TaxTMI 
TaxTMI 
2020 (4) TMI 669
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.....20626/2015, C.A. No. 2285 of 2020 @ SLP (C) No.21583/2015, C.A. No. 2286 of 2020 @ SLP (C) No.19320/2015, C.A. No. 2287 of 2020 @ SLP (C) No.19371/2015, C.A. No. 2288 of 2020 @ SLP (C) No.20109/2015, C.A. No. 2289 of 2020 @ SLP (C) No.19378/2015, C.A. No. 2290 of 2020 @ SLP (C) No.19375/2015, C.A. No. 2291 of 2020 @ SLP (C) No.21406/2015, C.A. No. 2292 of 2020 @ SLP (C) No.23331/2015, C.A. No. 2293 of 2020 @ SLP (C) No.20630/2015, C.A. No. 2294 of 2020 @ SLP (C) No.20631/2015, C.A. No. 2295 of 2020 @ SLP (C) No.20628/2015, C.A. No. 2296 of 2020 @ SLP (C) No.20627/2015, C.A. No. 2297 of 2020 @ SLP (C) No.19228/2015, C.A. No. 2298 of 2020 @ SLP (C) No.23394/2015, C.A. No. 2299 of 2020 @ SLP (C) No.23399/2015, C.A. No. 2300 of 2020 @ SLP (C) No.23328/2015, C.A. No. 2301 of 2020 @ SLP (C) No.19373/2015, C.A. No. 2302 of 2020 @ SLP (C) No.23329/2015, C.A. No. 2303 of 2020 @ SLP (C) No.23326/2015, C.A. No. 2304 of 2020 @ SLP (C) No.20442/2015, C.A. No. 2305 of 2020 @ SLP (C) No.23398/2015, C.A. No. 2306 of 2020 @ SLP (C) No.23393/2015, C.A. No. 2307 of 2020 @ SLP (C) No.20370/2015, C.A. No. 2308 of 2020 @ SLP (C) No.19842/2015, C.A. No. 2309 of 2020 @ SLP (C) No.22568/2015, C.A. No. 231....
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....of 2020 @ SLP (C) No. 10257/2018, C.A. No. 2360 of 2020 @ SLP (C) No.10253/2018, C.A. No. 2361 of 2020 @ SLP (C) No.12148/2018 and, C.A. No. 2362 of 2020 @ SLP (C) No.12496/2018. Arun Mishra, M. R. Shah And B.R. Gavai For the Petitioner(s) : Mr. B. Krishna Prasad, AOR, Mr. Ashish Gopal Garg,Adv., Mr. Rakesh Garg,Adv., Ms. Shweta Garg, AOR And Mr. Himanshu Shekhar, AOR For the Respondent(s) : Mr. E. C. Agrawala, AOR, Mr. Ramendra Lal Auddy, AOR, Mr. Rajan Narain, AOR, Mr. V. K. Sidharthan, AOR, Mr. S. S. Shroff, AOR, M/S. K J John And Co, AOR, Mrs. Bina Gupta, AOR, Ms. Diksha Rai, AOR, Mr. K. V. Mohan, AOR, Mr. Satya Mitra, AOR, Mr. Partha Sil, AOR, Mr. Pawanshree Agrawal, AOR, Mr. Mahfooz Ahsan Nazki, AOR, Mr. Shriram P. Pingle, AOR, Mr. Shekhar Prit Jha, AOR, Mr. B. Krishna Prasad, AOR, Mr. Praveen Kumar, AOR, M/S. Khaitan & Co., AOR, Mr. Rahul Narayan, AOR, Mr. Shashwat Goel,Adv., Mr. Nikhil Singhvi,Adv., Ms. Sonia Dube,Adv., Mr. Shatadru Chakraborty,Adv., Ms. Kanchan Yadav,Adv., Mr. Anurag Singh,Adv., M/S. Legal Options, AOR, Mr. Sunil Murarka,Adv., Mr. Kunal Chatterji, AOR, Ms. Maitrayee Banerjee,Adv., Mr. Pravar Veer Misra,Adv., Mr. R. Parthasarathy, AOR, Mr. Vishal G....
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.... amount of duty paid in cash/Personal Ledger Account (PLA) on the finished goods. That the said incentive of refund of the duty paid in cash/PLA was available for the period of 5 years from the date of commencement of commercial production. The object of the Incentive Scheme was to revive the economy in Kutch District by attracting fresh large scale investments from entrepreneurs by setting up new industries in the said District so as to generate new employment which in turn would help Kutch District and its people to be brought back in the main stream with the Nation. The said notification operationalised the incentive scheme in the following manner: a) The eligible unit was required to produce a certificate from a High Powered Committee comprising of a Chief Commissioner of Central Excise and the Chief Secretary to the Government of Gujarat certifying that the unit was indeed a new industrial unit which had been set up on or after the date of the Exemption Notification but not later than 31.07.2003 (this cut-off date was subsequently extended to 31.12.2005); b) The unit was to furnish a declaration regarding the value of investment in plant and machinery install....
