TMI Blog2010 (11) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... fice Memorandum dated 1.4.2007 are given similar effect as that of notification dated 9.9.2003 and the same shall be curtailed in the manner which is not known to law whether the Government is empowered, invoking the right to reserve, to modify the provisions under notification dated 9.9.2003 and Office Memorandum dated 1.4.2007 as contended by Mr. A. Moulik, learned Senior Counsel appearing for the respondents/ revenue - Once it is established that the respective Governments are giving the impugned duty exemption in public interest, the same cannot, at any stretch, be withdrawn unless there is a larger public interest involved - It is a settled law that an authority exercising delegated legislation cannot read in the provision granting powers of delegated legislation something more than what such provision in fact provides - to deny the benefits statutorily conferred upon the petitioners/assessees in the public interest, pursuant to the New Industrial Policy of the Central and State Governments, reducing the percentage of such statutory concessions, suffers from elements of arbitrariness and unreasonableness, which, in turn, are relatively illogical and irrational - the writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied that it is necessary in the public so to do, it may, by special order in each case, exempt from payment of duty of excise, under circumstances of an exceptional nature to be stated in such order, any excisable goods on which duty of excise is leviable. (2A) The Central Government may, if it considers it necessary or expedient so to do for the purpose of clarifying the scope or applicability of any notification issued under sub-section (1) or order issued under sub-section (2) insert an explanation in such notification or order, as the case may be, by notification in the Official Gazette at any time within one year of issue the notification under sub-section (1) or order under sub-section (2), and every such explanation shall have effect as if it had always been the part of the first such notification or order, as the case may be. (3) An exemption under sub-section (1) or sub-section (2) in respect of any excisable goods from any part of the duty of excise leviable thereon (the duty of excise leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: - 2.2.2 "9th September, 2003 Notification No. 71/2003-Central Excise In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than goods specified in Annexure - I appended hereto, and cleared from a unit located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area, as the case may be, in the State of Sikkim, specified in Annexure - II appended hereto, from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the month under consideration, other than by way of utilisation of CENVAT credit under the CENVAT Credit Rules, 2002, in his account current, maintained in terms of Part V of the Excise Manual of Supplementary Instruction issued by the Central Board of Excise and Customs. Such amount credited in the account current may be utilised by the manufacturer for payment of duty in the manner specified under rule 8 of the Central Excise Rules, 2002, in subsequent months, and such payment shall be deemed to be paid in cash: Provided that where the exemption contained in this notification is not applicable to some of the goods produced by a manufacturer, the amount of such credit shall not exceed the amount of duty paid less the amount of the CENVAT Credit availed of, in respect of the duty paid on the inputs used in or in relation to the manufacture of goods cleared under this notification. (b) the credit of duty paid during the month under consideration, other than by way of utilisation of CENVAT credit under the CENVAT Credit Rules, 2002, may be taken by the manufacturer in his account current, by the 7th day of the month following the month under consideration. (c) a manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of excise duty on clearances of excisable goods, the said goods shall be considered to have been cleared without payment of duty to the extent of utilisation of such irregular or excess credit. Explanation.-For the purposes of this notification, duty paid, by utilisation of the amount credited in the account current, shall be taken as payment of duty by way other than utilisation of CENVAT credit under the CENVAT Credit Rules, 2002. 5. The exemption contained in this notification shall apply only to the following kinds of units namely:- (i) new industrial units which have commenced commercial production on or after the 23rd day of December, 2002, but not later than the 31st day of March, 2007; (ii) Industrial units existing before the 23rd day of December, 2002, but which have undertaken substantial expansion by way of increase in installed capacity by not less than twenty-five per cent on or after the 23rd day of December, 2002, but have commenced commercial production from such expanded capacity, not later than the 31st day of March, 2007. 