TaxTMI 
TaxTMI 
2022 (12) TMI 810
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....P(C) No. 6764/2019, WP(C) No. 113/2020, WP(C) No. 1838/2020, WP(C) No. 2558/2020, WP(C) No. 2573/2020, WP(C) No. 2582/2020, WP(C) No. 2590/2020; Mr. R. Dubey, learned counsel for the petitioners in WP(C) No. 5233/2019, WP(C) No. 9196/2019, WP(C) No. 9203/2019; Ms. N Hawelia, learned counsel for the petitioners in WP(C) No. 4355/2020, WP(C) No. 4532/2020, WP(C) No. 4591/2020. Also heard Mr. S.C. Keyal, learned Standing Counsel, GST appears for all the respondents. 2. All these petitions have raised common issues and question. As such all these Writ Petitions are taken up for hearing and disposal together. Dr. A. Saraf, learned Senior Counsel leads the arguments on behalf of the petitioners. Mr. S.C. Keyal, learned Standing Counsel appears on behalf of the respondents in all the writ petitions. 3. The Petitioner in W.P(C) No. 2208/2019 is a company incorporated under the provisions of the Companies Act, 1956 having its office situated at Mayur Garden, 2nd Floor, Opp. Rajiv Bhawan, G.S. Road, Guwahati 781005, Assam and having a factory at Gopinath Bordoloi Road, Chamta Pathar, Sonapur, Guwahati, Assam. The petitioner is engaged in the business of production/ manufacture and sale & s....
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....ndustrial Unit located at East Banipur, Dhekri Gaon, Lahoal, Dibrugarh, Assam and its principal place of business at 1st Floor, Jain Enterprise Building, H.S. Road, Dibrugrah, Assam . The petitioner is engaged in the business of Manufacture of packaged drinking water. 11. The petitioner in W.P.(C) No. 2582/2020 is a Partnership firm registered under the Indian Partnership Act, 1932 having its registered office at Jail Road, Fancy Bazar, Guwahati-781001 and its factory situated at National Board Complex, Near Panikhaity Circle Office, Panikhaity, Guwahati-781023 in the district of Kamrup. 12. The petitioner in W.P(C) No. 2590/2020 is a registered partnership firm having its principal place of business at 1st Floor, Jain Enterprise Building, H.S. Road, Dibrugarh, Assam. The petitioner is engaged in the business of manufacture of billets. 13 The petitioner in W.P.(C) No. 9203/2019 is a Private Limited Company incorporated under the provision of the Companies Act, 1956 and having its registered office at Palashbari, NH-31C, P.O. Kajalgaon, District- Chirang (BTAD) , Assam-783385. The petitioner is engaged in the manufacture of excisable goods, namely Clacined Petroleum Cook (CPC). ....
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....f Kamrup(R). The petitioner is engaged in the business of manufacturing of ink, solvent & cleaning solutions, ink roll, filter kits etc. 20. The petitioner in W.P(C) No. 4350/2019 is a private limited company incorporated under the provisions of the Companies Act, 1956 and having its office situated at Pub-Boragaon, P.O. Garchuk, Guwahati- 781035, Assam. The petitioner is engaged in the business of manufacture and sale of multilayer plastic laminated tubes and caps. The petitioner was earlier registered under the provisions of Central Excise Act & Rules as well as under the Assam VAT Act, 2003 and the Central Sales Tax Act, 1956. 21. The petitioner in W.P(C) No. 3606/2019 is a Private Limited Company incorporated under the provisions of the Companies Act, 1956 having its registered office at 55B, Mirza Ghalib Street, Kolkata-700016 and its industrial unit at Village: Kukurmari, P.O. Dhaligaon in the district of Chirang, BTAD, Assam. The petitioner is engaged in the business of manufacturing of Calcined Petroleum Coke. 22. The petitioner in W.P(C) No. 3601/2019 is a company incorporated under the provisions of the Companies Act, 1956 and having its registered office at Noonmati, ....
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....dustry, Department of Industrial Policy & Promotion framing a scheme of budgetary support under the Goods & Service Tax regime for the units located in the States of Jammu & Kashmir, Uttarakhand, Himachal Pradesh and North East including Sikkim providing for budgetary support to the eligible unit for the residual period by way of reimbursement of Goods & Service Tax paid by the unit limited to the Central Government's share of CGST and/or IGST retained after deduction of a part of their taxes to the States in so far as the same curtails the benefit as promised under NEIIPP, 2007 and Notification No. 20/2007. The said Budgetary Scheme has been challenged to be violative of the Doctrine of Promissory Estoppel and Legitimate Expectation. The said Notification dated 05.10.2017 has also been challenged on the ground that the same is contrary to the promises made under, NEIIPP, 2007. 29. The Government of India by a notification dated 24th December, 1997 was pleased to announce a new Industrial Policy Resolutions (herein after referred to as 'IPR' containing a package of incentives and concessions for the entire North Eastern Region. The said IPR, amongst others, declared all industrial....
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....th day of December but which undertook substantial expansion by way of increase in the installed capacity by not less than 25% on or after the 24 day of December, 1997. The exemption contained in the said notifications in terms of para 4 of the Notification was made applicable to any of the above stated Industrial Unit for a period not exceeding 10 years from the date of publication of the Notification in the official Gazette or from the date commencement of commercial production, which ever was later. 31. The Government of India, thereafter, on 1.4.2007 announced a new Policy namely the North East Industrial and Investment Promotion Policy (NEIIPP), 2007. Vide the said Policy, the Government of India has also approved a package of fiscal concessions and other concessions for North East Region. In the said NEIIPP, 2007, on the issue of the excise duty exemption under Clause (v) it was clearly noted that "hundred percent excise duty exemption will be continued on finished products made in the North Eastern Region, as was available in NEIP, 1997. In terms of the North East Industrial and Investment Promotion Policy (NEIIPP), 2007 the Government of India, Ministry of Finance (Departm....