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.... balances. 3.4 According to the original writ petitioners, in view of the inventive offered under Notification No. 39/2001-CE, the respondents herein -original writ petitioners which had initially planned to expand their manufacturing activities at Maharashtra, decided to instead set up the new units in the Kutch District. That was in the month of December, 2005. According to the original writ petitioners, the said decision was taken only because of the "incentive" promised by the Government to refund excise duty paid in the Kutch area. According to the original writ petitioners, as a result of the decision to set up a new unit in Kutch District, the company had to additionally incur substantial costs towards additional freight, handling charges, storage charges etc., which worked out to approximately Rs. 2,200/- PMT. In addition, the company suffered severe locational disadvantages. 3.5 Original writ petitioners commenced commercial production of split/crude fatty acid, etc. somewhere between the months of November, 2004 to December, 2005. The primary raw materials for manufacture of these final products was palm kernel oil, crude palm kernel oil, other vegetable oils. 3.....
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....me; v) the impugned notifications are only a modification to give effect to the real intention of the Government and are not withdrawal of the benefit; and vi) in light of the misuse of the exemption pleaded by UOI, public interest warrants such withdrawal. 3.8 Simultaneously, the manufacturing units also filed representations to the Government for re-consideration. Pursuant to the representations, one another notification was issued by the Central Government vide Notification No. 33/2008- CEdated 10.6.2008. Therefore, the original writ petitioners amended the writ petitions challenging the subsequent notification dated 10.6.2008 also. It appears that thereafter the Central Government vide notification No. 51/2008 dated 3.10.2008 revised the deemed value addition at 75% in respect of the products manufactured by the original writ petitioners without giving them any option of applying for a special rate. 3.9 The aforesaid writ petitions were heard by the Division Bench. The members of the Division Bench differed. One learned Judge allowed the writ petitions and another learned Judge held that the writ petitions deserve to be dismissed. In view of the differen....
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....-matter of this Court in the case of Civil Appeals @ SLP (c) Nos. 28194-28201 of 2010, all these appeals are also decided and disposed of together with this common judgment and order. Civil Appeal Nos. ................... of 2020 @ SLP (C) Nos. 15481-15489 of 2011 5. These Civil Appeals arise out of the impugned Judgment and Order passed by the High Court of Sikkim at Gangtok dated 15.11.2010 passed in Writ Petition Nos. 11/2008 and other allied writ petitions, by which the High Court has quashed and set aside the similar notifications dated 27.03.2008 and 10.06.2008 allowing the refund of excise duty on value addition basis, on the ground that the same are against the principle of promissory estoppel. As the original notifications dated 09.09.2003 as well as OM dated 01.04.2007 and the subsequent notifications dated 27.03.2008 and 10.06.2008 are as such similar to the notification No. 16 of 2008 applicable to Kutch area of Gujarat, the present group of Civil Appeals shall also be governed by this common Judgment and Order. Civil Appeal No. .........of 2020 @ SLP (c) No. 11878/2015 and other allied matters 6. All these appeals arise out of the impugned common Judgment a....
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....bsp;SLP (C) No.20627/2015 Guwahati WP C No.228/2015 22.01.2015 22 3.28 SLP (C) No.19228/2015 Guwahati WP C No.932/2015 20.02.2015 23 3.29 SLP (C) No.23394/2015 Guwahati WP C No.1472/2013 20.11.2014 24 3.30 SLP (C) No.23399/2015 Guwahati WP C No.227/2015 22.01.2015 25 3.31 SLP (C) No.23328/2015 Guwahati WP C No.487/2015 31.01.2015 26 3.32 SLP (C) No.19373/2015 Guwahati WP C No.1694/2014 20.11.2014 27 3.33 SLP (C) No.23329/2015 Guwahati WP C No.279/2013 20.11.2014 28 3.34 SLP (C) No.23326/2015 Guwahati WP C No.239/2013 20.11.2014 29 3.35 SLP (C) No.20442/2015 Guwahati WP C No.972/2015 24.02.2015 30 3.36 SLP (C) No.23398/2015 Guwahati WP C No.723/2014 20.11.2014 31 3.37 SLP (C) No.23393/2015 Guwahati WP C No.1696/2014 20.11.2014 32 3.38 SLP (C) No.20370/2015 Guwahati WP C No.864/2015 19.02.2015 33 3.39 SLP (C) No.19842/2015 Guwahati WP C No.1433/2015 30.03.2015 34 3.40 SLP (C) N....
