TaxTMI 
TaxTMI 
2018 (3) TMI 1149
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.... 2007. The petitioner, for the conduct of the said business, procured the said goods locally and from abroad. The petitioner overseas are favoured with an Import Code issued by the Director General of Foreign Trade. During the course of their business, the petitioner entered into a sale contract dated 10.10.2017 with their overseas supplier M/s.Afrisian Mozambique LDA, Mozambique, for supply of 2000 MTs in 80'x20'ft containers of "Pigeon Peas (white) - Mozambique Origin" @ USD 275 per Mt C & F, Nhava Sheva/Chennai. (ii) The 1st respondent issued a Trade Notice dated 17.11.2017 in connection with the implementation of a Memorandum of Understanding between India and Mozambique for import pigeon peas grown in Mozambique. The Government of Republic of India entered into a Memorandum of Understanding with the Government of Republic of Mozambique dated 07.07.2016 with the primary objectives , viz., (1) Promoting of the production pigeon peas and other pulses in Mozambique through active cooperation between the Ministry of Consumer Affairs Food and Public Distribution of the Republic of India and the Ministry of Agriculture and Food Security of the Republic of Mo....
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.... of Origin (COO) issued by ICM, and not to accept any other imports. (vii) Considering the request of Government of Mozambique and since imports permitted vide trade notice dated 17.11.2017 for implementing the Memorandum of Understanding between India and Mozambique, it was decided to withdraw the No Objection Certificate granted to the petitioner for import of 2000 MTs of Pigeon Peas from Mozambique under India- Mozambique Memorandum of Understanding vide letter dated 28.11.2016. The petitioner was asked to accept the Certificate of Origin from ICM and thereafter seek the No Objection Certificate from contractor. (viii) According to the petitioner, the 1st respondent issued the No Objection Certificate in terms of trade notice dated 17.11.2017 attributable to the 1st respondent and therefore, the withdrawal of No Objection Certificate granted to the petitioner by the 1st respondent is wholly arbitrary and clear violation of principles of natural justice. In these circumstances, the petitioner has filed the above writ petition. 3. The brief case of the respondents is as follows:- (i) According to the respondents, on 21.11.2017, the petitioner, via e-m....
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....he Country of Origin Certificate from ICM as others have done. As on 09.02.2018, quantity of 1479 MTs was available for export to India. (vi) Since the Government of Mozambique had requested that import of only those pulses from Mozambique that is supported by the Certificate of Origin issued by ICM, should be allowed, the respondent had withdrawn the 'No Objection Certificate' issued to the petitioner. The 1st respondent neither withdrawn the 'No Objection Certificate' on the ground of it not being genuine nor on the ground of not complying with the procedure/guideline issued vide trade notice dated 17.11.2017, but, on the ground that the petitioner has not followed the procedure/guideline laid down by the Government of Republic of Mozambique and had submitted that the Country of Origin Certificate issued by a party other than ICM. It is the responsibility of the petitioner to follow the procedure/guidelines of the Government of the Country of import. Only the petitioner is responsible for consequences arising out of any violation of the procedure laid down by the country of import. In these circumstances, the respondents prayed for dismissal of the writ p....
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.... can arise. SRO 1729/93 itself has specifically provided that the state will have the power to add to the negative list. The appellant was therefore well aware that the benefit of SRO 1729/93 was a precarious one liable to be cancelled or varied at any time. In addition, Section 10(3) of the Act also enables the State to withdraw or cancel any exemption though prospectively. Therefore, according to him, there has been no arbitrary action on the part of the State in issuing SRO 38/98 with prospective effect. It was well within their powers under Section 10(3)as well as under clause (g) of the negative list in SRO 1729/93. Referring to the decisions of this Court in Kasinka Trading Vs. Union of India, 1995 (1) SCC 274 and Sales Tax Officer Vs. Shree Durga Oil Mills, 1998 (1) SCC 572 it is contended that where public interest is involved, no rule of promissory estoppel can bind the Government. That the promissory estoppel does not operate against a statute. That in view of the defeasible nature of the right granted by SRO 1729/93, no right came to vested in the appellant by reason thereof to justify the invocation of the principle of promissory estoppel; nor could they have any legiti....
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....on for a period of five years, which was to run from the date of commencement of production. By a subsequent notification dated 29.9.1980, published on Gazette on 21.10.1980, the State of Kerala withdrew the exemption relating to the purchase tax and confined the exemption from sales tax to the limit specified in the proviso of the said notification. While quashing the subsequent notification, it was observed: "If in response to such an order and in consideration of the concession made available, promoters of any small-scale concern have set up their industries within the State of Kerala, they would certainly be entitled to plead the rule of estoppel in their favour when the State of Kerala purports to act differently. Several decisions of this Court were cited in support of the stand of the appellants that in similar circumstances the plea of estoppel can be and has been applied and the leading authority on this point is the case of M.P. Sugar Mills v. State of U.P.. On the other hand, reliance has been placed on behalf of the State on a judgment of this Court in Bakul Cashew Co. v. Sales Tax Officer, Quilon, 1986 (2) SCC 365. In Bakul Company's (supra) case this Cour....