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....y the fact that it will get the benefits of exemption as contemplated under the Policy of 2007 including 100% Excise Duty Exemption. The Petitioner further states that the product manufactured by the industrial unit of the Petitioner did not fall in the Negative List under Clause (x) of the Policy nor it is covered by Clause 7 of the Notification No. 20/2007-CE dated 25.04.2007 and was therefore entitled for the benefits of incentives under the said NEIIPP, 2007 and Notification No. 20/2007-CE dated 25.04.2007. According to the petitioner company, it was eligible for the exemption granted under the Notification No. 20/2007-CE in as much as the same has been accepted by the Central excise authorities which is reflected in the order No. R- 1930/ACG/2013-14 dated 21.02.2014 passed by the Assistant Commissioner of Central Excise, Guwahati, Assam. 33. The Government of India, Ministry of Finance (Department of Revenue) vide Notification No. 20/2008-CE dated 27.3.2008 amended the Central Excise Notification No. 20/2007-CE dated 25.04.2007. Vide the said Notification the excise duty refund was restricted to a maximum limit as specified in the rate column of the Table appended to the said....
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....luding Notification No. 20/2007-CE dated 25.04.2007 applicable to new industrial units set up in the States of Assam or Tripura or Meghalaya or Mizoram or Manipur or Nagaland or Arunachal Pradesh or Sikkim were rescinded. Due to rescinding of the said Notification, the benefits of incentives against investment granted to the Petitioner ceased to continue with effect from 01.07.2017 in terms of the Proviso to Section 174(2)(c) of CGST Act. The direct and immediate effect of rescinding of the said Notification was that the promised exemption was curtailed to the new industrial units for the residual period of their eligibility for such exemption. 36. In continuation of the earlier industrial policies as well as the Central Excise Notifications granting exemption on the levy of central excise duty, Ministry of Commerce and Industry (Department of Industrial Policy and Promotion) vide Notification dated 05.10.2017 framed a Scheme of budgetary support under the GST Regime to the units located in States of Jammu and Kashmir, Uttarakhand, Himachal Pradesh and North East including Sikkim. The said Scheme was in pursuance to the decision of the Government of India to provide budgetary sup....
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....turing units operating in the States of Jammu and Kashmir, Uttarakhand, Himachal Pradesh and North East including Sikkim under different Industrial Promotion Schemes of the Government of India, for a residual period for which each of the units were eligible but the same was limited to sum total of (i) 58% of the Central tax paid through debit in the cash ledger account maintained by the unit in terms of sub-section(1) of section 49 the Central Goods and Services Act, 2017 after utilization of the Input tax credit of the Central Tax and Integrated Tax. (ii) 29% of the integrated tax paid through debit in the cash ledger account maintained by the unit in terms of section 20 of the Integrated Goods and Services Act, 2017 after utilization of the Input tax credit Tax of the Central Tax and Integrated Tax. According to the petitioners, the said Scheme of Budgetary Support had therefore, curtailed the benefits of full exemption which were promised in the Industrial Policy and Notification No. 20/2007. 39. On these facts, the petitioner assailed the inaction of the Central Government towards they were promised made in terms of the NEIIPP, 2007 by way of the present writ petitions. Accord....
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....sile from promise made in the face of the alteration of position by the petitioners relying on the policies made under the Industrial Policy and more particularly when the Industrial Policy is still in force. The Industrial Policy clearly outlines the benefits that will accrue to an Industry like the petitioners, who fulfill the criteria and such benefits inter alia includes 100% exemptions from Central Excise Duty pay. Under such circumstances, it is strenuously urged that the Government cannot be permitted to play with the future of the industries by resiling from the promised made under the Industrial Policy and by budgetary support to the extent of 58% of Central Excise Duty pay. The petitioners unit's are located in an area which are declared to be tax free zone under the Industrial Policy which is still subsisting and therefore, the petitioner company is entitled to complete exemption from payment of Central Excise Duty for a period of 10 years from the date of commencement of production after undertaking substantial exemption as promised in the NEIIPP, 2007. It is urged that such curtailment of the benefits in the face of the clear promise handed out under the NEIIPP, 2007 i....
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....t it would be inequitable to allow the promisor to go back on the promise. 45. It is contended that the Apex Court further observed that that the doctrine was not limited only to cases where there was some contractual relationship or other pre-existing legal relationship between the parties. The principle would be applied even when the promise is intended to create legal relations or affect a legal relationship which would arise in future. The Government was held to be equally susceptible to the operation of the doctrine in whatever area or field the promise is made contractual, administrative or statutory. The learned Senior counsel for the petitioner in support of his contentions has referred to para 8 and 24 of the Judgment which is extracted below: "[E]quity will, in a given case where justice and fairness demand, prevent a person from insisting on strict legal rights, even where they arise, not under any contract, but on his own title deeds or under statute." "The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, a....
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....sult in an agreement enforceable at law, if the statute requires that the agreement shall be in a certain form, no contract may result from the representation and acting thereupon but the law is not powerless to raise in appropriate Cases an equity against him to compel performance of the obligation arising out of his representation." 48. The Doctrine of Promissory Estoppel has been repeatedly applied by the Apex Court in statutory notifications. In Pournami Oil Mills v. State of Kerala [1986 Supp SCC 728 : 1987 SCC (Tax) 134] the Government of Kerala by an order dated 11-4-1979 invited small-scale units to set up their industries in the State of Kerala and with a view to boost industrialisation, exemption from sales tax and purchase tax was extended as a concession 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 in the 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 i....
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....was followed by a three-Judge Bench in State of Bihar v. Usha Martin Industries Ltd. [1987 Supp SCC 710 : 1988 SCC (Tax) 116] where it was stated that the matter stands concluded by the decision in Pournami Oil Mills case. In Shri Bakul Oil Industries v. State of Gujarat [(1987) 1 SCC 31 : 1987 SCC (Tax) 74: AIR 1987 SC 142] it was observed in para 11 as under "The exemption granted by the Government, as already stated, was only by way of concession for encouraging entrepreneurs to start industries in rural and undeveloped areas and as such it was always open to the State Government to withdraw or revoke the concession. We must, however, observe that the power of revocation or withdrawal would be subject to one limitation viz. the power cannot be exercised in violation of the rule of promissory estoppel. In other words, the Government can withdraw an exemption granted by it earlier if such withdrawal could be done without offending the rule of promissory estoppel and depriving an industry entitled to claim 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 indu....
