TMI Blog2014 (9) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... o doubt, area of warehouse was mentioned in the licence dated 25-5-2004 of the writ petitioner as 100 hectares for limestone mining area, and 7.6 hectares of land for crushing area. But the project report submitted in July, 2002 with application for licence clearly shows that the writ petitioner had mentioned in para 18 that it proposes to install the long belt conveyor from the mine site to the cement plant at Chhatak in Bangladesh to transport crushed limestone. Summary capital cost of 977 millions which is also part of the project discloses the amount to be spent on long belt conveyor facility. As such it cannot be said that the writ petitioner had concealed any fact from the appellants. The principle contained in above cases cannot be made applicable to the cases where two different companies registered in two different countries have established their units dependant on each other. In our view the ground on which this writ appeal is liable to be dismissed is that the learned single Judge has rightly applied doctrine of promissory estoppel against the appellants, particularly when there was no misrepresentation made by the writ petitioner. - Decided against the revenue. - W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Secretariat of Industrial Approval (for short SIA) of the Government of India vide letter No. FCII : 393(98)/471(98), dated 11-8-1998 to set up a 100% subsidiary company for the mining and export operations. The writ petitioner s (present respondent) case is that in the State of Meghalaya (India) under the flagship of petitioner-company (i.e. subsidiary company of LSC) manufacturing process of cement commences from mining and limestone and shale crushing the same so as to make it consumable for cement production through the continuous long belt conveyor system till the Indian Border for its destination at the manufacturing plant in Bangladesh. It has been stated by the writ petitioner in its petition that 7 kilometers of long conveyor belt system out of 17 Kilometers lies within the territory of India and remaining 10 kilometers lies within the limits of territory of Bangladesh. The stretch of land over which long conveyor belt passes through has been acquired by LSC. Thus, the entire project is an integrated cement manufacturing facility set up on a continuous stretch of projects land. 4. The writ petitioner has pleaded that Board of Approval notification dated 7-8-2001 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioner-company made huge investment. It is stated in the writ petition that the writ petitioner on faith and on the basis of the aforesaid expressed assurance of respondent authorities, had made the investment to the tune of more than ₹ 59 crores by September, 2005. 6. On 12-5-2004, on the basis of the permission accorded to the writ petitioner as a 100% EOU, the petitioner-company had approached jurisdictional Custom authorities for declaring the entire EOU premises comprising of mining area including crusher and crushing area and the long belt conveyor system till the Indian border as a Customs Warehousing Station, in terms of letter of permission issued by the Development Commissioner, FSEZ, Kolkata. But the Commissioner of Customs (Preventive), Shillong issued Notification No. 3/2004-Cus. (N.T.), dated 19-5-2004, whereby, only a part of EOU permits comprising of 100 % hectares of limestone mining area and 7.6. hectares of land from crushing area were declared as a customs warehousing station [as such area pertaining to long elevated conveyor belt (in India) was left out]. In terms of said notification, the Assistant Commissioner of Customs, Shillong grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that is the composite cement plant with units both in India and Bangladesh, and is a part of joint collaboration between India and Bangladesh. Accordingly, the communication was made vide letter No. 2(1)/L-2/2004/2403, dated 30-6-2004 acknowledging that the project is a 100% EOU which included long conveyor belt system. On receipt of said communication, the writ petitioner approached Assistant Development Officer, Falta, Kolkata for amending the Notification No. 3/2004-Cus. (N.T.), dated 19-5-2004 to include long belt conveyor system within warehouse station under Section 9 of the Customs Act, 1962. No reply was received for almost one year, and by a belated letter dated 25-7-2005, Superintendent, Office of Commissioner of Central Excise, Shillong Range communicated to the writ petitioner that subsequently BOA in its meeting held on 28-10-2004 has revised its own decision dated 31-5-2004. By then, the petitioner had already made huge investment in the project. 7. Aggrieved by aforesaid communication regarding change in stand by the appellant, taking the ground of doctrine of promissory estoppel, the writ petitioner (in first round of litigation), filed earlier WP (C) N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds disposed on withdrawal. In the event, the respondent/writ petitioner is aggrieved by any decision taken by the appellants after giving them reasonable opportunity, the respondent shall be at liberty to approach the appropriate forum. 8. Thereafter, the writ petitioner made fresh representation before the Board of Approval through Development Commissioner, FSEZ), Kolkata and hearing went on before the BOA on 3-6-2008, 29-8-2008 and 19-11-2008. However, earlier decision dated 23-9-2004/13-10-2004 was reiterated and communicated to the writ petitioner vide letter dated 6-1-2009 by Development Commissioner, FSEZ, Kolkata. Aggrieved by said order, fresh round of litigation started and writ petitioner filed WP(C) No. 198(SH) 2009. In the present round of litigation, it is pleaded by the writ petitioner that no reason has been disclosed for rejecting the application of the petitioner-company. It is further pleaded that letter dated 6-1-2009 issued by the Development Commissioner, FSEZ is an antithetic to the principle of fair play in action. No minutes of the proceedings held on 3-6-2008, 29-8-2008 and 19-11-2008 were supplied to the writ petitioner. By its letter of permission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities in their unit for their selfish interest by ascertaining that 7 kilometers long conveyer belt is also covered by the exemption covering EOU. It is contended on behalf of the appellants that the previous approval made by the respondent authorities (present appellants) was based on the misrepresentation of facts and they have right to correct their decision after correct fact was brought to the notice of the authority concerned. It is also pleaded that if 7 KM long conveyor belt is treated as capital goods eligible for duty free import, it