6. The exemption contained in this notification shall apply to any of the said units for a period not exceeding ten year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on substantial expansion will be given to units effecting an increase by not less than 25% in the value of fixed capital investment in plant and machinery for the purpose of expansion of capacity/modernization and diversification , as against an increase by 33 % which was prescribed in NEIP, 1997. (v) Excise Duty Exemption: 100% Excise Duty exemption will be continued, on finished products made in the North Eastern Region, as was available under NEIP, 1997. However, in cases, where the CENVAT paid on the raw materials and intermediate products going into the production of finished products (other than the products which are otherwise exempt or subject to nil rate of duty) is higher than the excise duties payable on the finished products, ways and means to refund such overflow of CENVAT credit will be separately notified by the Ministry of Finance. (vi) Income-tax Exemption: 100% Income-tax exemption will continue under NEIIPP, 2007 as was available under NEIP, 1997. (vii) Capital Investment Subsidy: Capital Investment Subsidy will be enhanced from 15% of the investment in plant and machinery to 30% and the limit for automatic approval of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Hotels (not below Two Star category), adventure and leisure sports including ropeways ; (ii) Medical and health services in the nature of nursing homes with a minimum capacity of 25 beds and old-age homes ; (iii) Vocational training institutes such as institutes for hotel management, catering and food crafts, entrepreneurship development, nursing and paramedical, civil aviation related training, fashion, design and industrial training. A number of tax concessions under the existing provisions of sections 10A and 10AA of the Income-tax Act are already available to the IT sector. However, one of the important impediments to the development of Software Technology Parks or IT related SEZs in the North Eastern Region is the non-availability of trained human resources in the North Eastern Region. Accordingly, tax benefits as is availed under section 80-IC of the Income-tax Act would be extended to IT related training centers and IT hardware units. II. Incentives for Bio-technology industry: The biotechnology industry will be eligible for benefits under NEIIPP, 2007 as applicable to other industries. III. Incentives for Power Generating Industries: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment reserves the right to modify any part of the Policy in public interest. 4. All concerned Ministries/Departments of the Government of India are requested to amend their respective Acts/rules/notifications etc. and issue necessary instructions for giving effect to these decisions. (N.N. Prasad) Joint Secretary to the Government of India" 3.1. Concededly, sub-section (1) of section 5A of the Central Excise Act, 1944 empowers the Central Government to issue notification to exempt generally either with or without conditions, excisable goods as may be specified, from the whole or any part of the duty of excise, provided the Central Government is satisfied that it is necessary in the public interest to grant such exemption. The proviso, thereunder, lays down an embargo in relation to goods produced or manufactured in free trade zone and states that unless specifically exempted by such notification, in lieu of the expressed words used in the proviso, no exemption therein shall apply to excisable goods which are produced or manufactured - (i) in a free trade zone or a special economic zone and brought to any other place in India; or (ii) by a hundred per cent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fice Memorandum dated 23-12-2002 issued by the Government of India, Ministry of Commerce and Industry (Department of Industrial Policy and Promotion), exercising the power conferred under Article 73 of the Constitution of India, and pursuant to which, the Government of Sikkim also issued a Notification dated 17-2-2003 exercising its power under Article 162 of the Constitution of India, which reads as hereunder: "DEPARTMENT OF COMMERCE AND INDUSTRIES, GOVERNMENT OF SIKKIM No. G.O./2/DI/2002-2003/901 Dated : 17/02/03 NOTIFICATION The Notification/Memorandum issued by Ministry of Commerce and Industry, Department of Industrial Policy and Promotion, Govt. of India vide No. 14(2)/2002-SPS, dated 23rd December 2002 approving a special package of incentives for development of Industries in the State of Sikkim, is hereby reproduced for general information of the public and the entrepreneurs as under: No. 14(2)/2002-SPS Government of India, Ministry of Commerce and Industry, (Department of Industrial Policy and Promotion) New Delhi. Dated 23rd Dec. 2002. OFFICE MEMORANDUM Subject : New Industrial Policy and other concessions for the State of Sikkim. The Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing units in notified locations on expansion, as defined, as well as to Thrust Industries shown in Annexure-II. (iv) The insurance premium to the extent of hundred per cent on capital investment for a period of 10 years would be extended by the Central Government to all new units and to existing units on their substantial expansion, as defined. 3.2. Development of Industrial Infrastructure: (i) The funding pattern under the Growth Centre Scheme currently envisaging a Central assistance of Rs.10 crore for each centre is raised to Rs.15 crore per centre. (ii) The financing pattern of Integrated Infrastructure Development Centers (IIDC) between Government of India and SIDBI will change from 2:3 to 4:1, and the GOI funds would be in the nature of a grant, so as to provide the required infrastructural support. 