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....y benefit so that they could effectively compete with the old industries operating in the field and their products could effectively compete with their products. On these well-established facts the Board can certainly be pinned down to its promise on the doctrine of promissory estoppel." 49. In Mahabir Vegetable Oils (P) Ltd.v. State of Haryana, (2006) 3 SCC 620, the Apex Court observed that "it is beyond any cavil that the doctrine of promissory estoppels operates even in the legislative field". This was in connection with a statutory notification under the Haryana General Sales Tax Act. 50. A survey of the earlier decisions has also been made by the Apex Court in State of Punjab v. Nestle India Ltd., (2004) 6 SCC 465, wherein the law has been stated in the following terms: "25. In other words, promissory estoppel long recognised as a legitimate defence in equity was held to found a cause of action against the Government, even when, and this needs to be emphasised, the representation sought to be enforced was legally invalid in the sense that it was made in a manner which was not in conformity with the procedure prescribed by statute." Referring to its judgment in Motilal Pad....
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....mption. Therefore, an exemption notification can be revoked without falling foul of the principle of promissory estoppel. It would not, in the circumstances, be necessary for the Government to establish an overriding equity in its favour to defeat the petitioner's plea of promissory estoppel. The Court also held that the Government of India had justified the withdrawal of exemption notification on relevant reasons in the public interest. Incidentally, the Court also noticed the lack of established prejudice to the promises when it said: 'The burden of customs duty, etc. is passed on to the consumer and therefore the question of the appellants being put to a huge loss is not understandable". 52. In MRF Ltd. v. Asstt. CST, (2006) 8 SCC 702, the judgment in Kasinka Trading (Supra) was also held to be inapplicable. In the said judgment, it was held that the doctrine of promissory estoppel will also apply to statutory notifications. 53. The law relating to promissory estoppel was again reiterated and crystallised by the Apex Court in its latest judgment, State of Jharkhand vs. Brahmaputra Metallics Ltd., Civil Appeal No. 3860- 3862 of 2020. 54. The petitioners contend that the ....
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....t exists in the present case for curtailing the benefits. The fact that curtailment of the extent of benefits for the residual period would he hit by the doctrine of promissory estoppel was also recognized during the GST Council Meetings. 57. The learned Senior counsel for the petitioners contend that even after admitting the legal and factual position that the promise of offering incentive was unequivocal and any deviation from the same would be hit by the settled principles of promissory estoppel, the GST Council in its meeting on 30" Sept 2016 decided the matter against the settled legal position. As already stated, under the existing laws the tax exemption was granted upfront and the assessee was not supposed to pay the taxes. The basic principle has not been altered under the GST regime also. Materially it does not reckon any change in overall tax collection since as per the promise by the Notification No. 20/2007-CE dated 25.04.2007 no taxes were liable to be paid; and this ought to be continued in GST in respect of the eligible units, if not by way of direct exemption then through reimbursement mechanism. 58. The learned Senior counsel for the petitioners contend that Arti....
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....ent on the Centre to adjust the collection of taxes after factoring the entire obligation it has held out under the earlier regime. On the contrary the Central Government is purporting to leverage or work out a situation out of nowhere simply to frustrate the benefits promised to the petitioner as also similarity placed industries on the plea that as a matter of goodwill it is extending refund of entire taxes collected by it and it is upto the States to consider the balance 42%. Without prejudice to the legal position that such portion of taxes which at the outset is liable to be refunded and cannot form a part of the net proceeds, the purported devolution to State cannot be at the cost or expense, prejudice or detriment to the petitioner. It is further submitted that during the pre GST regime when there was complete exemption by virtue of Notification issued under Section 5A of the Central Excise Act, 1944, the said amount of exemption granted by way of refund was not taken in the total proceeds central excise duty and thereby the same did not form part of net proceeds for the Purpose of devolution of the amount of net proceeds of central excise to the State under Article 270 of t....
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....been violated by the GST Council by curtailing the extent of benefits from 100% earlier allowable to only 58%. 61. The learned Senior counsel for the petitioners submits that under the pre-GST regime, Central Excise Duty was being levied by the Parliament under the Central Excise Act, 1944 in terms of Entry 94 of List-I of the Constitution. Even under the GST regime, and after the amendments made to the Constitution by the Constitution (101st Amendment) Act, 2016 both CGST as well as IGST under CGST Act and IGST Act have been levied by the Centre. Article 246A as inserted by the Constitution (101st Amendment) Act is out below: "246A. Special provision with respect to goods and services tax. - (1) Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause (2), the Legislature Of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State. (2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-State trade or commerce. Explanation. - The provisions of this article, shall,....
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....y Ministry of Finance dated 27.11.2017 is not at par with the notification dated 27.11.2017 issued by the Department of Industrial Policy & Promotion and portal of GSTIN which has fed to lower budgetary support to the petitioner company which is most illegal and arbitrary and not tenable in law. 64. The learned senior counsel for the petitioners submits that with the introduction of GST, Section 174(1) of the CGST Act, 2017 repealed the Central Excise Act, 1944 (except in respect of goods included in Entry-84 of List I of the Seventh Schedule of the Constitution of India) w.e.f. 01.07.2017. However, Section 174(2)(c) of the CGST Act, 2017 clearly provides that any right, privilege, obligation or liability acquired or incurred under the repealed Act, shall not be effected although the proviso to Section 174 (1)(c) provides that any tax exemption granted as an incentive against investment through a notification shall not continue as privilege if the said notification is rescinded on or after the appointed day. Since the petitioner on undertaking the substantial expansion/modernization on the existing industrial unit on the basis of the promises made in the NEIIPP, 2007 and the Notif....
