TMI Blog2009 (8) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner. Shri R. Ashokan, for the Respondent. [Judgment per: D.G. Karnik, J.]. - The issue that arises for our consideration in this petition is: "Whether the petitioner is entitled to the benefit of exemption notification issued under Section 25 of the Customs Act, 1962 bearing Notification No. 208/88-Cus., dated 29th June 1988 and No. 159/88-Cus., dated 13th May 1988 in respect of a consignment which arrived in the Port of Bombay after rescinding of the notifications?" 2. On 29th June 1988, the Government of India in exercise of power conferred upon it under Section 25 of the Customs Act, 1962 issued a Notification No. 208/88-Cus exempting machinery and equipment for generation of electrical power (including generating sets) of capacity of 2.5 MW or above but not exceeding 50 MW, from payment of customs duty in excess of 35% ad valorem for a period upto 31st March 1989. By Notification No. 159/88-Cus. dated 13th May 1988 also issued under Section 25 of the Customs Act, 1962, the Government of India exempted several goods, which were granted full or partial exemption from customs duty, from payment of auxiliary duty of customs. On 10th September 1988, the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he DG sets on the basis of a concessional rate of duty and therefore the respondents were not entitled to withdraw the exemption notifications. In support of his submission, counsel referred to the three decisions of the Supreme Court rendered in (i) Shrijee Sales Corporation v. Union of India , 1997 (89) E.L.T. 452 (S.C.), (ii) Dai-ichi Karkaria Ltd. v. Union of India , 2000 (119) E.L.T. 516 (S.C.), and (iii) MRF Ltd. v. Assistant Commissioner (Assessment) Sales Tax , 2006 (206) E.L.T. 6 (S.C.). 4. In the light of the decision of the Supreme Court in Dai-ichi Karkaria Ltd. v. Union of India (supra), the respondents were directed to file affidavit justifying its stand. Accordingly, Mr. Sanjay Sreenath, Deputy Commissioner of Customs has filed a further affidavit in reply dated 20th August 2002. No rejoinder has been filed by the petitioner. We have perused the petition, the first affidavit filed by the respondents as also the additional affidavit filed by Mr. Sanjay Sreenath. However, before we turn to the averments made in the petition and the affidavit in reply, it would be appropriate to refer to the decisions relied upon by the petitioner. 5. In Shrijee Sales Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion stated that it would remain in force till Separate 1987. By Notification No. 513/86-Cus., dated 30th December 1986, the Government exempted raw materials and components required for the manufacture of goods to be supplied to O.N.G.C. or G.A.I.L. from so much of the duty of customs leviable thereon which was specified in First Schedule to the Customs Tariff Act, 1975 as was in excess of the amount calculated at the rate of 25% ad valorem and whole of the additional duty subject to certain conditions. By another Notification No. 517/86-Cus., dated 30th December 1986, it was notified that Notification No. 210/81-Cus., dated 10th September 1982 stood amended by omitting the words "or Oil and Natural Gas Commission or Oil India Limited or Gas Authority of India Limited". As a result thereof, the appellant therein who was manufacturer and supplier of certain goods to O.N.G.C. became liable to pay duty to the extent of 25% for the period between 30th December 1986 and 10th September 1987. The appellant filed a petition before the High Court contending therein that it had taken importation of the material on the basis that no duty was leviable or payable on the imported material and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s limbs like the Board covered by the sweep of Article 12 of the Constitution of India which are "State" can be made subject to equitable doctrine of promissory estoppel in cases where because of their representation the party claiming estoppel has changed its position and if such an estoppel does not fly in the face of any statutory prohibition, absence of power and authority of the promissor and is not otherwise opposed to public interest and also when equity in favour of the promisee does not outweigh equity in favour of the promisor entitling the latter to legally get out of the promise. The Court also referred to its decision in Dai-ichi Karkaria Ltd. v. Union of India (supra), wherein it was held that withdrawal of a notification must not be arbitrary or unreasonable. The Court also referred to its earlier decision in Bannari Amman Sugars Ltd. v. Commercial Tax Officer , 2005 (1) SCC 625, wherein the doctrine of legitimate expectation was explained. 8. These decisions lay down that the doctrine of promissory estoppel is available even against the State and its limbs who are bound by the representations made by it if a subject has altered his position to his/her disadvant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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