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....ati WP C No.211/2015 23.01.2015 61 3.67 SLP (C) No.27041/2015 Guwahati WP C No.632/2013 20.11.2014 62 3.68 SLP (C) No.27024/2015 Guwahati WP C No.242/2013 20.11.2014 63 3.69 SLP (C) No.27034/2015 Guwahati WP C No.312/2013 20.11.2014 64 3.70 SLP (C) No.26284/2015 Guwahati WP C No.486/2015 31.01.2015 65 3.71 SLP (C) No.27053/2015 Guwahati WP C No.417/2013 20.11.2014 66 3.72 SLP (C) No.27058/2015 Guwahati WP C No.399/2013 20.11.2014 67 3.73 SLP (C) No.25804/2015 Guwahati WP C No.528/2015 04.02.2015 68 3.74 SLP (C) No.27046/2015 Guwahati WP C No.1153/2013 20.11.2014 69 3.75 SLP (C) No.26767/2015 Guwahati WP C No.240/2013 20.11.2014 70 3.76 SLP (C) No.27043/2015 Guwahati WP C No.457/2013 20.11.2014 71 3.77 SLP (C) No.26821/2015 Guwahati WP C No.6698/2013 20.11.2014 72 3.78 SLP (C) No.27050/2015 Guwahati WP C No.290/2015 28.01.2015 73 3.79 SLP (C) No.26294/2015 Guwahati WP C No.....
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....017, 27/2017, 40/2015 and 41/2015 respectively, by which the High Court has quashed and set aside the subsequent notification No. 20 of 2008 dated 27.03.2008, notification No. 36 of 2008 dated 10.06.2008 and notification No. 38 of 2008 dated 10.06.2008 on the ground that the same are hit by the doctrine of promissory estoppel, the Union of India has preferred the present Appeals. 7.1 In line with the Industrial Policy, 2007, notification No. 20/2008 was issued whereby with respect to the new undertakings established, the goods were exempted from so much of the duty of excise leviable thereon as was to the equivalent to the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilization of CENVAT credit. In the year 2008, subsequent notifications impugned before the High Court were issued, by which the refund was allowable on the duty payable on the goods manufactured on value addition basis, the same are set aside by the High Court by the impugned common judgment and order on the ground that the same are hit by the doctrine of promissory estoppel. As otherwise, the submissions are common and the reasons on which the High Court has set aside the....
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....ype of tax evasion tactics. An analysis of cases booked by the Excise Department and the representations received from Industry Association had revealed misuse of exemptions given by the Government which was meant to be available only for genuine manufacturers. It is submitted that the modus operandi which was being followed by such unscrupulous manufacturers revealed that such unscrupulous manufacturers were reporting of bogus production by mere issuance of sale invoice without actual production of goods and supply/clearance of excisable goods, which would result in availment of CENVAT credit by buyers of such excisable goods in other parts of the country without actual production being carried out and in absence of actual receipt of goods; reporting of bogus production by such units in these areas where actual production takes place elsewhere in the country; over valuation of goods resulting in availment of excess credit by buyers; goods were supplied by manufacturers, importers to these units without issuance of sales invoice and these were backed by bogus sale invoices issued by traders who did not undertake actual supply of goods. The actual supplier of these goods issued bogu....
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....the intention of the Government to grant excise duty exemption was to provide such exemption only to actual value addition made in these areas. It is in the background of these facts and with a view to give effect to such a policy, the Government in exercise of powers conferred under Section 5A of the Central Excise Act modified the refund mechanism so as to provide that excise duty refund would be allowed only to the extent of duty payable on actual value addition made by the manufacturers undertaking manufacturing activities in these areas. As a result of the notification impugned before the High Court, the manufacturers are required to pay duty on full value of the goods manufactured and cleared by them in the same manner as per existing scheme but refund would be granted only to the extent of duty paid on the value addition made by them in these specified areas based on all India average of percentage of duty paid in cash and CENVAT credit; 8.5 The High Court has erred in not appreciating that the notification No. 16 of 2008 was issued by the Government in public interest and in the interest of revenue. 8.6 Learned counsel appearing on behalf of the Union of India has mad....