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....e doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non-arbitrariness enshrined under Article 14 finds concrete expression. 67. In support of his contentions he has pressed into service the following Judgment of the Apex Court: In Union of India vs Lt. Col. P.K. Choudhary, (2016) 4 SCC 236, the Court observed as under: "This Court went on to hold that if denial of legitimate expectation in a given case amounts to denial of a right that is guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or in violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 of the Constitution but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles." As regards the relationship between Article 14 and the doctrine of legitimate expectation, a three judge Bench in Food Corporation of India vs Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71 held thus: "7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution ....
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....n NOIDA Entrepreneurs Assn. vs NOIDA, (2011) 6 SCC 508, a two-judge bench of this Court, speaking through Justice B. S. Chauhan, elaborated on this relationship in the following terms: "39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law. ...... 41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercise....
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....powers under section 11 of the CGST Act. However, there is no dispute that the said Scheme of Budgetary Support has been framed to give effect to the promises made in the NEIIPP, 2007. It is respectfully submitted that even though the said Scheme has not been framed in exercise of powers under section 11 of the CGST Act, 2017, but framing of the said Scheme can be traced to section 11 of the CGST Act and can be said to have been framed under section 11 of the CGST Act. The learned Senior counsel has strenuously urged that in this connection the petitioner relies on the judgment of the Apex Court in Assistant Commissioner of Commercial Taxes (Asst.), Dharwar and Ors. vs. Dharmendra Trading Company and Ors., (1988) 3 SCC 570, wherein a contention was advanced that concession granted by the State were of no legal effect as there is no statutory provision under which such concessions could be granted. By the said order, it was contended that there was no provision under the Sales Tax Act under which a refund could be allowed on the total sales tax paid by a new industrial unit. The Apex Court rejected the aforesaid contention by holding that the mere fact that the order did not specif....
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....d counsel has relied upon the Judgment of the Apex Court in State of Jharkhand vs. Tata Cummins Ltd., reported in (2006) 4 SCC 57 held hat when an assessee is promised with a tax exemption for setting up an industry in the backward area as a term of the industrial policy, we have to read the implementing notifications in the context of the industrial policy. In such a case, the exemption notifications have to be read liberally keeping in mind the objects envisaged by the industrial policy and not in a strict sense as in the case of exemptions from tax liability under the taxing statute. He also relies upon the Judgment of the Apex Court in State of Bihar vs. Suprabhat Steel Ltd. reported in (1999) 1 SCC 31, the Apex Court while examining a notification issued to give effect to the Industrial and Incentive Policy held that the said notification was issued to carry out the objective and the policy decisions taken in the industrial policy itself and thereby any notification issued by a government order, if found to be repugnant to the industrial policy declared in government resolution, then the Said notification must be held to be bad to that extent. 71. The learned senior counsel ....
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....arned counsels for the petitioners disputing their contentions he submits that before 2017, the taxation system included the central taxes which included the custom duty/central excise duty, central sales tax on commodities and services, surcharge and cusses. The sales taxes included VAT, WCT etc. Under this old taxation system the Government of India announced a package of fiscal incentives and other concessions for the "North Eastern Region" namely North East Industrial and Investment Promotion Policy (NEEIIPP) 2007 w.e.f. 01/04/2007 which provided the Central Excise Duty exemption for 10 years as well as 100% Income tax exemption for 10 years. The previous tax structure has been replaced by GST and a number of changes have taken place as a result. The Goods and Service tax (GST) is an indirect tax, came into effect from 1% July 2017. Under the GST, all Central and Single tax will be levied on all commodities and services, apart from motor spirit, petroleum, natural gas and diesel. The GST council further explained that the Central and State Government had already given various incentives of VAT and CST under the old taxation system and any such incentives could not be continued ....
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....owever, keeping in view the likely hardship faced by industrial units that were already availing excise duty exemptions, under the new Scheme, budgetary support is sought to be provided to these units. ii. Mr. Keyal, learned standing counsel further submits that it must be noted that while considering the applicability of the doctrine of promissory estoppel, the Courts have to do equity and the fundamental principles of equity must forever be present to the mind of the Court, while considering the applicability of the doctrine. It is further held that the doctrine must yield when the equity so demands if 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. 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 observed that the withdrawal of exemption "in public interest" is a matter of policy and the courts would not bi....
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....oner has not been singled out for any adverse treatment. The Scheme notified by the DPIIT is applicable to all industries units located in the State of Assam meeting a common criterion. vi. It is submitted that the plea of promissory estoppel cannot be enforced against an act done in accordance with the statutory provisions of law. under Section 174(2)(c) of the CGST Act, express provision has been made by the Parliament to provide that any tax exemption granted as an incentive against investment through a notification under, inter alia, the erstwhile Central Excise Act, shall not continue as a privilege if the said notification is rescinded and in the present case, the notification was, in fact, rescinded. Thus, in the absence of any challenge by the petitioner to the rescission of the said notification which granted exemption or to the vires of the proviso to Section 174(2)(c) of the CGST Act, no plea of promissory estoppel is maintainable. The language used in the proviso to Section 174(2)(c) is clear and unequivocal, and leaves no room for a different interpretation. vii. It is submitted that the scheme of Budgetary Support under GST regime introduced vide the Government of....
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....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. 76. Mr. Keyal, learned standing counsel by referring to the Judgment of Shrijee Sales Corp Vs. Union of India reported in (1997) 3 SCC 398, 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 ....
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....t, express provision has been made by the Parliament to provide that any tax exemption granted as an incentive against investment through a notification under, inter alia, the erstwhile Central Excise Act, shall not continue as a privilege if the said notification is rescinded, and in the present case, the notification was, in fact, rescinded. Thus, in the absence of any challenge by the Petitioner to the rescission of the said notification which granted exemption or to the vires of the proviso to Section 174(2) (c) of the CGST Act, no plea of promissory estoppel is maintainable. The language used in the proviso to Section 174(2)(c) is clear and unequivocal, and leaves no room for a different interpretation. (Para 35 of Hero Motocorp: vs. Union of India) 81. Subsequently, Dr. Saraf, learned senior counsel leading the arguments for the petitioners sought leave of this Court to make further submission on issues which he feels are relevant for the purposes of the present proceedings. 82. Mr. Keyal, learned standing counsel, GST, did not object to the submissions made requesting for making additional submissions but however he prays that he also be permitted a liberty to reply to suc....