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....exemption from payment of tax under the said rule. If the Government grants exemption to a new industry and if on the basis of the representation made by the Government an industry is established in order to avail the benefit of exemption, it may then follow that the new industry can legitimately raise a grievance that the exemption could not be withdrawn except by means of legislation having regard to the fact that Promissory Estoppel cannot be claimed against a statute". 32. Answering the question as to whether the Board is restrained from withdrawing the rebate prematurely before the completion of three/five years period by virtue of doctrine of promissory estoppel, this Court in Pawan Alloys & Casting Pvt. Ltd. Vs. U.P. State Electricity Board, 1997 (7) SCC 251, held: "10. It is now well settled by a series of decisions of this Court that the State authorities as well as its limbs like the Board covered by the sweep of Article 12 of the Constitution of India being treated as 'State' within the meaning of the said Article, can be made subject to the equitable doctrine of promissory estoppel in cases where because of their representation the party claimi....
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....espect of any tax payable under the Act. Sub-section (3) enables the Government to cancel or vary any such notification issued under sub-section (1). Significantly, sub-section (3) is silent about retrospectively for any notification issued under it. Thus while sub-section (1) authorizes the grant of an exemption or reduction in rate with retrospective effect in respect of any tax payable under the Act, sub-section (3) does not provide for any cancellation or variation retrospectively. In issuing notifications under Section 10, the Government is exercising only delegated powers. While the legislature has plenary powers to Legislate prospectively and retrospectively, a delegated authority like the Government acting under the powers conferred on it by the enactment concerned, can exercise only those powers which are specifically conferred. Therefore, if it is intended to confer on the Government a power to cancel/withdraw/vary an exemption or reduction in rate of tax, with retrospective effect, such a power has to be specifically conferred, and in the absence of any such specific conferment of power in sub-section (3) of Section 10, the Government cannot issue notifications there und....
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.... of the High Court is set aside. Writ of mandamus is issued restraining the respondents from taking any proceedings against MRF Ltd. contrary to or inconsistent with the eligibility certificate dated 10.1.1997 and the exemption order dated 10.6.1998. Parties shall bear their own costs." (iii) 2009(246) E.L.T.495 (Del.) [ Union of India v. Himsheel International], wherein High Court of Delhi held as follows:- "13. Doctrine of promissory estoppel has been explained and expounded in several decisions of the Supreme Court, (see Motilal Padampat Sugar Mills Co. Ltd. versus State of U.P. (1979) 2 SCC 409; State of Arunachal Pradesh versus Nezone Law House, (2008) 5 SCC 609; Sharma Transport versus Govt. Of A.P., (2002) 2 SCC 188; Jasbir Singh Chhabra v. State of Punjab, (2010) 4 SCC 192; State of Bihar & Ors. versus Kalyanpur Cements Ltd., (2010) 3 SCC 274). It is principally evolved on equity and to avoid injustice. It is applied to the Executive action of the State and is applied when it can be shown that it would be equitable to hold the Government or the public authority to the promise or representation made by it. Promissory estoppel does not apply against a Statut....
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....considered view that upon the facts and circumstances of the case, the doctrine of promissory estoppel will apply, as the petitioner in pursuance of Open General Licence Order No. 1 of 1983 has carried out certain acts detrimental to himself by entering into contract with the foreign supplier to supply Isoborneol and by opening an irrevocable letter of credit and other incidental and connected acts. It was further pointed out by the learned senior counsel for the petitioner that by virtue of an earlier order passed by this court in W.M.P. Nos. 12555 and 12556 of 1984, the petitioner was allowed to clear the goods on payment of the customs duty, and the petitioner has paid the customs duty and cleared the goods. The only point that is open to the respondents is with regard to the levy of penalty under Section 124 of the Customs Act. In the instant case, the import has been in accordance with O.G.L. Order No. 1/83 and as the Public Notice dated 17-10-1983 has no legal effect of amending the O.G.L. Order No. 1/83, the import of Isoborneol is in accordance with law and levy of penalty does not arise upon the facts and circumstances of the case." 6. Countering the submissions made by....
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.... made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it.This aspect has been dealt with fully in Motilal Sugar Mills case (supra) and we find ourselves wholly in agreement with what has been said in that decision on this point." 7. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side it could be seen that the petitioner is aggrieved by the proceedings of the 1st respondent dated 18.12.2017, by which, the 1st respondent has withdrawn the 'No Objection Certificate' granted to the petitioner for import of 2000 MTs of "Pigeon Peas from Mozambique on the ground that subsequently the Government of Mozambique informed the Government of India mandating only ICM (Institute de Cereasi de Mozambique) to be the sole designated agency responsible for regulating export of pulses to India under Memorandum of Understanding. Import effected by the petitioner is....