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....6.6 The Court has to look into the notification with a presumption of validity, and not examining the matter with microscopic view to weigh the sufficiency of the material available; 8.6.7 The doctrine of promissory estoppel sought to be invoked in the present case is not available. The doctrine of promissory estoppel will not be applicable if the change in stand of the Government is made on account of public policy and in the public interest; 8.6.8 There are limitations while invoking the doctrine of promissory estoppel. If the statute has permitted the power on withdrawal to the same authority, it may result into allowing the doctrine to operate in contravention to the statute; 8.6.9 The Word 'Promissory Estoppel" means that a party is prevented by his own acts from claiming a right to detriment of the other party who was entitled to rely on such conduct and has acted accordingly; 8.6.10 In respect of the exemptions that have been made by the Government, the doctrine of promissory estoppel will not be applicable if the change in the stand of the Government is made on account of public policy. 8.7 Heavy reliance is placed upon the decisions of this Court on "Promiss....
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....loyment opportunities, the Ministry of Finance, Government of India announced incentives for setting up new industries in the earthquake affected district of Kutch by issuing Central Excise Exemption Notification No. 39/2001-CE dated 31.07.200. The Notification granted exemption for a period of five years from the date of commencement of commercial production, to goods cleared from a new industrial units set up in the Kutch District of Gujarat from so much of duty of excise as was equivalent to the amount of duty paid in cash/PLA i.e. the duty paid on the goods other than the amount of duty paid by utilization of CENVAT Credit under the Cenvat Credit Rules, 2001. The incentive offered by the notification was the refund of the total amount of Central Excise Duty paid in cash/PLA; 9.1.2 Respective original writ petitioners based on the promise held out by the Government of India to refund the Central Excise Duty paid in cash/PLA for a period of five years from the commencement of commercial production by new industrial units set up in Kutch. They invested a very huge amount only in view of the promise held out by the Government of India; 9.1.3 Explanatory Memorandum to the noti....
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....efund; 9.2.3 The amendment made to Notification 39/2001 by the Notification No. 16/2008 and amendments thereto had the effect of reneging upon the promise made by the Central Government to grant incentive by way of refund of the duty paid in cash/PLA for a period of five years starting from the date of commencement of commercial production. It is settled law laid down by this Court that the Government is bound to implement its promise, if a person has irrevocably altered his position acting on an unequivocal promise held out by the Government, save and except in a situation where the withdrawal of the incentive is justified on grounds of supervening public interest. 9.2.4 On the applicability of Principle of Promissory Estoppel, the respondents rely upon the decisions of this Court in the cases of Union of India v. Godfrey Philips India Ltd. (1985) 4 SCC 369, Pournami Oil Mills v. State of Kerala 1986 (Supp) SCC 728, Shri Bakul Oil Industries v. State of Gujarat (1987) 1 SCC 31, Pawan Alloys & Casting Pvt. Ltd. v. U.P. Electricity Board (1997) 7 SCC 251, Dai Ichi Karkaria Ltd. v. Union of India (2000) 4 SCC 57, Mahabir Vegetable Oils (P) Ltd. v. State of Haryana (2006) 3 SCC ....
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....as such cannot be a ground to withdraw the earlier exemption notification. FINDINGS: 10. By the impugned Judgment and Order, the High Court has set aside the subsequent notification No. 16 of 2008 dated 27.03.2008 mainly on the ground that the same is retrospective and not retro-active in nature and the same is hit by the Doctrine of Promissory Estoppel. It is the case on behalf of the Union of India that the subsequent notification is as such in continuation of the earlier notification and the same is clarificatory and therefore can be made applicable retrospectively. It is also the case on behalf of the Union of India that the subsequent notification/amendment in the original notification did not in any way alter the basis of the original first notification of 2001. It is also the case on behalf of the Union of India that the subsequent notification of 2008 has been issued in the public interest and has been issued in exercise of the powers conferred under Section 5A of the Central Excise Act. Therefore, the questions which are posed for consideration of this Court are whether in the facts and circumstances of the case the subsequent notification which has been quashed and ....
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....rnment or the public authority to its promise, assurance or representation. 20. The facts of the appeals before us are not analogous to the facts in Indo-Afghan Agencies [(1968) 2 SCR 366 : AIR 1968 SC 718] or M.P. Sugar Mills [(1979) 2 SCC 409 : 1979 SCC (Tax) 144 : (1979) 2 SCR 641] . In the first case the petitioner therein had acted upon the unequivocal promises held out to it and exported goods on the specific assurance given to it and it was in that fact situation that it was held that Textile Commissioner who had enunciated the scheme was bound by the assurance thereof and obliged to carry out the promise made thereunder. As already noticed, in the present batch of cases neither the notification is of an executive character nor does it represent a scheme designed to achieve a particular purpose. It was a notification issued in public interest and again withdrawn in public interest. So far as the second case (M.P. Sugar Mills case [(1979) 2 SCC 409 : 1979 SCC (Tax) 144 : (1979) 2 SCR 641] ) is concerned the facts were totally different. In the correspondence exchanged between the State and the petitioners therein it was held out to the petitioners that the industry w....
