TMI Blog2018 (3) TMI 1149X X X X Extracts X X X X X X X X Extracts X X X X ..... r as to the withdrawal of the No Objection Certificates already issued in favour of the importers, there is no necessity for withdrawing the existing No Objection Certificates issued in favour of the importers. The respondents could have very well advised the petitioner to approach the Government of Mozambique for getting suitable clearance based on the No Objection Certificates already issued in their favour - When the 1st respondent had issued the No Objection Certificate in favour of the petitioner, they cannot withdraw the No Objection Certificate merely because the Government of Mozambique had taken a subsequent decision asking the importers to get No Objection Certificates from ICM. Petition allowed. - W.P.No.2274 of 2018 & W.M.P.Nos.2770 to 2772 of 2018 - - - Dated:- 21-3-2018 - M. Duraiswamy, J. For the Petitioner : Mr.Vijaya Narayanan, Senior Counsel for Mr.S.Krishnanandh For the Respondents : Mr.N.Rajan, Central Govt. Standing Counsel- for R1 Mrs. Hema Muralikrishnan, Senior Standing Counsel - for R2 ORDER The petitioner has filed the above writ petition to issue a Writ of Certiorarified Mandamus to quash the communication dated 18.12.2017 attribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 by the 1st respondent, they caused a communication dated 20.,11.2017 to the office of the 1st respondent, enclosing a copy of the above referred contract dated 10.10.2017 and a certificate of origin issued by Mozambique Chamber of Commerce dated 02.11.2017, requesting for issuance of a No Objection Certificate in terms of their trade notice. (v) Based on the petitioner's communication dated 20.11.2017, the office of the 1st respondent caused a communication dated 28.11.2017 marking copy of the No Objection Certificate issued by the 1st respondent. Based on the No Objection Certificate dated 28.11.2017, attributable to the 1st respondent the petitioner had instructed their overseas suppliers to start aggregating, collecting, sorting, cleaning, packing of the said quantity of Pigeon Peas contracted by them and make arrangements for necessary marking on the Polypropylene bags with necessary markings and details as were required under the Food Safety and Standards Act, 2006. (vi) The petitioner received a communication dated 18.12.2017 attributable to the 1st respondent with a copy marked to the 2nd respondent stating that the Government of Mozambique has mandated onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .11.2017 for allowing import of 2000 MTs of pulses by the petitioner from Mozambique under the Memorandum of Understanding. (iii) The Ministry of External Affairs, by dated 30.11.2017, informed the 1st respondent that the Government of Mozambique has mandated the Instituto de Cereasi de Mozambique (ICM) to be the sole designated agency responsible for regulating the export of pulses to India under the Memorandum of Understanding. Further, the Government of Republic of Mozambique has urged the Government of India to import only those pulses from Mozambique that are supported by the Certificate of Origin issued by ICM and not to accept any other imports. (iv) Based on the letter dated 30.11.2017, the 1st respondent decided to withdraw the 'No Objection Certificate' dated 28.11.2017 issued to the petitioner on the ground that the Country of Origin Certificate dated 02.11.2017 submitted by the petitioner had not been issued by the ICM. The petitioner was also advised to obtain the requisite Country of Origin Certificate from ICM and thereafter seek 'No Objection Certificate' from the 1st respondent. (v) The trade notice dated 17.11.2017, vide which the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that henceforth the 'No Objection Certificate' should be obtained from ICM would not make the 'No Objection Certificate' issued in favour of the petitioner as invalid. That apart, the learned Senior Counsel also submitted that the letter written by the Government of Mozambique to the Government of India shall not have retrospective effect and if at all it can only be prospective. In support of his contentions, the learned Senior Counsel relied upon the following judgments: - (i) 2006(204) ELT 8 (S.C.) [Union of India v. Asian Food Industries], wherein in paragraph No.36, the Hon'ble Supreme court held as follows:- 36. Different stages for the purpose of the said Act would, therefore, be different. For interpretation of the provisions of the 1992, Act and the policy laid down as also the procedures framed thereunder, vis-a-vis the provisions of the 1962 Act, the rate of customs duty has no relevance. What would be relevant for the said purpose would be actual permission of the proper officer granting clearance and loading of the goods for exportation. As soon as such permission is granted, the procedure laid for export must be held to have been complied w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue order dated 30.6.1998 it is submitted that the same has to be read in conjunction with SRO 1729/93 as amended by SRO 38/98. That the Board of revenue could not have granted a benefit which was not otherwise available to the appellant under the prevailing notifications. 27. The provisions of the Act or notification are always prospective in operation unless the express language renders it otherwise making it effective with retrospective effect. This Court in S.L. Srinivasa Jute Twine Mills (P) Ltd. Vs. Union of India Anr., 2006 (2) SCC 740, has held that it is a settled principle of interpretation that: retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication; there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. 