TaxTMI 
TaxTMI 
2023 (9) TMI 1653
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....er would continue to get the benefit in terms of the promise for grant of exemptions. Learned ASG assigned this appeal is reportedly sick. Learned counsel for the respondents has fairly brought to the notice a decision of the Supreme Court in case of Union of India & Ors. Vrs. Unicorn Industries, reported in (2019) 10 SCC 575 which squarely covers this issue against the respondents. He, however, clarified that the concerned parties are considering filing curative petitions before the Supreme Court. Presently, the decision of Supreme Court in case of Unicorn Industries (supra), covers the issue. This appeal, therefore, is allowed. The decision of the learned Single Judge is reversed. Appeal is disposed of accordingly." 2. Taking the chronology of events a bit further backwards it needs to be mentioned here that the petitioners had approached the Writ Court against the Notification No.11 of 2007-CE dated 1st March, 2007 as that had abrogated the benefits allowed to the petitioners under the Notification No.32/1999-CE and 33/1999-CE dated 8th July, 1999. It was the case of the petitioners that in furtherance of the Notification dated 8th July, 1999 they h....
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....pletely eclipsed by the notification under No.8/2004-CE dated 21.01.2004, Annexure-I to the writ petition? And (iii) Whether there is any misuse of process or public interest element justifying the withdrawal of benefits as granted by the NEIP, 1997 by virtue of the notification dated 01.03.2007, Annexure-L to the writ petition? [37] There cannot be any amount of dispute that by the notification under No. 69/2003-CE dated 25.08.2003 the Central Government had reintroduced in the public interest exemption of excisible goods of the description specified in the Column 3 of the table appended below the said notification and falling within the subheading mentioned therein of the First Schedule to the Central Excise Tariff Act, 1985 subject to the conditions as stated. There is no challenge by the petitioner against the said notification. Even Dr. Saraf, learned Senior Counsel appearing for the petitioner has clearly stated that the petitioners are not claiming any benefit which has been taken away by Section 154 of the Finance Act, 2003. As such it is abundantly clear that the relief as claimed by the petitioners are based on the notification dated 25.08.2003, Annexure....
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....inder the petitioners has simply stated that the contents of para No.27(xiv) are a matter of record and do not merit a response. The policy change would not absolve the government from its obligation under the doctrine of promissory estoppel. Whether without raising objection to the notification dated 25.04.2007 the petitioner would still be entitled to get the incentives or not? But the promise has been further extended by the NEIIPP 2007, vide the office memorandum dated 01.04.2007, by providing that "the industrial units which have commenced commercial production on or before 31.03.2007 will continue to get benefits /incentives under NEIP 1997." The notification dated 25.04.2007 has amended the notifications No.32/99-CE dated 08.07.1999 and 33/99-CE dated 08.07.2007. In the said notification dated 25.04.2007, by way of substitution, the following proviso has been added: "Provided that the exemption contained in this notification shall not be applicable to pan masala, falling under Chapter 21 of the said First Schedule, goods falling under Chapter 24 of the said First Schedule ; and plastic carry bags of less than 20 microns as specified by the Ministry ofEnvironment and....
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....certain restrictive conditions. The petitioners have not challenged the said notification dated 21.01.2004. As corollary thereof, this court is of the view that there had been no eclipse. However this court is constrained to note that while drawing up the writ petition, the petitioners acted casually by not seeking the reliefs in terms of the notification dated 21.1.2004. If it was a legal strategy to get the incentives without compliance of the conditions subsequently imposed by the notifications dated 21.01.2004 and 09.07.2004, the same must fail for not challenging the notifications dated 21.01.2004 and 09.07.2004. Hence, the petitioner would continue to get the benefit in terms of the promise re-extended by para 2 of the Office memorandum dated 01.04.2007 Annexure-K to the writ petition for the remaining period in terms of NEIP, 1997. [46] Another question that has fallen for consideration of this court is that whether the notification dated 01.03.2007 Annexure-L to the writ petition can survive. As this has been held that the respondents have failed to show that the petitioner has misused the incentives or taken undue advantage, the said notification dated 01.03.2007 ....