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....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 further held that 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. 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 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. 11.2 In the case of Shrijee Sales Corporation (supra), it is observed and held that the principle of promissory....
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....otwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 229 of the Constitution. The rule of promissory estoppel being an equitable doctrine has to be moulded to suit the particular situation. It is not a hard-and-fast rule but an elastic one, the objective of which is to do justice between the parties and to extend an equitable treatment to them. This doctrine is a principle evolved by equity, to avoid injustice and though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. For application of the doctrine of promissory estoppel the promisee must establish that he suffered in detriment or altered his position by reliance on the promise. 33. Normally, the doctrine of promissory estoppel is being applied against the Government and defence based on executive necessity would not be accepted by the court. However, if it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the court would not raise an equity in fav....
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....ntrary as to retrospectivity either in parent Act or Rules or notifications involved. 13.2 In the case of Union of India v. Martin Lottery Agencies Ltd. (2009) 12 SCC 209, it is observed and held that whether a subordinate legislation or a parliamentary statute would be held to be clarificatory or declaratory would depend upon the nature thereof as also the object it seeks to achieve. 13.3 In the case of T.N. Electricity Board v. Status Spg. Mills Ltd. (2008) 7 SCC 353 it is observed and held that a clarificatory order can be given retrospective effect as it can throw light on substantive provision by principle of contemporanea expositio. 13.4 In the case of Zile Singh v. State of Haryana (2004) 8 SCC 1, it is observed that the presumption against retrospective operation is not applicable to declaratory statutes. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is "to explain" an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled ....
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....ies or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues." 13.6 In the of Commissioner of Customs (Import) v. Dilip Kumar and Company (2018) 9 SCC 1, after considering various decisions on the Interpretation of Fiscal Statutes, it is ultimately concluded that every taxing statute including, charging, computation and exemption clauses, at the threshold stage should be interpreted strictly. Further, though in case of ambiguity in charging provisions, the benefit necessarily goes in favour of the assessee, but for an exemption notification or exemption clause the benefit of ambiguity must be strictly interpreted in favour of the Revenue/State. It is further observed and held that a person claiming exemption, therefore, has to establish that his case squarely falls within the exemption notification, and while doing so, a notification should be construed against the assessee in case of ambiguity. A person who claims exemption has to establish his case. 14. Applying the law laid down by th....
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.... ii) Reporting of bogus production by such units in these areas where actual production takes place elsewhere in the country. iii) Over valuation of goods resulting in availment of excess credit by buyers. iv) Goods are supplied by manufacturers, importers to these units without issuance of sales invoice and these are backed by bogus sale invoices issued by traders who do not undertake actual supply of goods. The actual supplier of these goods issue bogus duty paid invoices to other manufacturers who take credit based on such invoices without receipt of goods. Therefore, the Government came out with the impugned notifications/industrial policies that the refund of excise duty shall be provided on actual and calculated on the basis of actual value addition. On a fair reading of the earlier notifications/industrial policies, it is clear that the object of granting the refund was to refund the excise duty paid on genuine manufacturing activities. The intention would not have been that irrespective of actual manufacturing/manufacturing activities and even if the goods are not actually manufactured, but are manufactured on paper, there shall be refund of ex....
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....er or in fact not manufactured at all. As the purpose of the original notifications/incentive schemes was being frustrated by such unscrupulous manufacturers who had indulged in different types of tax evasion tactics, the subsequent notifications/industrial policies have been issued allowing refund of excise duty only to the extent of duty payable on the actual value addition made by the manufacturers undertaking manufacturing activities in these areas which is absolutely in consonance with the incentive scheme and the intention of the Government to provide the excise duty exemption only in respect of genuine manufacturing activities carried out in these areas. 14.3 As observed hereinabove, 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 undertaki....
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....red 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. 16 Under the circumstances, 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. Consequently, all these appeals are ALLOWED. The impugned Judgments and Orders passed by the respective High Courts, which are impugned in the present appeals, quashing and setting aside the subsequent notifications/industrial policies impugned in the respective writ petitions before the respective High Courts, are hereby quashed and set aside. Consequently, the original writ petitions filed by the respective original writ petitioners before the respective High Courts challenging the respective subsequent notifications/industrial policies stand dismissed and for the reasons stated hereinabove, the challenge to the respec....