other words, could it be said that an exemption notified without specifying the period within which the exemption would remain in force, would be withdrawn in....
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....as also highlighted that in the case of Kasinka Trading (supra) the burden of customs duty etc. had been passed on the consumers and there was no question of the asscssee being put to a huge loss. 27. Again in the case of U.P. Power Corporation Limited and Another v. Sant Steels & Alloys (P) Limited and Others, (2008) 2 SCC 777 principle of promissory estoppel was applied in case of a notification issued under a legislative enactment, i.e., delegated legislation. It was held that no doubt the Government has power to revoke the notification but when the other party has suffered on account of the revocation, then if a promise is made and acted upon, principle of promissory estoppel can be applied. Delegated legislation cannot be treated at par with the primary legislation and, therefore, are not entitled to same degree of protection in respect of retrospectivity. Further, the onus is on the Government to show that the concession or benefit has been withdrawn in a public interest and evidence and material must be brought on record to establish the plea of larger public interest by the Government/authority. 28. In the present case, the appellant has not pleaded that why....