Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2016 (5) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (5) TMI 1074 - HC - Central ExciseRevoking the area based exemption - North Eastern India region - Jarda scented tobacco/pan masala containing tobacco - Validity of the Notification No. 11/2007-CE dated 1-3-2007 - notification taking away the benefits allowed to the appellant-firm under the Notifications No. 32/1999-CE and 33/1999-CE both bearing dated 8-7-1999 - applicability of doctrine of promissory estoppel - Held that:- The impugned Notification No. 11/2007-CE is hit by the doctrine of promissory estoppel for the following reasons: (a) By the North East Industrial Policy, 1997 implemented by the Notifications No. 32-1999-CE and No. 33-1999-CE, a promise was held out by the respondent authorities that excise and additional excise exemptions would be given to those investors who started production of identified goods for a period of ten years; (b) The appellant believed that the promise was true and, if acted upon, would be entitled to a refund of excise duty, and had, therefore, acted upon such promise; and (c) While acting upon such promise, the appellant altered its position by investing sixty-nine crores of rupees in land, buildings, plants and machineries, office equipments, vehicles and stocks. (d) The authority issuing the Notifications Nos. 11/04-CE and 28/04-CE acted within the scope of his authority. (e) The impugned Notification No. 11/07-CE is ultra vires Section 5A of the Excise Act and is, therefore, not operative; there is thus no difficulty in invoking the doctrine of promissory estoppel. Detail averments were made by the respondent authorities as to the effect that between 25-8-2003 and 21-1-2004, which is known as the pre-escrow account period, the appellant was shown to have invested an amount of rupees one hundred crores out of which only rupees 34 crores was certified by the Investment Appraisal Committee by way of investment in plants and machineries and social infrastructure project, whereas the balance remained un-invested which was subsequently appropriated by the respondent authorities. The respondents also point out that the Commissioner had initiated recovery measures against the appellant by issuing demand notices under Section 11A of the Excise Act for the period of 25-8-2003 to 8-7-2004 as it defaulted in paying back duty to the public exchequer on its own. It is further pointed out by the respondents that during the period from 25-8-2003 to 8-7-2004, the appellant availed of duty exemption to the order of ₹96,61,11,858/- which required it to invest the equivalent amount. It was also required to produce investment certificates for the said amount, but it produced the investment certificate only to the tune of rupees thirty-four crores. According to the respondents, the balance amount of rupees sixty-three crores not so invested in the manner specified in the notification is required to be deposited back with the public exchequer. Instead, the appellant resorted to litigations causing inordinate delay to the respondents in recovering public money. In our opinion, these specific averments made by the respondent authorities have not received satisfactory response from the appellant despite establishing a case of promissory estoppel thereby creating hurdle to its case for complete relief from this Court. No copies of the judgments relied upon by it are also annexed to the writ petition or the memo of appeal. In this view of the matter, the Investment Appraisal Committee shall have to take a call on these issues again. Be that as it may, the impugned judgment is not sustainable in law, and is, therefore, liable to be set aside. Thus the impugned judgment dated 10-12-2010 passed by the learned Single Judge is, accordingly, set aside.Consequently, the impugned Notification No. 11/2007-CE dated 1-3-2007 is hereby quashed. The Investment Appraisal Committee is, therefore, directed to give an opportunity of hearing to the appellant to prove that it has actually invested ₹96,61,11,858/- in the specified items for availing of the benefits made available under the Notifications No. 8/04-CE and 28/04-CE dated 21-1-2004 and dated9-7-2004 respectively within a period of two months.If the appellant can prove that it has actually invested ₹ 96,61,11,858/- or less, the Committee shall issue an Investment Certificate to that effect whereupon the respondent authorities shall refund to the appellant so much of the excise duty, which may become due to it, within a period of three months thereafter.
|