3.3. The above concessions/subsidies shall be available to all new units and to the existing industrial units on their substantial expansion as defined, in the industrial areas notified by the Central Government (Annexure-I) and Thrust Industries (Annexure-II) irrespective of location. 3.4. Ineligible Industries under the policy: Tobacco and tobacco produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State and to boost investor confidence. It is also the intention of the State that new initiative will provide the required incentives as well as enabling environment for industrial development, improve availability of capital and increase market access to provide a fillip to private investment in the State. The Fiscal incentive which proposes for new industrial units as well as substantial expansion of existing units specifically provides for 100% income tax and excise duty exemption for a period of 10 years from the date of commencement of the commercial production. 7. It is not in dispute that based on the above statutory guarantee for the exemption of the excise duty referred to above, the petitioners/assessees invested their money and started new units or expanded their existing units. 8.1 But, surprisingly, the respondents/revenue by notifications dated 27-3-2008 and 10-6-2008, substituted the paragraphs 2, 3 and 4 of the earlier notification dated 9-9-2003, which provide 100% income tax and excise duty exemption. As a result of such modification the said 100% exemption of income tax and excise duty was reduced. 8.2.1 The notifications dated 27.3.2008 and 10.6.2008 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. 40 Tyres, tubes and flaps 41 8. 72 or 73 All goods 39 9. 74 All goods 15 10. 76 All goods 36 11. 85 Electric motors and generators, electric generating sets and parts thereof 31 12. Any chapter Goods other than those mentioned above 36: Provided that where the duty payable on value addition exceeds the duty paid by the manufacturer on the said excisable goods, other than the amount paid by utilization of CENVAT credit during the month, the duty payable on value addition, shall be deemed to be equal to the duty so paid other than by CENVAT credit. 2A In cases where all the goods produced by a manufacturer are eligible for exemption under this notification, the exemption contained in this notification shall be subject to the condition that the manufacturer first utilizes whole of the CENVAT credit available to him on the last day of the month under consideration for payment of duty on goods cleared during such month and pays only the balance amount in cash. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the month in which the credit has been so taken; (e) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, after such verification, as may be deemed necessary, shall determine the amount correctly refundable to the manufacturer and intimate to the manufacturer by the 15th day of the next month to the month in which the statement under clause (d) has been submitted. In case the credit taken by the manufacturer is in excess of the amount determined, the manufacturer shall, within five days from the receipt of the intimation, reverse the said excess credit from the account current maintained by him. In case, the credit taken by the manufacturer is less than the amount of refund determined, the manufacturer shall be eligible to take credit of the balance amount; (f) in case the manufacturer fails to comply with the provisions of clauses (a) to (e), he shall forfeit the option, to take credit of the amount calculated in the manner specified in sub-paragraph 2 in his account current on his own, as provided for in clauses (a) to (c); (g) the amount of the credit availed irregularly or availed of in excess of the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the audited balance sheet of the unit, for the preceding financial year; (2) On receipt of the application referred to in sub-paragraph (1), the Commissioner of Central Excise or Commissioner of Customs and Central Excise, as the case may be, after making or causing to be made such inquiry as he deems fit, shall fix the special rate within a period of six months of such application; (3) Where the manufacturer desires that he may be granted refund provisionally till the time the special rate is fixed, he may, while making the application, apply to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, in writing for grant of provisional refund at the rate specified in column (4) of the said Table for the goods of description specified in column (3) of the said Table and falling in Chapter of the First Schedule of the Central Excise Tariff Act, 1985 (5 of 1986) as in corresponding entry in column (2) of the said Table, and on finalization of the special rate, necessary adjustments be made in the subsequent refunds admissible to the manufacturer in the month following the fixation of such special rate. (4) Where the Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principal notification No. 71/2003-Central Excise, dated 9th September, 2003 was published in the Gazette of India, Extraordinary, vide number G.S.R. 717(E), dated the 9th September, 2003 and was last amended vide Notification No. 21/2007-Central Excise, dated 25th April, 2007 published vide number G.S.R. 308(E), dated the 25th April, 2007." 