TaxTMI 
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2020 (4) TMI 669
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....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. 2310 of 2020 @ SLP (C) No.21605/2015, C.A. No. 2363 of 2020 @ S....
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....P (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 Gupta, AOR, Mr. Rana Ranjit Singh, AOR, Mr. Gopal Singh, AOR, Mr. R....
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....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 installed in the factory as on the date of commercial production and also obtain a certificate to this ....
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....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. 3.6 The said Incentive Notification No. 39/2001-CE was amended by another notification No. 16/2008-CE dated 27.03.2008 (impugned before the ....
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....ight 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 difference of opinion between the two learned Judges of the Division Bench, the matter was referred to a third learned Judge. By the impugned judgment and order, the third learned Judge has agre....
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....l 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 and Order passed by the High Court of Guwahati dated 20.11.2014 in Writ Appeal No. 243 of 2009 and other allied writ petitions, by which the High Court has quashed and set aside the subsequent notification....
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....hati 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) No.22568/2015 Guwahati WP C No.1427/2015 30.03.2015 35 3.41 SLP (C) No.21605/2015 Guwahati WP C No.931/2015 20.02.2015 36 3.42 SLP (C) No.23303/2015 Guwahati WP C No.2660/2013 28.11.2014 37 3.43 SLP (C) No.23301/2015 Guwahati WP C No.933/2015 20.02.2015 38 3.44 SLP (C) No.23334/2015 Guwahati WP C No.1789/2010 28.11.2014 39 3.45 SLP (C) No.21584/2015 Guwahati WP C No.4869/2009 20.11....
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....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.109/2013 20.11.2014 74 3.80 SLP (C) No.27048/2015 Guwahati WP C No.2468/2014 20.11.2014 75 3.81 SLP (C) No.26283/2015 Guwahati WP C No.6864/2014 19.12.2014 76 3.82 SLP (C) No.27049/2015 Guwahati WP C No.259/2015 23.01.2015 77 3.83 SLP (C) No.25799/2015 Guwahati WP C No.187/2013 20.11.2014 78 3.84 SLP (C) No.26295/2015 Guwahati WP C No.527/2015 04.02.2015 79 3.85 SLP (C) No.26287/2015 Guwahati WP C No.810/2013 20.11.2014 80 3.86 SLP (C) No.25797/2015 Guwahati WP C No.729/2014 20.11.2014 81 3.87 SLP (C) No.26290/2015 Guwahati WP C No.1723/2014 20.11.2014 82 3.88 SLP (C) No.27744/2015 Guwahati WP C No.6865/2014 19.12.2014 83 3.89....
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....he 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 impugned subsequent notifications are similar to the facts in the case of Civil Appeals @ SLP (c) Nos. 28194-28201 of 2010, all these Appeals are also decided and disposed of by this common judgment and order. 8. Learned counsel appearing on behalf of the Union of India has vehemently submitted that the High Court has materially erred in quashing and setting aside the notification No. 16 of 2008 dated 27.03.2008 on the ground that the same is retrospective and not retro-active and the same is barred by the doctrine of promissory estoppel. 8.1 It is submitted as under: That the High Court has not properly appreciated and/or considered the notification impugned before it and as such the High Court has misinterpreted and/or misread the notification No. 16 of 2008. It is submitted that the High Court has erred in treating and/or considering the notification No. 16 of 2008 as withdraw....
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....n 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 bogus duty paid invoices to other manufacturers who took credit based on such invoices without receipt of goods. Having found such activities by such unscrupulous manufacturers against the object and purpose of grant of exemption/incentive, therefore, the Government came out with the notification no. 16 of 2008 which as such can be said to be clarificatory in nature. By no stretch of imagination it can be said to be a withdrawal of exemption granted earlier and consequently it cannot be said to be in contravention of doctrine of promissory estoppel; 8.4 That the High Court has not properly appreciated and/or considered the reasons for issuance of the subsequent notification. The reason for issuance of the notification No. 16 of 2008 which as such can be said to be clarificatory was that by adopting such modus operandi, the units in these areas were wanting to pay maximum amount of duty in cash so t....