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....measure of goodwill to fulfill the promise, only to units which were eligible for drawing benefits under the earlier excise duty exemption schemes, but otherwise had no relation to erstwhile scheme. (6) That the action taken by the Respondents is flowing from the Constitutional amendment and law passed by the competent Legislatures, and there cannot be any estoppel. No entity has the right to claim that it may be subjected to the same treatment and be entitled to the same tax related benefits forever. A tax cannot be mandated to continue merely because some entity is enjoying exemption from the tax. Changes in tax law, schemes, regulations, orders affecting taxes and subsidies are matters of the Government policy and statues are liable to change without any legal right to recompense as there is no estoppels against the changes in the statute or policy. (7) That notwithstanding, discontinuation of Central Excise Duty and consequent rendering of Central Excise exemptions nugatory, there is no violation of Article 14 of the Constitution of India because the Petitioner has not been singled out for any adverse treatment. The Scheme notified by the DPIIT is applicable to all industri....
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....y 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. (14) That the doctrine of promissory estoppel 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 promise must establish that he suffered in detriment or altered his position by reliance on the promise. 85. It is submitted by the learned Senior counsel for the petitioner that Since the Respondents have contended that the doctrine of promissory estoppel cannot be made applicable in the instant case for various reasons, it has become necessary to make additional submit submissions in that regard on behalf of the Petitioners. He also sought leave of this Court to file such additional Written....
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.... shows that if the conditions precedent for application of the doctrine exist, the court may compel the Government to act in terms of its promises by forcing it to act in accordance with law, that it to say, if the law permits or does not prohibit act of granting of exemption or if the law does not prohibit the Government from acting upon the representation that it had made, Court can force the Government to act in terms of its promises by bringing, if necessary, to act in accord with law. For instance, if, for granting of exemption a Notification under the relevant statute is required to be published and if the Government has declared its Industrial Policy promising to grant exemption if particular type of industry is set up at a particular place, it will be no defence for the Government to say that so long as no requisite Notification is brought out under the relevant statute, the promise made by the Government is not enforceable against it, for, the law is not powerless and will force the Government to bring out a Notification in tune with its Industrial Policy if the person affected has, acting upon the representations made by the Government, set up the industry at the specifie....
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....promise knowing or intending that it would be acted on by the promisee and, in fact, the promise, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a format contract as required by article 299 of the Constitution. It is elementary that in a republic governed by the rule of law, no one, howsoever high or low, is above the law. Everyone is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned: the former is equally bound as the latter, it is indeed difficult to see on what principle can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel. 93. It is further submitted that the Apex Court in Motilal Padmapat Sugar Mills Co. Ltd., (Supra) further held that if the Government ....
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....h, when a statute prohibits or bars enforcement of the representation made by the Government, the Court would not enforce the representation against the Government, for, the Government cannot be compelled, to act contrary to the statute. Logically, therefore, when the statute contains provisions enabling the Government to grant exemption from payment of sales tax, the Court can in an appropriate case, force the Government to act in terms of its representation and it would be no defence for the Government to say that necessary notification, in terms of the taxing statute has not been brought out or published, for the Government, in such a case, can be bound by its promise to exempt person(s) from payment of sales tax. 96. Reliance is also placed on Pournami Oil Mills & ors. Vs. State of Kerala & Anr., reported in 1986 (Supp) SCC 728, wherein the Apex Court held that when the Government make an announcement promising to grant exemption from sales tax if specified industries are set up at specified place(s) within a specified date without, however, bringing out corresponding notification granting exemption in terms of the relevant statute, the notification, which makes no reference t....
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....e aforesaid decisions of the Apex Court is that if the representation made by the Government is not barred under any law or if the same is not against larger public interest, the Government will be bound by the representation that, it has made and if a person, acting on the representations made by the Government, has altered his position to his detriment in such a case, it will be no defence for the Government to say that no notification, in terms of the relevant salute, having been brought out to give effect to the representations made by the Government, the Government is not bound by the promise. In fact, in a case of present nature, promissory estoppel will come into operation and the court can force the Government to carry out the representations that it had made. Any notification, issued under the relevant statute, which runs contrary to the Government's representation, may be interfered with. Mere claim by the Government that larger public interest permit the Government not to abide by its representation will not be enough to free the Government from the commitments that it had made, for, the Government cannot, be the judge of its own cause and the Government would have t....
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.... the respondents. 103. The learned Senior counsel for the petitioners submits that though reliance has been placed on by the respondents in the decision of the Apex Court in Kaniska Trading Vs. Union of India, reported in (1995) 1 SCC 274 and in Shrijee Sales Corporation Vs. Union of India, reported in (1997) 3 SCC 398, however, it is respectfully submitted that the aforesaid two decisions of the Apex Court were considered by the Apex Court in the case of Pawan Alloys Casting (P) Ltd. Vs. U.P. State Electricity Board, reported in (1997) 7 SCC 251, and the Court held that the notifications, impugned therein, where not designed or issued to induce the appellants to import PVC resin and, strictly speaking, therefore, the notifications could not have been said to have extended any 'representation', much less a 'promise', to anyone enabling him to invoke the doctrine of promissory estoppels against the State. In the light of the decision in Pawan Alloys & Casting (P.) Ltd., (Supra), the decision in Kaniska Trading, (Supra) proceeded on the basis that by issuing the earlier notification under Section 25 of the Customs Act no promise had been held out to any of the importers that the not....