8.2.3 "GOVERNMENT OF INDIA, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) New Delhi, the 10th June, 2008. NOTIFICATION No. 37/2008-Central Excise In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of section 3 of the Additional Duties of Excise (Textile and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 71/2003-Central Excise, dated the 9th September, 2003 which was published in the Gazette of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, having jurisdiction over the manufacturing unit of the manufacturer for fixation of a special rate representing the actual value addition in respect of any goods manufactured and cleared under this notification, if the manufacturer finds that the actual value addition in the production or manufacture of the said goods is at least 115 per cent of the rate specified in the said Table and for the said purpose, the manufacturer may make an application in writing to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, not later than the 30 day of September in a financial year for determination of such special rate, stating all relevant facts including the proportion in which the material or components are used in the production or manufacture of goods: Provided that the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, may, if he is satisfied that the manufacturer was prevented by sufficient cause from making the application within the aforesaid time, allow such manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund payable at such special rate and the actual refund paid to him from the date of commencement of commercial production till the date of fixation of special rate, shall be refunded to him." (iii) after paragraph 3, the following shall be inserted, namely:- "4. (1) In case the total amount of refund paid or payable to a manufacturer in respect of goods cleared from a unit during a financial year is less than the total duty paid by him on the said goods, other than the amount paid by utilization of CENVAT credit, for the year, the differential amount, if any, shall be refunded to him subject to the condition that the total refund made to him during the year, including the aforesaid differential amount, does not exceed the total duty payable on value addition whether at the rate specified in the Table or at the special rate fixed under paragraph 3. (2) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall refund the differential amount, if any, to the manufacturer not later than the 15th day of May in the subsequent financial year." [F. No. 334/1/2008-TRU] (Unmesh Wagh) Under Secretary to the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quer. 11.2 Elaborating the above contentions, Mr. A. Moulik, learned Senior Counsel appearing for the respondents/revenue explained that the following modus operandi is adopted by the bogus, fictitious manufacturers raising false claims for the duty exemption as hereunder: - "(i) Reporting of bogus production by mere issuance of sale invoices without actual production of goods and supply/clearance of excisable goods. This would result in availment of cenvat credit by buyers of such excisable goods in other parts of the country without actual production being carried out and in absence of actual receipt of goods. (ii) Reporting of bogus production by such units in these areas where actual production takes place elsewhere in the country. (iii) Over valuation of goods resulting in availment of excess of credit by buyer. (iv) Goods are supplied by manufacturers, importers to these units without issuance of sales invoice and these are backed by bogus sale invoices issued by traders who do not undertake actual supply of goods. The actual supplier of these goods issue bogus duty paid invoices to other manufacturers who take credit based on such invoices without receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in The Commissioner of Customs v. M/s. L.T. Karle Co. "10.1. It is a settled law that the principle that fiscal statutes should be strictly construed does not rule out the application of the principles of reasonable construction to give effect to the purpose or intention of any particular provision as apparent from the scheme of the Act, with the assistance of such external aids, as are permissible under law [SHREE SAJJAN MILLS LTD. v. COMMISSIONER OF INCOME-TAX, M.P. BHOPAL, (1986 TAX LAW REPORTER 48 at p.58)]. 10.2. In order to apply the principles of reasonable construction to give effect to the purpose or intention of the provision, as apparent from the scheme of the Act, the Court must endeavour to harmonise different provisions in the same Act and prefer an interpretation which would lead to a harmonise construction rather than to lead to inconsistency. The cardinal principle is that the statute should be interpreted in such a way as to avoid absurdity and to have harmonious effect. 10.3. The Court must construe the relevant provisions to make it workable, unless it is impossible to do so, rather than make it meaningless. 10.4. An attempt must always be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same duty exemption benefits in view of paragraph xv(2) of the notification, which reads as hereunder: "2. The New Industrial Policy and other concession in the North Eastern Region announced vide O.M. No. EA/1/2/96-IPD, dated 24.12.1997 (NEIP, 1997) will cease to operate with effect from 1.4.2007. Industrial Units which have commenced commercial production on or before 31.3.2007 will continue to get benefits/incentives under NEIP, 1997." 