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....rcentage 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 made further submissions while assailing the impugned judgment and order passed by the High Court as follows: 8.6.1 That the Central Government has the power to provide for exemption from duty on goods either wholly or partly with or without condition as may be called for in public interest. The guiding factor for exercise of power is public interest. When the exemption notification was issued under Section 5A of the Central Excise Act, it was implicit in it that it could be rescinded or modified at any time if the public interest so demands; 8.6.2 The amendment notification is non-discriminatory and treat all industries at par. It only rationalizes the quantum of exemption by proposing rate of refund on the total duty payable. In the field of taxation, the Court shall be the slow to interfere with fiscal policy, more particularly when the same is issued with respect to exemption/incentive on fulfillm....
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....mptions 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 "Promissory Estoppel" in the cases of Kasinka Trading v. Union of India (1995) 1 SCC 274, Darshan Oils (P) Ltd. v. Union of India (1995) 1 SCC 345, Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398, STO v. Shree Durga Oil Mills (1998) 1 SCC 572, Papu Sweets and Biscuits v. Commissioner of Trade Tax, U.P. (1998) 7 SCC 228, State of Rajasthan v. Mahaveer Oil Industries (1999) 4 SCC 357, Shree Sidhbali Steels Ltd. v. State of U.P. (2011) 3 SCC 193, DG of Foreign Trade v. Kanak Exports (2016) 2 SCC 226 and Commissioner of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1. 8.8 It is further submitted by the learned counsel appearing on behalf of the Union of India that the High Court has not properly appreciated the fact that by notification No. 16 of 2008, as such, there is no material change in the earlier policy and, therefore, as such the amendment in the notification No. 39/2001 dated 31.07.2001 vide Notification No. 16/2008 c....
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....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 notification as also the Press Release issued by the Press Information Bureau record, that Ministry of Finance had notified a scheme of exemption for the District of Kutch, in the State of Gujarat for a period of five years from the date of commencement of commercial production. The then State Government on 09.11.2001 also announced a Sales Tax incentive scheme, wherein it noted that the economic activity in the Kutch district has come to a standstill on account of the devastating earthquake and that new employment opportunities could be created if new investments take place. Taking note of the Excise Duty exemption for the new industries announced by the Government of India, the State Government also introduced a Sales Tax incentive scheme which would be available to only those industries which were eligible for the Excise incentive; 9.1.4 Respondents-original writ petitioners were extended the benefit of exemption promised by the Governme....
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....e 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 620, State of Punjab v. Nestle India (2004) 6 SCC 465, MRF Ltd. Kottayam v. Assistant Commissioner of Sales Tax (2006) 6 SCC 702, Southern Petrochemical Industries Co. Ltd. v. ETIO (2007) 5 SCC 447; 9.2.5 It is submitted therefore that the High Court has correctly applied the settled Doctrine of Promissory Estoppel by examining whether the facts and the circumstances leading to the curtailment of incentive were indeed in public interest or not so as to justify a midway withdrawal of the incentive; 9.3 That in fact the incentive promised under the original notification No. 39/2001 was not dependent upon the extent of value addition. It is submitted that this concept was introduced only by the impugned notification No. 16 of 2008; 9.4 Exemption was granted by way of refund to the duty paid in cash/PLA. The payment from PLA is not necessarily duty on value addition. The proposition that the payment from PLA represents such value addition may hold good only....
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....on 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 set aside by the High Court being notification No. 16 of 2008 dated 27.03.2008 can be said to be clarificatory in nature and can it be said that it takes away the vested right conferred pursuant to the earlier notification of 2001 and whether the same can be made applicable retrospectively and whether the same has been issued in the public interest and whether the same is hit by the Doctrine of Promissory Estoppel? 11. While considering the aforesaid questions and before considering the nature of the subsequent notification of 2008, few decisions of this Court on retrospectivity/clarificatory/applicability of promissory estoppel in the fiscal statute are required to be referred to, which are as under: 11.1 In the case of Kasinka Trading (supra), in paragraphs 12, 20 and 23, it is observed and held as follows: "12. It has been settled by this Court that the doctrine of promissory estoppel is applicable against the Government also particularly where it is necessary to....