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....pportunity to the promisee to resume his original position; but if it is impossible for the promisee to resume his original position or restore status quo ante, the promise would become final and irrevocable. To put it differently, the Government can, even in the absence of supervening public interest, resile from its promise until such a stage is reached, when the promise becomes irrevocable due to the fact that the promisee cannot resume his original position or that the status quo ante cannot be restored. 107. It is contended by Dr. Saraf that the aforesaid two decisions in Kasinka Trading & Anr (Supra) and Shrijee Salex Corporation (Supra) were distinguished by the Apex Court. In paragraph 26 of the Judgment of Manuelsons Hotels Private Limited (Supra) wherein the Apex Court held as under. "in that case a new Industrial Policy dated 30.4.1990 was declared by the State Government assuring the grant of 33.33o/o hill development rebate on the total amount of electricity bills to new entrepreneurs for a period of 5 years. This period was extended by another period of 5 years to be made available to new industrial units set up till 31.3.1997. Vide Notifications dated 18.6.1998 an....
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....veer Oil Industries & Anr, reported in (1999) 4 SCC 857 relied on by the Respondents submits that it is distinguishable on facts. In the said case, the Sales Tax Incentive Scheme for Industries, 1987 was notified by the Rajasthan Government under Section 4(2) of the Rajasthan Sales Tax Act exempting subject to certain condition, now industrial units from tax under the State Act as well as under the Central Act on sale of goods manufactured by them for sale within the State for specified period. Oil extraction and manufacturing was one of the industries eligible for the benefit of the Scheme. During the currency of the Scheme, the Government vide Notification dated 07.05.1990 included the oil extraction and manufacturing industry in Annexure - B to the Scheme and thereby rendering the said industry ineligible for the benefit of the Scheme. On the said facts, the Apex Court found that the Scheme had failed to achieve its object and had rather adversely affected the oil industry and under that circumstances, the Notification dated 07.05.1990 was held to be in public interest and thereby the Apex Court held that the doctrine of promissory estoppel could not preclude the Government from....
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....e permitted to be carried on by the unincorporated bodies. The question of restricting such financial activity by unincorporated bodies, is a question of economic policy as it involves regulation of economic activities by different constituents. In such matters of economic policy, the Supreme Court does not interfere with the decision of the expert bodies which have examined the matter." 113. As such, it is contended that the observations made by the Apex Court in Bhavesh D. Parish (Supra) were altogether in different context. In the present case, the Industrial Policy of 2007 has not been amended and is still continuing and as such it cannot be said that there was any change of the policy decision of the Government as reflected in the Industrial Policy, 2007. The Petitioner, in fact, is praying in the present writ petitions that the promises made in the Industrial Policy, 2007 should be honoured and the Union cannot resile from the promises made in the said Industrial Policy,2007. As such, the decision of the Apex Court in Bhavesh D. Parish (Supra) relied on by the Respondents does not help the case of the Respondents. 114. It is submitted by the learned senior counsel for the p....
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.... uniform tariffs of electricity were introduced by which the rebate so given was reduced to 17%. Post 2000, vide a Notification dated 7.8.2000, a new tariff was announced which completely withdrew the hill development rebate. A challenge to the aforesaid notifications was turned down by the Apex Court. The Apex Court was concerned with an earlier decision in U.P. Power Corpn. Ltd. Vs. Sant Steels and Alloys (P) Ltd. (2008) 2 SCC 777, which took a very restrictive view of Section 49 of the Electricity (Supply) Act of 1948, stating that any notification issued thereunder can only be revoked or modified if express provision was made for such revocation under Section 49 itself. Further, such revocation could take place under the General Clauses Act only if such withdrawal was in larger public interest, or if legislation was enacted by the legislature authorizing the Government to withdraw the benefit granted by the notification. The larger Bench overruled Sant Steels Case (Supra) stating that its view of Section 49 of the Electricity Supply Act was plainly incorrect, and that Sections 14 and 21 of the General Clauses Act made it clear that a notification issued under Section 49 could b....
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....t is strenuously urged by the learned senior counsel for the petitioners that the aforesaid anomalies were noticed by the Apex Court in Manuelsons Hotels Private Limited Vs. State of Kerala and Others, reported in (2016) 6 SCC 766 and the Apex Court in the said case at paragraph 31 held as under: "It is clear, therefore that Shree Sidhbali Steels Ltd. was a case which was concerned only with whether a benefit given by a statutory notification can be withdrawn by the Government by another statutory notification in the public interest if circumstances change (see paras 30 and 42). Such is not the case before us. On the facts before us, a notification which ought to have been issued under Section 3-A after it was introduced pursuant to a promise made was not issued at all. And change in circumstances leading to overriding public interest displacing the doctrine of promissory estoppel is absent in the facts of the present case. We are thus, satisfied that the aforesaid judgment can have no application whatsoever to the fads of the present case." As such the decision of the Apex Court in Shree Sidhbali Steels Ltd, (Supra) is not applicable in the facts of the present case. 121. It i....
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....ior counsel for the petitioners contends that the decision relied on by the Respondents in Union of India and Anr. Vs. V.V.F. Limited and Ann, reported in (2020) SCC Online SC 378 also cannot be made applicable in the present case inasmuch as in paragraph 12 of the Judgment, the Apex Court held that the decision relied on by the Respondents' Industrial Units on promissory estoppel were not applicable because the subsequent notification curtailing the benefits of the excise exemption were clarificatory in nature and same did not take away the vested rights conferred under earlier notification. Paragraph 12 of the said Judgment is reproduced below:- "12. Now, so far as the decisions relied upon by the learned counsel appearing on behalf of the respective original writ petitioners-respondents herein are concerned, once it is held that the subsequent notifications/industrial policies impugned before the respective High Court are clarificatory in nature and it does not take away any vested rights conferred under the earlier notifications/industrial policies, none of the decisions relied upon shall be applicable to the facts of the case on hand." 124. The learned Senior counsel fo....
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....x Court. Mr. Keyal referring to Para 35 of the Judgment of Hero Motocorp(supra) submits that although he Judgment of the Delhi High Court is not binding but the same is referred to for persuading this Court to close the writ petitions by passing similar orders. 127. The learned counsels for the parties have been heard. The elaborate pleadings and case reference placed have been carefully perused. 128. From the pleadings, it is seen that the Government of India had by way of the NEIIPP, 2007 had granted incentives to various industries to set up and open their industrial units within the northeastern region. In order to bring about industrial progress in this region, several incentives were granted for such industries who in response to the Industrial Policy announced, will set up their industries and carry on the manufacturing of the various articles and items which are notified in the policy itself. The petitioners are some of such industries who have set up their industries and factories in response to the incentives granted by the Government of India through the NEIIPP, 2007. There are several requirements which are to be fulfilled by these industries in order to make themselv....