17.2 Therefore, it is necessary that the benefits conferred vide notification dated 9.9.2003 are extended and benefits conferred under Office Memorandum dated 1.4.2007 are given similar effect as that of notification dated 9.9.2003 and the same shall be curtailed in the manner which is not known to law. 18.1 Then, the next question arises, whether the Government is empowered, invoking the right to reserve, to modify the provisions under notification dated 9.9.2003 and Office Memorandum dated 1.4.2007 as contended by Mr. A. Moulik, learned Senior Counsel appearing for the respondents/ revenue. 18.2 There is no doubt that the exemption of duty was provided to the petitioners/assessees by the notification dated 9.9.2003 pursuant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maining part of the financial year. If the manufacturer fails to comply with the provisions mentioned in sub-clauses (a) to (e) of clause 4, he shall forfeit the option, to take credit of the amount of duty during the month under consideration, other than by way of utilisation of CENVAT credit under the CENVAT Credit Rules, 2004, in the account current on his own, as provided for in sub-clauses (a) and (c). Clause 5, which was inserted by notification dated 9.7.2004, expressly makes it clear that the exemption contained in the notification dated 9.9.2003 shall apply only to the following kinds of units, namely:- (i) new industrial units which have commenced commercial production on or after the 23rd day of December, 2002, but not later than the 31st day of March, 2007; (ii) industrial units existing before the 23rd day of December, 2002, but which have undertaken substantial expansion by way of increase in installed capacity by not less than twenty-five per cent on or after the 23rd day of December, 2002, but have commenced commercial production from such expanded capacity, not later than the 31st day of March, 2007. 19.2 Section 5A of the Act itself provides for vesting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady granted and in such eventuality, the onus shall be on the Revenue and the same cannot be discharged by merely referring to the contention that the petitioners/assessees are claiming the exemption on bogus ground, in surmise. 23.1 The Office Memorandum dated 1.4.2007, presumably in view of Clause 5 of the notification dated 9.9.2003, states that Industrial Units which have commenced commercial production on or before 31.3.2007 will continue to get benefits/incentives under the New Industrial Policy and other concessions for the State of Sikkim , and they alone are entitled for exemption. The Government came with another Office Memorandum dated 1.4.2007 (in File No. 10(3)/2007-DBA-II/NER) wherein it has specifically provided that Excise Duty Exemption will be continued as hereunder: - "100% Excise Duty exemption will be continued, on finished products made in the North Eastern Region, as was available under NEIP, 1997. However, in cases, where the CENVAT paid on the raw materials and intermediate products going into the production of finished products (other than the products which are otherwise exempt or subject to nit rate of duty) in higher than the excise duties payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) to achieve optimal utilization of human resources; (iv) to attain international competitiveness; and (v) to transform India into a major partner and player in the global arena. 16.3. In the process of meeting the challenges that come across the globalization of economy, industry, trade and commerce, the Government have come forward with liberalization schemes such as, granting certain exemptions in respect of tax payable on the turnover of the sale of goods produced and sold by the new or expanded or diversified industrial units, of course, subject to the directions, qualifications and the terms and conditions prescribed in the scheme, eligibility certificate and the consequential agreements, with a view to boost the industrialisation by (i) deregulating Indian Industry, (ii) allowing the industry freedom and flexibility in responding to market forces, and (iii) providing a policy regime that facilitates and fosters growth of Indian Industry. 16.4. The power to maintain economic unity includes the power to grant exemptions or to reduce the rate of interest or defer or waive the sales tax as a special case for achieving the industrial development and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncession except to enjoy the benefits of the concession during the period of its grant. This right to enjoy is a defeasible one as it may be taken away in simpliciter or on the ground of violation of the conditions prescribed under the respective schemes, in exercise of the very power under which the exemption was granted. Either for declaring or for withdrawing such exemption in the case of deferral or waiver, the cardinal principle is that the same must be exercised in the public interest and not otherwise [vide: State of Rajasthan v. J.K.Udaipur Udyog Ltd. (2004) 7 SCC 673]." 