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.... notification. The second point raised is that, in any case, the decision of this Court in Union of India and Ors. Vs. Unicorn Industries (supra) is per incuriam and requires reconsideration. In deference to the observation made by the Court, Mr. Arvind Datar, learned senior counsel appearing for the petitioner(s) would submit that he has advised the petitioner(s) to first explore the remedy of review petition before the High Court limited to the first contention noted above, namely, that the decision in Unicorn (Supra) is distinguishable in the fact situation of the present case. We permit the petitioner(s) to file such review petition making it clear that we are not expressing any opinion either way on the correctness of this submission. If that issue is answered against the petitioner(s), the petitioner(s) may take up the matter before this Court to challenge the view taken by the High Court in review petition and in which proceedings (before this Court), it will be open to the petitioner(s) to urge that the decision of Unicorn (Supra) requires reconsideration. We make it clear that we are not expressing any opinion about the correctness of th....
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....nment in its counter affidavit to WP No. 144 of 2010. *** F. That Section 154 of the Finance Act, 2003 introduced w.e.f. 14.05.2003 retrospectively withdrew the exemption benefits granted to tobacco and tobacco products vide Notifications issued under Section 5A of the Central Excise Act, 1944, wherein Notification No.32/99-CE and 33/99-CE were amended retrospectively withdrawing the exemption of excise duty on cigarettes and pan masala containing tobacco from 08.07.1999, including jarda scented tobacco from 01.03.2001. However, in spite of the specific enactment of Section 154 of the Finance Act, 2003 removing the exemptions granted to tobacco and tobacco products on public health consideration with retrospective effect from 08.07.1999 (for cigarettes and pan masala) and 01.03.2001 (for jarda scented tobacco), the Government subsequently vide Notification No.69/2003- CE dated 25.08.2003 reintroduced the exemption benefits (50% benefit) to chewing tobacco units, including to the units manufacturing jarda scented tobacco, on inter alia the condition that the amount of duty benefits shall be invested in plant and machinery in a manufacturing unit in the region and s....
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....and Notification No.33/99-Ce dated 08.07.99." H. That the accepted position in the Counter Affidavit filed by the Respondents is that the withdrawal of the Impugned Notification No.11/2007-CE dated 01.03.2007 was due to the alleged misuse of the escrow mechanism. The Counter Affidavit did not mention the supposed adverse health impact of tobacco products as the reason for the withdrawal of the duty benefits. Therefore, it can never be contended that the Impugned Notification No.11/2007-CE dated 01.03.2007 withdrew the duty benefits granted to the Petitioners on account of the supposed adverse health impact posed by tobacco products. That the Hon'ble Supreme Court in Unicorn Industries (supra) only considered the aspect of public health, primarily in the context of Notification No.21/2007-CE which withdrew Notification No's. 32/99-CE and 233/99-CE, and did not consider the aspect of alleged misuse of escrow mechanism. I. That the Office Memorandum dated 01.04.2007 on North East Industrial and Investment Promotion Policy, 2007 make it clear that the intention of the Central government was to continue with the duty benefits granted to the manufacturing units, which h....
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....t viz-a-viz the right of the petitioners who had made investments under the exemption notifications which have been withdrawn by withdrawal notifications No.21 of 2007, dated 25.04.2007 and 11 of 2007, dated 1st March, 2007, the latter of which is impugned in the writ petition. Further submissions have been advanced that the decision in Unicorn Industries (supra) was not applicable to the case of the present petitioners as the ground for withdrawal of the impugned notification No.11 of 2007 as projected by the respondents in their counter affidavit was not of supervening public interest, but misuse of the operation of the escrow mechanism by the beneficiary unit. The Hon'ble Supreme Court had taken into consideration only the public interest element that the consumption of 'pan masala' with tobacco or 'pan masala' without tobacco is hazardous to the human health and, therefore, to curb the consumption, the 2007 notifications thereby included 'pan masala' in Chapter 21 and all products in Chapter 24 i.e. tobacco and manufactured tobacco substitutes, and were put in the negative list. However, it is submitted that the impugned notification has been issued to withdraw the benefits for....