would mean that all similar units meant for carrying finished exports goods shall be recognized as an activity attributed to manufacture of article for export or for being used in connection with production or package or job work for export of goods or services by export oriented undertaking. Notification dated 31-3-2003, according to the appellants, does not allow means of transportation of export of goods eligible for exemption, as such, only crushing of limestone can be recognized for the purposes of duty exemption and not for parting long belt conveyor system. Since the petitioner-company has procured goods for operating LBS without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the mines to the cement plant. (b) Facilities and permission for convenient border crossing and re-crossing for the personnel required to cross the India-Bangladesh border at a location to be mutually agreed upon, during construction and operation of the project. (c) Setting up of a Customs and Immigration post to be conveniently located in an area to be mutually agreed upon at the cost of Lafarge Surma Cement Ltd. The Government of India and the Government of Bangladesh look forward to the early implementation of the project as a milestone of the excellent relations and close economic cooperation between our two neighbouring countries. I would be grateful if Your Excellency could confirm that the above correctly sets out the understanding reached between our two Governments. Please accept, Excellency, the assurances of my highest consideration . 11. In reply to above letter, Foreign Secretary, Ministry of External Affairs, New Delhi wrote the following letter on 30-11-2000 (copy Annexure A2) which is reproduced below : FOREIGN SECRETARY MINISTRY OF EXTERNAL AFFAIRS NEW DELHI-110011 No. 1/ii/113/8/97 30 November, 2000 Excellen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 The Development Commissioner Export Processing Zone, 4th Floor Nizam Palace, AJC Bose Road, Kolkata. Subject : Application for setting up EOU-Nongtrai Limestone Mining Project in Meghalaya of Lafarge Umiam Mining Private Limited, Shillong, Meghalaya. Dear Sir, We are pleased to inform that Lafarge Umiam Mining Private Limited, registered under the Indian Companies Act, 1956 having its registered office at Polo Towers, Polo Grounds, Oakland Road, Shillong, 793001, is in the process of setting up 2 million tones per annum limestone mining project at Phlangkaruh, Nongtrai, Shell Confederacy, East Khasi Hills District in Meghalaya. The entire produce is proposed to be exported to Bangladesh through a continuous elevated belt conveyor system after crushing and screening of the limestone at the mine site. Under the Exim Policy of Government of India, we wish to apply for grant of EOU status for the project. Enclosed please find our application as per appendix 146 of Exim Policy 2002. We request you kindly to consider our application and grant the EOU status for the project at the earliest convenience. We remain. Thanking you. 13. On consideration of above l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t conveyor. The above Licence is granted to M/s. Lafarge Umiam Mining Private Limited. It is not transferable to any per/persons and shall remain in force up to 24-5-2009 unless specifically revoked before the expiry of that period under Section 58 of the Customs Act, 1962, read with Regulation 14 of Manufacture Other Operations in Warehouse Regulations, 1966. (GM Kamei) Assistant Commissioner. 14. Thereafter, agreement dated 14-10-2003 (copy Annexure E1) appears to have been executed between the writ petitioner and the President of India, through Development Commissioner, FSEZ. Said agreement has been executed in pursuance to communication dated 16-10-2002 and it is mentioned that the unit (writ petitioner) has been permitted to import/purchase indigenously plant and machinery, raw materials, components, spares and consumables free of import/central excise duty as per details given at Annexure (i) with such agreement (which is part of Annexure E1 to the writ petition). Page 2 of said Annexure to agreement discloses that conveyor belt has been shown as mechanical equipment for which no central excise duty is required to be paid. 15. Now, we come to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified in changing their decision and withdrawing the facility. We agree with the principle that in case of misrepresentation, decision can be withdrawn but having gone through the entire record on the evidence discussed as above, we do not find any misrepresentation made by the writ petitioner. No doubt, area of warehouse was mentioned in the licence dated 25-5-2004 of the writ petitioner as 100 hectares for limestone mining area, and 7.6 hectares of land for crushing area. But the project report submitted in July, 2002 with application for licence clearly shows that the writ petitioner had mentioned in para 18 that it proposes to install the long belt conveyor from the mine site to the cement plant at Chhatak in Bangladesh to transport crushed limestone. Summary capital cost of 977 millions which is also part of the project discloses the amount to be spent on long belt conveyor facility. As such it cannot be said that the writ petitioner had concealed any fact from the appellants. Letter of Permission dated 16-10-2002 issued to the writ petitioner by the FSEZ, Kolkata is annexed at Annexure E to the writ petition. 18. On behalf of the writ petitioner/respondent, attention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mode of treatment of certain materials in order to produce a good result, a species of activity performed on the subject-matter in order to transform or reduce it to a certain stage. According to Oxford Dictionary one of the meanings of the word process is a continuous and regular action or succession of actions taking place or carried on in a definite manner and leading to the accomplishment of some result. The activity contemplated by the definition is perfectly general requiring only the continuous or quick succession. It is not one of the requisites that the activity should involve some operation on some material in order to its conversion to some particular stage. There is nothing in the natural meaning of the word process to exclude its application to handling. There may be a process which consists only in handling and there may be a process which involves no handling or not merely handing but use or also use. It may be a process involving the handling of the material and it need not be a process involving the use of material. The activity may be subordinate but one in relation to the further process of manufacture. 21. Reliance is also placed on behalf of the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
