TaxTMI 
TaxTMI 
2019 (9) TMI 791
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....he Central Excise Act, 1944 (1 of 1994) (hereinafter referred to as the "Central Excise Act") read with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), being satisfied that it is necessary in the public interest, by Notification No. 71 of 2003 dated 09.09.2003, exempted the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) other than the goods specified in Annexure-I to the said Notification, from the payment of duties under the said statutes. The notification provided that so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as was equivalent to the amount of duty paid by the manufacturer of the said goods, other than the amount of duty paid by utilisation of CENVAT credit under the CENVAT Credit Rules, 2002, was exempted. This exemption was available to the units located in Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Pro....
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....Writ Appeal No. 81 of 2011 before the Appellate Bench of Gauhati High Court. Vide the judgment and order dated 20.04.2016, the Appellate Bench of the High Court allowed the appeal; set aside the judgment and order passed by the Single Judge dated 10.12.2010 and quashed Notification No. 11 of 2007-CE dated 01.03.2007. It further directed the Investment Appraisal Committee to give an opportunity of hearing to the appellant before it (respondent herein) so that it can prove the amount it had actually invested in the specified items for availing the benefits under the earlier notifications and further directed that if the appellant proves that it had actually invested the amount, the respondent authorities shall refund to the appellant so much of the excise duty to which the appellant therein would be entitled as per the earlier notifications. 6. The respondent in Civil Appeal No. 2345 of 2017, namely, M/s Dharampal Satyapal Ltd., had also filed another petition being Writ Petition (C) No. 749 of 2010 insofar as its product 'pan masala without tobacco', is concerned. The same was also dismissed by the learned Single Judge of the Gauhati High Court vide the common judgment and order d....
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....therefore, the 2007 Notification cannot be said to be in the public interest is totally erroneous. It is further submitted that while doing so, the Sikkim High Court has assumed the role of an expert in the field and, therefore, travelled beyond its jurisdiction. 9. Insofar as the Gauhati High Court is concerned, the learned senior counsel submitted that the learned Single Judge of the Gauhati High Court had rightly dismissed the writ petitions, finding that in the conflict between the interest of an individual and the public interest, individual interest should give way to the larger public interest. It is submitted that, the Appellate Bench of the Gauhati High Court in its judgment dated 20.04.2016 has grossly erred in interfering with the reasoned order passed by the learned Single Judge. It is submitted that, in the said appeal, the product that fell for consideration before the Appellate Bench of the High Court was Zarda scented tobacco and pan masala containing tobacco. It is submitted that, the products containing tobacco are indisputably hazardous to health and, therefore, the Notification which withdraws exemption granted for the manufacture of the said products is undou....
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....rom the assurance given by them to the writ petitioners. It is submitted that, considering these principles, the Sikkim High Court and the Appellate Bench of the Gauhati High Court have granted relief to the writ petitioners. It is submitted that, this Court has consistently held that, if a party changes its position to its detriment, on account of a promise given by the other party, the other party cannot be permitted to resile from such a promise. It is submitted that the doctrine of promissory estoppel is equally applicable to the State and its functionaries. Reliance in this respect is placed on the following judgments of this Court. M/s Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh and Ors. (1979) 2 SCC 409, Union of India & Ors. Vs. Godfrey Philips India Ltd. & Ors. (1985) 4 SCC 369 and Pawan Alloys & Casting Pvt. Ltd. vs. U.P. State Electricity Board & Ors. (1997) 7 SCC 251. 12. The issue raised in these appeals is no more res integra. This Court in a catena of decisions has considered the issue with regard to inapplicability of the doctrine of promissory estoppel, when the larger public interest demands so. We will refer, in brief, to the earlier judgme....
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....mphasis supplied) 14. It could thus be seen that, this Court has clearly held that the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to see 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 principle of equity must forever be present in the mind of the Court while considering the applicability of the doctrine. It has been held that the doctrine of promissory estoppel must yield when the equity so demands and when 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. After considering the earlier judgments on the issue, which have been heavily relied upon by the assesses, this Court has observed thus: "21. The power to grant exemption from payment of duty, additional duty etc. under the Act, as already noticed, flows from the provisions of Section 25(1) of the Act. The power to exempt includes the power to modify or withdraw the same. The liab....
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....fit to them. That certainly was not the object with which the notification had been issued. The withdrawal of exemption "in public interest" is a matter of policy and the courts would not bind the Government to its policy decisions 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." (emphasis supplied) 17. It has been observed, that the withdrawal of exemption in public interest is a matter of policy and the courts would not bind the Government to its policy decisions for all times to come, irrespective of the satisfaction of the Government that a change in the policy was necessary in the public interest. It has been held that, where the Government acts in public interest and neit....
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....Trading (supra). While considering the argument that when the notification prescribes a period during which the exemption would be available, such an exemption cannot be withdrawn till the end of the period prescribed, this Court observed thus: "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 public interest but not the one in which a period has been so specified? Once public interest is accepted as the superior equity which can override individual equity, the principle should be applicable even in cases where a period has been indicated. The Government is competent to resile from a promise even if there is no manifest public interest involved, provided, of course, no one is put in any adverse situation which cannot be rectified. To adopt the line of reasoning in Emmanuel Ayodeji Ajayi v. Briscoe, (1964) 3 All ER 556, quoted in M.P. Sugar Mills [Motilal Padampat Sugar Mills Co. Ltd. v. State of ....