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....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 would be exempted from sales tax for a particular number of initial years but when the State sought to levy the sales tax it was held by this Court that it was precluded from doing so because of the categorical representation made by it to the petitioners through letters in writing, who had relied upon the same and set up the industry. 23. The appellants appear to be under the impression that even if, in the altered market conditions the continuance of the exemption may not have been justified, yet, Government was bound to continue it to give extra profit 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 Governm....
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....hed, 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 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. 11.3 In the case of Shree Durga Oil Mills (supra), it has been held that when the withdrawal of exemption is in public interest, the public interest must override any consideration of private loss or gain. In the said case, the change in policy and withdrawal of the exemption on the ground ....
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....cts 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 favour of the promisee and enforce the promise against the Government. Where public interest warrants, the principles of promissory estoppel cannot be invoked. The Government can change the policy in public interest. However, it is well settled that taking cue from this doctrine, the authority cannot be compelled to do something which is not allowed by law or prohibited by law. There is no promissory estoppel against the settled proposition of law. Doctrine of promissory estoppel cannot be invoked for enforcement of a promise made contrary to law, because none can be compelled to act against the statute. Thus, the Government or public authority cannot be compelled to make a provision which is contrary to law." Thus, as held by this Court, when the public interest warrants, the principles of promissory estoppel cannot be invoked. It is further held that 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 o....
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....atory 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 that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect. CASE LAW ON "INTERPRETATION OF FISCAL STATUTES" 13.5. In the case of R. K. Garg v. Union of India (1981) 4 SCC 675, this Court observed and held as follows: "8. xxx xxx xxx The Court must always remember that "legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry"; "that exact wisdom and nice adaption of remedy are not always possible" and that "judgment is largely a prophecy based on meagre and uninterpreted experience". Every legislation particularly in economic matters is essentially empiric and it is b....
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....in case of ambiguity. A person who claims exemption has to establish his case. 14. Applying the law laid down by this Court in the aforesaid decisions to the subsequent notifications/industrial policies which were the subject-matter before the High Court and for the reasons stated hereinbelow, we are of the opinion 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. 14.1 The main objective of the earlier respective notifications/industrial policies was to encourage the entrepreneurs to put new industries in the area so as to generate employment and for that an incentive was offered to get back by way of refund the excise duty paid either in cash or PLA, namely, the amount of duty paid by the manufacturer of goods oth....
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....ot actually manufactured, but are manufactured on paper, there shall be refund of excise duty which are manufactured on paper. Therefore, it can be said that the object of the subsequent notifications/industrial policies was the prevention of tax evasion. It can be said that by the subsequent notifications/industrial policies, they only rationalizes the quantum of exemption and proposing rate of refund on the total duty payable on the genuine manufactured goods. At the time when the earlier notifications were issued, the Government did not visualize that such a modus operandi would be followed by the unscrupulous manufacturers who indulge in different types of tax evasion tactics. It is only by experience and on analysis of cases detected the Excise Department the Government came to know about such tax evasion tactics being followed by the unscrupulous manufacturers which prompted the Government to come out with the subsequent notifications which, as observed hereinabove, was to clarify 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 manufacturer undertaking manufacturing activiti....
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.... 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. As observed and held hereinabove, the subsequent notifications/industrial policies which were impugned before the respective High Court can be said to be clarificatory in nature and the same have been issued in the larger public interest and in the interest of the Revenue, the same can be made applicable retrospectively, otherwise the object and purpose and the intention of the Government to provide excise duty exemption only in respect of genuine manufacturing activities carried out in the concerned areas shall be frustrated. As the subsequent notifications/industrial policies are "to explain" the earlier notifications/industrial policies, it would be without object unless construed retrospectively. The subsequent notifications impugned before ....