25. With the above rules of interpretation and in the light of the objects expressed in the respective notifications, the Government undoubtedly, in public interest, exempted excise duty, by notification dated 9.9.2003 and Office Memorandum dated 1.4.2007 (i) to improve productivity of the State; (ii) to encourage economy, sustainable growth in the productivity; (iii) to achieve the optimal utilization so that the economy, trade, commerce and the standard of living in the State of Sikkim would grow and improve in all spheres; (iv) the State would qualify to compete with all other States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not possible to even ascertain as to whether the other units, not located in the District of Kutch, were put up within the same period; and even if so put up, were put up in an area affected by a devastating earthquake. The object and purpose of issuing Original Notification was in relation to a region, namely, District Kutch, which was almost razed to ground by the earthquake in January 2001, and the package for economic and social revival thereof cannot be treated at par with industries set up in other areas of India and, therefore, the assimilation of percentile figures of two incomparable regions would give a misleading picture. The entire exercise of issuing subsequent notifications on 27.3.2008 and 10.6.2008 is thus without any basis, i.e. the basis adopted has no nexus with the object, intent and purpose which formed the basis for issuing Original Notification in 2001. 23. Section 38A of the Act is in relation to effect of amendments, etc., of Rules, Notifications or Orders. The said provision reads as under: [38A. Effect of amendments, etc., of rules, notifications or orders. Where any rule, notification or order made or issued under this Act or any notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or privilege has been acquired or has accrued, the same shall not be affected by the amendment, etc. of the notification, and correspondingly an obligation or liability incurred under the notification shall have to be discharged even after the amendment, etc. Clauses (d) and (e) similarly provide for permitting continuation of leviability of any penalty, etc. and continuation of any investigation, legal proceeding or remedy, etc. 25. Thus, the scheme which emerges on a plain reading of section 38A of the Act is that even in a case where a Rule, Notification, etc. is amended, etc., unless the amending Rule, Notification, etc. specifically denotes a contrary intention, everything that has taken place under the Rule, Notification, etc. prior to amendment shall continue to its logical end. This provision is not only a saving provision, but is a provision which correspondingly obligates both the person who was a beneficiary under the existing Rule, Notification, etc. and the authority under the existing Rule, Notification, etc. to continue to comply with the requirements of the Rule, Notification, etc. as it existed even after amendment once the parties have duly done anything or su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in exercise of delegated legislation the State has consciously agreed to forego certain revenue the State cannot resile from the said position only on the ground of loss to the exchequer. Of course, it is equally well settled that no person can be permitted to misuse the concession or benefit and invoke promissory estoppel. If one party abuses the concession it is always open to the other party to revoke such concession. But for this there has to be cogent material in the form of direct evidence pointing out misuse of the concession. When public interest is pleaded the same cannot be general and vague for the purpose of either modifying or revoking an exemption already granted. Supervening public interest is always a good ground for modifying or withdrawing an exemption. But once again such supervening public interest has to be established by direct cogent evidence in this regard, and not on basis of general and vague apprehensions. 28. In a case where the State invited new industries by offering concessional power tariff and thereafter withdrew the same on the ground that there was power theft on a large scale the Apex Court in case of U.P. Power Corpn. Ltd. (supra), after det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State. 28.2 Undoubtedly, only genuine and bona fide manufacturers are entitled for exemption of excise duty and not bogus or fictitious manufacturers. The power of the revenue undoubtedly is still available to deny the exemption of excise duty conferred under the notification dated 9.9.2003 and Office Memorandum dated 1.4.2007, by way of individual proceedings which always could be initiated by the revenue against the faulty, bogus claimants or manufacturers as contended by Mr. Moulik, learned Senior Counsel or otherwise the very public interest enshrined in the New Industrial Policy of the Central and the State Governments, exercising the powers under Articles 73 and 162 of the Constitution of India, of course without compromising the loss of revenue. Therefore, the revenue is always well within the power to deny the duty exemption in appropriate cases where the norms, terms and conditions required for such duty exemption cannot be satisfied. But, to deny the benefits statutorily conferred upon the petitioners/assessees in the public interest, pursuant to the New Industrial Policy of the Central and State Governments, reducing the percentage of such statutory concessions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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