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....enial of the benefits under the NEIIPP, 2007 has caused severe financial losses to the petitioners industries. Such withdrawal of the promise midway without taking into consideration of the grievances of the petitioners is completely opposed to the doctrine of promissory estoppel as developed by catena of Judgments rendered by the Apex Court over the years. It is contended that the budgetary scheme which is presently enforced by the respondents is outside the purview of the GST Scheme of the Tax Structure. 129. Since the doctrine of the promissory estoppel has been very strenuously urged by the petitioners is necessary to refer to the same. In State of Jharkhand and Ors. Vs. Brahmputra Metallics Ltd., Ranchi and Anr, reported in 2020 SCC Online SC 968, the Apex Court has traced the origins and evolution of promissory estoppels. The relevant paragraphs are extracted below: "28. Before the High Court, the State of Jharkhand sought to sustain its action on the ground that though the follow-up notification under Section 9 was issued on 8 January 2015, no outer limit for the issuance of a notification was prescribed and there was no vested right on the part of the respondent to get t....
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....ises not to enforce contractual rights, but it also extends to certain other relationships. 4.088.....The doctrine can also apply where the relationship giving rise to rights and correlative duties is non-contractual : e.g. to prevent the enforcement of a liability imposed by statute on a company director for signing a bill of exchange on which the company's name is not correctly given; or to prevent a man from ejecting a woman, with whom he has been cohabitating, from the family home." 31. Chitty (supra) clarifies that the doctrine of promissory estoppel may be enforced even in the absence of a legal relationship. However, it is argued that this would be an incorrect application of the doctrine since it gives rise to new rights between the parties, when the intent of the doctrine is to restrict the enforcement of previously existing rights: "4.089. It has, indeed, been suggested that the doctrine can apply where, before the making of the promise or representation, there is no legal relationship giving rise to rights and duties between the parties, or where there is only a putative contract between them : e.g. where the promisee is induced to believe that a contract into ....
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....international frontiers to have the benefit of hindsight. 35. This Court has given an expansive interpretation to the doctrine of promissory estoppel in order to remedy the injustice being done to a party who has relied on a promise. In Motilal Padampat (supra), this Court viewed promissory estoppel as a principle in equity, which was not hampered by the doctrine of consideration as was the case under English Law. This Court, speaking through Justice P N Bhagwati (as he was then), held thus: "12....having regard to the general opprobrium to which the doctrine of consideration has been subjected by eminent jurists, we need not be unduly anxious to project this doctrine against assault or erosion nor allow it to dwarf or stultify the full development of the equity of promissory estoppel or inhibit or curtail its operational efficacy as a justice device for preventing injustice...We do not see any valid reason why promissory estoppel should not be allowed to found a cause of action where, in order to satisfy the equity, it is necessary to do so." H.4 From estoppel to expectations 36. Under English Law, the doctrine of promissory estoppel has developed parallel to the doctrine ....
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....re) Ltd., (1995) 2 All ER 714 (QB)]... Private law analogies from the field of estoppel are, we have seen, of limited relevance where a public law principle requires public officials to honour their undertakings and respect legal certainty, irrespective of whether the loss has been incurred by the individual concerned [Simon Atrill, 'The End of Estoppel in Public Law?' (2003) 62 Cambridge Law Journal 3]." (emphasis supplied) 38. Another difference between the doctrines of promissory estoppel and legitimate expectation under English Law is that the latter can constitute a cause of action23. The scope of the doctrine of legitimate expectation is wider than promissory estoppel because it not only takes into consideration a promise made by a public body but also official practice, as well. Further, under the doctrine of promissory estoppel, there may be a requirement to show a detriment suffered by a party due to the reliance placed on the promise. Although typically it is sufficient to show that the promisee has altered its position by placing reliance on the promise, the fact that no prejudice has been caused to the promisee may be relevant to hold that it would not be "inequitabl....
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....and 'promissory estoppel' are used interchangeably, but that is not a correct usage because 'legitimate expectation' is a concept much broader in scope than 'promissory estoppel'. ... A reading of the relevant Indian cases, however, exhibit some confusion of ideas. It seems that the judicial thinking has not as yet crystallised as regards the nature and scope of the doctrine. At times, it has been referred to as merely a procedural doctrine; at times, it has been treated interchangeably as promissory estoppel. However both these ideas are incorrect. As stated above, legitimate expectation is a substantive doctrine as well and has much broader scope than promissory estoppel. ... In Punjab Communications Ltd. v. Union of India, the Supreme Court has observed in relation to the doctrine of legitimate expectation: "the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way Reliance must have been placed on the said repres....
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....e, the administrative law adjudication of resilement of policies stands on a shaky public law foundation." 42. We shall therefore attempt to provide a cogent basis for the doctrine of legitimate expectation, which is not merely grounded on analogy with the doctrine of promissory estoppel. The need for this doctrine to have an independent existence was articulated by Justice Frankfurter of the United State Supreme Court in Vitarelli v. Seton28: "An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword." 131. The Apex Court proceeded to clarify the understanding of the doctrine of legitimate expectation as had been dealt with in the earlier Judgment of the Apex Court. Reference was made to the Judgment rendered in National Buildings Construction Corporation Vs. S Raghunathan,....
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....te. Public law can also take into account the hierarchy of individual rights which exist under the Human Rights Act 1998, so that, for example, the individual's right to a home is accorded a high degree of protection (see Coughlan's case, at pp 254-255) while ordinary property rights are in general far more limited by considerations of public interest : see R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389. 35 It is true that in early cases such as the Wells case [1967] 1 WLR 1000 and Lever Finance Ltd. v. Westminster (City) London Borough Council [1971] 1 Q.B. 222, Lord Denning MR used the language of estoppel in relation to planning law. At that time the public law concepts of abuse of power and legitimate expectation were very undeveloped and no doubt the analogy of estoppel seemed useful.....It seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet." (emphasis supplied) 133. In the Judgment of Brahmputra Metallic (Supra) reference was also ma....