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....reiterated the position that where public interest warrants, the principle of promissory estoppel cannot be invoked. Observing the aforesaid, the said challenge, as raised by the petitioner, came to be rejected. 24. In the case of Kanak Exports (supra), this Court again while considering the challenge for withdrawal of incentives to the exporters of some specified items held that, the incentive scheme in question was in the nature of concession or incentive which was a privilege of the Central Government. It was for the Government to take a decision to grant such a privilege or not. Grant of exemption, concession or incentive and modification thereof are the matters in the domain of public decisions of the Government. It further reiterated that when the withdrawal of such incentives was shown to have been done in public interest, the courts would not tinker with the policy decisions. This Court, after considering the materials on record as a matter of fact, held that withdrawal of exemption was in the public interest. 25. It could thus be seen that, it is more than well settled that the exemption granted, even when the notification granting exemption prescribes a particular per....
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....bit. As with all cancers, early diagnosis is important for successful treatment of oral cancer, as its prognosis is still very poor. There is, nowadays, a strong drive to apply proteomics technology to molecular diagnosis of cancer. Expression profiling of tumour tissues, molecular classification of tumours and identification of markers to allow early detection, sensitive diagnosis and effective treatment are now being explored for oral cancers. Genes with significant differences in expression levels between normal, dysplastic and tumour samples have been reported and this should help in better understanding the progression of oral squamous cell carcinoma (Kuo et al., 2002; Leethanakul et al., 2003). DNA aneuploidy in oral leukoplakia in Caucasian tobacco users has been found to signal a very high risk for subsequent development of oral squamous cell carcinomas and associated mortality (Sudbo and Reith, 2003; Sudbo et al., 2004). A risk assessment model to predict progression of premalignant lesions that includes histology and a score combining chromosomal polysomy, expression and loss of heterozygosity on 3p or 9p has also been described (Lee et al., 2000; Rosin et al., 2002....
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....nt the initial experimentations with tobacco from developing into addiction in adulthood. People should be counselled to avoid all habits of tobacco and undergo nicotine replacement therapy along with antioxidants. Knowledge and awareness about systemic and oral ill effects of tobacco should be spread through tobacco control programs in the pursuit for a tobacco-free world." 28. It was sought to be argued on behalf of the manufacturers of pan masala without tobacco, that the pan masala without tobacco stands on a different pedestal than the pan masala with tobacco. It was sought to be argued that, pan masala without tobacco cannot be considered to be hazardous to health. The Department of Head and Neck Surgery, Tata Memorial Hospital, Mumbai through its experts Garg A, Chaturvedi P. Mishra A. and Datta S. had conducted a study on "A review on Harmful Effects of Pan Masala Indian Journal of Cancer (October-December 2015) Volume 52, Issue 4". It is to be noted that this study is of 'pan masala without tobacco'. It will be apposite to refer to the following observations of the said report: "Policy Issues Concerning Pan Masala Pan masala use is rampant in India by all the secti....
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....looded the Indian markets and become popular amongst all age groups. It is observed that pan masala with tobacco as well as without tobacco have been found to be having a potent carcinogenic mixtures that can cause oral cancer. It further found that, these products are an addictive and enhance the early appearance of oral sub-mucous fibrosis (OSMF). It is especially so in the young users who could be more susceptible to the disease. 30. The report further finds that, in the National Family Health Survey-2, it has been found that 21% of people over 15 years of age consumed pan masala or tobacco. The report finds that, though advertising tobacco products including pan masala containing tobacco is banned in India since 01.05.2004, to bypass this ban, tobacco companies are advertising pan masala ostensibly without tobacco, heavily in all forms of media. It has been found that, after the ban on pan masala and gutkha, the sale has come down. The 2016 report finds that, in Mumbai, after the ban on pan masala and gutkha, the sale has come down and the percentage of users quitting and reducing the habit was 23.53% and 55.88% respectively. 31. It could thus be seen that, by a scientific ....
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....Single Judge has also specifically observed in his judgment that the vires of Section 154 of the Finance Act, 2003 vide which the exemption granted to the manufacturers of cigarette was rescinded with retrospective effect, has been upheld by this Court in the case of R.C. Tobacco (P) Ltd. and Another Vs. Union of India and Another, reported in 2005(7)SCC 725. We are surprised at the approach of the Appellate Bench of the Gauhati High Court. It is pertinent to note that the contention of the learned A.S.G. appearing on behalf of the Union of India to the following effect have been specifically recorded by the Judges of the Appellate Bench of the High Court in paragraph 14 of the judgment, which reads thus: "that the legality of the withdrawal of the benefit granted to the tobacco manufacturing units such as the appellant under the 1997 Industrial Policy by Section 154 of the Finance Act, 2003 was already upheld the Apex Court in R. C. Tobacco (P) Ltd. vs. Union of India, (2005)7 SCC 725." 35. The Appellate Bench of the High Court observed that some of the notifications providing modalities for exemption were issued subsequent to the enactment of Section 154 of the Finance Act, ....