30. High Court in its judgment has recorded a finding that the notifications being statutory no plea of estoppel will lie against a statutory notification . This finding of the High Court is erroneous. The doctrine of promissory estoppel has been repeat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court to the decision in M.P. Sugar Mills' case, 1979 (2) SCC 409. In our view, to the facts of the present case, the ratio of M.P. Sugar Mills' case directly applies and the plea of estoppel is unanswerable. Xxx xxxx Such exemption would continue for the full period of five years from the date they started production. New industries set up after 21.10.1980 obviously would not be entitled to that benefit as they had noticed of the curtailment in the exemption before they came to set up their industries. [Emphasis supplied] 31. This decision was followed by a three-Judge Bench in the case of State of Bihar Vs. Usha Martin Industries Ltd., 1987 (Supp.) SCC 710 where it was stated that the matter stands concluded by the decision in Pournami Oils Mill's case (supra). In Shri Bakul Oil Industries Vs. State of Gujarat, AIR 1987 SC 142, it was observed in para 11: ..The exemption granted by the Government, as already stated, was only by way of concession for encouraging entrepreneurs to start industries in rural and undeveloped areas and as such it was always open to the State Government to withdraw or revoke the concession. We must, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act.These new industries which got attracted to this region relying upon the promise had altered their position irretrievably. They had spent large amounts of money for establishing the infrastructure, had entered into agreements with the Board for supply of electricity and, therefore, had necessarily altered their position relying on these representations thinking that they would be assured of at least three years' period guaranteeing rebate of 10% on the total bill of electricity to be consumed by them as infancy benefit so that they could effectively compete with the old industries operating in the field and their products could effectively compete with their products. On these well-established facts the Board can certainly be pinned down to its promise on the doctrine of promissory estoppel. [ Emphasis supplied ] 41. Under Section 10(1) of the Act the State Government has the power to make an exemption or reduction in rate either prospectively or retrospectively in respect of any tax payable under this Act. However, the power of Government under Section 10(3) by notification in the Gazette to cancel or vary any notification issued under Section 10(3) cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding the meaning and effect of Section 10(3) of the Act has become final. In any event, the appeal preferred by the State of Kerala was dismissed and the judgment of the High Court has therefore become final. Accordingly, it was held that Section 10(3)does not confer the power to withdraw an exemption with retrospective effect. Effect of this is that the amendment notification SRO 38/98 has to be read so as not to take away or disturb any manufacturer's pre-existing accrued right of exemption for a period of 7 years. If SRO 38/98 is construed as now contended by the respondent, then the inevitable consequence would be that SRO 38/98 would itself be rendered ultra vires Section 10(3) of the Act, and therefore, illegal, bad in law and null and void. 44. We do not agree with the submission made by the learned counsel for the respondent/State that subsequent notification was classificatory in nature. That it only removed the doubt which had arisen with reference to compound rubber in the SRO 1729/93. Making of compound rubber had been accepted to be manufacture in the Memorandum of Undertaking entered between MRF and the Government on 6.10.1993 and the addendum dated 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Senior Counsel for the petitioner, it is submitted that in any event, the Public Notice will have no retrospective effect. In this connection, the learned senior counsel for the petitioner, Mr. Habibullah Basha cited the following rulings of the Supreme Court in the case of the Cannanore Spinning and Weaving Mills Limited v. The Collector of Customs and Central Excise, Cochin and Others and in M/s. Bharat Baprel and Drum Manufacturing Company Private Limited v. The Collector of Customs, Bombay and Another and in Union of India and Others v. Kanunga Industries . It is clear from the above rulings that notifications will have only prospective operation unless the enactment provides for a restrospective operation. In view of the above, there is force in the contention of the learned senior counsel for the petitioner that the Public Notice will have only prospective effect and not retrospective effect. 34. I have carefully considered the contentions of the learned Senior counsel for the petitioner and respondents with regard to the third contention and I am of the view that upon the facts and circumstances of the case, the doctrine of promissory estoppel will apply. It is well s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. In support of his contentions, the learned counsel relied upon a judgment reported in AIR 1986 Supreme Court 806 [Union of India and others v. Godfrey Philips India Ltd], wherein the Hon'ble Supreme court held as follows:- 14. Of course we must make it clear and that is also laid down in Motilal Sugar Mills case (AIR 1978 SC 621) (supra), that there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine it must yield when the equity so requires, if it can be sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y ICM is a subsequent decision. 11. It is not the case of the respondents that the decision taken by the the Government of Mozambique would operate retrospectively and that there was a request made by the Government of Mozambique to withdraw all the No Objection Certificates issued by other agencies prior to their decision. Even the communication sent by the Government of Mozambique is silent to the operation of the decision. That being the case, it can only be prospective and it cannot be stated that it would operate retrospectively. If the said decision is applied retrospectively, then, there should be a specific mention in the communication issued by the Government of Mozambique to the Government of India. When the communication is silent with regard to the application of the subsequent decision, it meant only be prospective. 12. That apart, when there is no mention in the impugned order as to the withdrawal of the No Objection Certificates already issued in favour of the importers, there is no necessity for withdrawing the existing No Objection Certificates issued in favour of the importers. The respondents could have very well advised the petitioner to approach the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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