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....ll. Its policies give rise to legitimate expectations that the state will act according to what it puts forth in the public realm. Apex Court held that in all its actions, the State is bound to act fairly, in a transparent manner and that this is an elementary requirement of the guarantee against arbitrary state action which Article 14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest. This conception of state power has been recognized by this Court in a consistent line of decisions. The relevant paragraphs of the said Judgments are extracted below: "52. The State having held out a solemn representation in the above terms, it would be manifestly unfair and arbitrary to deprive industrial units within the State of their legitimate entitlement. The State government did as a matter of fact, issue a statutory notification under Section 9 but by doing so prospectively with effect from 8 January 2015 it negated the nature of the representation which was held out in the Industrial Policy 2012. Absolutely no justification bearing on reasons of policy or public interest ha....
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....a notification within the stipulated time and by the grant of the exemption only prospectively, the expectation and trust in the State stood violated. Since the State has offered no justification for the delay in issuance of the notification, or provided reasons for it being in public interest, we hold that such a course of action by the State is arbitrary and is violative of Article 14." 137. In Hero Motorcorp Limited -Vs- Union of India ans Ors., the Delhi High Court was considering similar claims made by the petitioner therein in respect of the Industrial Policy accounted by the State of Uttrakhand. The petitioner, therein, based on the incentives issued under Industrial Policy by the State of Uttrakhand had set up its industries. The petitioners, therein, qualified for the exemptions under the said Industrial Policy of the State of Uttrakhand and thereafter continued to avail the benefits under the exemptions Notification till 01.07.2017. After the 101st amendment of Constitution of India whereby the GST was introduced, the petitioner therein migrated to new GST Regime and thereafter was required to pay GST and IGST under the provisions of the GST Tax Regime. By Notification N....
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....gainst investment through a notification shall not continue as privilege if the said notification is rescinded. 140. The Apex Court held that the claims of the appellants on estoppel is without merit deserves to be rejected. It was held by the Apex Court that even on the ground of change of policy, which is in public interest or in view of the change in the statutory regime itself on account of the GST Act being introduced as in the instant case, it will not be correct to hold the Union bound by the representation made by it, i.e. by the said O.M. of 2003 and it would be contrary to the statutory provisions as enacted under Section 174(2)(c) of the CGST Act. 141. The Apex Court further held that unless the appellants can show any statutory duty cast upon the respondent-Union of India to grant them 100% refund of writ of mandamus as sought for could not be issued. Undoubtedly, in the present case there is no duty cast on the Union to refund 100% CGST. The reliefs sought for by the appellants therefore, were declined. The relevant paragraphs of the said Judgments are extracted below:- "54. However, a common thread in all these judgments that could be noticed is that all these jud....
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....his respect could be placed on the judgments of this Court in the cases of Kasinka Trading and another vs. Union of India and another, Shrijee Sales Corpn. vs. Union of India, State of Rajasthan vs. Mahaveer Oil Industries, Shree Sidhbali Steels Ltd. vs. State of U.P. , and Director General of Foreign Trade vs. Kanak Exports 57. Recently, this Court, in the case of Unicorn Industries (supra), after surveying the earlier judgments of this Court on the issue has observed thus: "26. 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 period till which it is available, can be withdrawn by the State, if it is found that such a withdrawal is in the public interest. In such a case, the larger public interest would outweigh the individual interest, if any. In such a case, even the doctrine of promissory estoppel would not come to the rescue of the persons claiming exemptions and compel the State not to resile from its promise, if the act of the State is found to be in public interest to do so." 58. We are, therefore, of the considered view that even on the ground of change of policy....
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.... has failed to exercise the discretion vested in it or has exercised such a discretion malafidely or on an irrelevant consideration. 64. Undoubtedly, in the present case, there is no duty cast on the Union to refund 100% of CGST. As such, we find that the relief as sought cannot be granted." 142. However, the Apex Court held that though the appellants may not have a claim in law, they do have a legitimate expectations that their claims deserves due consideration. Accordingly, the appellants were permitted to make representations to the respective State High Courts as well as to the GST council. The State Governments and the GST council is required to consider such representation if the same are made in accordance with direction observations in the Judgment. The observation made in Paragraph 72 to 80 of the said judgment is extracted below: "72. This Court in the case of The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. (supra) had an occasion to consider when a writ of mandamus could be issued. This Court held that: "15. .....There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory ....
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....scretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion." 74. It could thus be seen that this Court holds that a writ of mandamus can be issued where the Authority has failed to exercise the discretion vested in it or has exercised such a discretion malafidely or on an irrelevant consideration. 75. This position was again reiterated by this Court recently in the case of Bharat Forge Ltd. (supra) as follows: "18. Therefore, it is clear that a Writ of Mandamus or a direction, in the nature of a Writ of Mandamus, is not to be withheld, in the ex....
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....by the Council of Ministers could deny the benefit of Notification to the entities which were entitled thereto. 79. Insofar as the judgment of this Court in the case of MRF Ltd., Kottayam (supra) is concerned, this Court, in the facts of the said case, specifically came to a finding that the decision to deprive MRF of the benefit of exemption for more than 5 years out of a total period of 7 years was highly arbitrary, unjust and unreasonable. In the case of Manuelsons Hotels Private Limited (supra), perusal of the impugned judgment therein would reveal that the provision on which Manuelsons Hotels Private Limited was claiming benefit under was deleted with effect from the 1st of March 1993. This Court, therefore, made it clear that the benefit would only be available during the period when the said statutory provision existed in the statute book, i.e., from 6th November 1990 to 1st March 1993. This Court, therefore, clearly rejected the claim of benefit from the date on which the statutory provision was deleted from the statute book. 80. In the case of Nestle India Ltd. (supra), the respondent milk producers did not pay the purchase tax for the period between 1st April 1996 and....