TMI Blog2020 (4) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... ase the subsequent notification which has been quashed and set aside by the High Court being notification No. 16 of 2008 dated 27.03.2008 can be said to be clarificatory in nature and can it be said that it takes away the vested right conferred pursuant to the earlier notification of 2001 and whether the same can be made applicable retrospectively and whether the same has been issued in the public interest and whether the same is hit by the Doctrine of Promissory Estoppel? HELD THAT:- Once it is held that the subsequent notifications/industrial policies impugned before the respective High Court are clarificatory in nature and it does not take away any vested rights conferred under the earlier notifications/industrial policies. In the case of Kasinka Trading [ 1994 (10) TMI 64 - SUPREME COURT ] , this Court has specifically and clearly held that the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the objective to be achieved and the public good at large. It has been held that while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective - In the case of State of Bihar v. Ramesh Prasad Verma [ 1772919 ], it is observed and held that any legislation or instrument having force of law, if clarificatory, declaratory or explanatory in nature and purport, will have retrospective operation especially in the absence of any indication to the contrary as to retrospectivity either in parent Act or Rules or notifications involved. Interpretation of Fiscal statutes - HELD THAT:- The respective notifications/industrial policies impugned before the High Courts can be said to be clarificatory in nature and it can be defined as an Act to remove doubts. It cannot be said that by the subsequent notifications/industrial policies the benefits which were accrued/granted under the earlier notifications were sought to be taken away. It also cannot be said that by the subsequent notifications/industrial policies, the rights which have been accrued under the earlier notifications had been taken away. The subsequent notifications/industrial policies do not take away any vested right conferred under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2279 of 2020 @ SLP (C) No.19386/2015, C.A. No. 2280 of 2020 @ SLP (C) No.19379/2015, C.A. No. 2281 of 2020 @ SLP (C) No.19376/2015, C.A. No. 2282 of 2020 @ SLP (C) No.19384/2015, C.A. No. 2283 of 2020 @ SLP (C) No.19380/2015, C.A. No. 2284 of 2020 @ SLP (C) No.20626/2015, C.A. No. 2285 of 2020 @ SLP (C) No.21583/2015, C.A. No. 2286 of 2020 @ SLP (C) No.19320/2015, C.A. No. 2287 of 2020 @ SLP (C) No.19371/2015, C.A. No. 2288 of 2020 @ SLP (C) No.20109/2015, C.A. No. 2289 of 2020 @ SLP (C) No.19378/2015, C.A. No. 2290 of 2020 @ SLP (C) No.19375/2015, C.A. No. 2291 of 2020 @ SLP (C) No.21406/2015, C.A. No. 2292 of 2020 @ SLP (C) No.23331/2015, C.A. No. 2293 of 2020 @ SLP (C) No.20630/2015, C.A. No. 2294 of 2020 @ SLP (C) No.20631/2015, C.A. No. 2295 of 2020 @ SLP (C) No.20628/2015, C.A. No. 2296 of 2020 @ SLP (C) No.20627/2015, C.A. No. 2297 of 2020 @ SLP (C) No.19228/2015, C.A. No. 2298 of 2020 @ SLP (C) No.23394/2015, C.A. No. 2299 of 2020 @ SLP (C) No.23399/2015, C.A. No. 2300 of 2020 @ SLP (C) No.23328/2015, C.A. No. 2301 of 2020 @ SLP (C) No.19373/2015, C.A. No. 2302 of 2020 @ SLP (C) No.23329/2015, C.A. No. 2303 of 2020 @ SLP (C) No.23326/2015, C.A. No. 2304 of 2020 @ SLP (C) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.25797/2015, C.A. No. 2354 of 2020 @ SLP (C) No.26290/2015, C.A. No. 2355 of 2020 @ SLP (C) No.27744/2015, C.A. No. 2356 of 2020 @ SLP (C) No.26972/2015, C.A. No. 2357 of 2020 @ SLP (C) No.1907/2016, C.A. No. 2358 of 2020 @ SLP (C) No.7208/2016, C.A. No. 2359 of 2020 @ SLP (C) No. 10257/2018, C.A. No. 2360 of 2020 @ SLP (C) No.10253/2018, C.A. No. 2361 of 2020 @ SLP (C) No.12148/2018 and, C.A. No. 2362 of 2020 @ SLP (C) No.12496/2018. Arun Mishra, M. R. Shah And B.R. Gavai For the Petitioner(s) : Mr. B. Krishna Prasad, AOR, Mr. Ashish Gopal Garg,Adv., Mr. Rakesh Garg,Adv., Ms. Shweta Garg, AOR And Mr. Himanshu Shekhar, AOR For the Respondent(s) : Mr. E. C. Agrawala, AOR, Mr. Ramendra Lal Auddy, AOR, Mr. Rajan Narain, AOR, Mr. V. K. Sidharthan, AOR, Mr. S. S. Shroff, AOR, M/S. K J John And Co, AOR, Mrs. Bina Gupta, AOR, Ms. Diksha Rai, AOR, Mr. K. V. Mohan, AOR, Mr. Satya Mitra, AOR, Mr. Partha Sil, AOR, Mr. Pawanshree Agrawal, AOR, Mr. Mahfooz Ahsan Nazki, AOR, Mr. Shriram P. Pingle, AOR, Mr. Shekhar Prit Jha, AOR, Mr. B. Krishna Prasad, AOR, Mr. Praveen Kumar, AOR, M/S. Khaitan Co., AOR, Mr. Rahul Narayan, AOR, Mr. Shashwat Goel,Adv., Mr. Nikhil Singhvi,Adv., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 39/2001-CE dated 31.07.2001. The said notification granted exemption to goods cleared from a New Industrial Unit set up in the Kutch District of Gujarat prior to 31.07.2003 (which was subsequently extended to 31.12.2005) from so much of duty of excise as was equivalent to the amount of duty paid in cash/Personal Ledger Account (PLA) on the finished goods. That the said incentive of refund of the duty paid in cash/PLA was available for the period of 5 years from the date of commencement of commercial production. The object of the Incentive Scheme was to revive the economy in Kutch District by attracting fresh large scale investments from entrepreneurs by setting up new industries in the said District so as to generate new employment which in turn would help Kutch District and its people to be brought back in the main stream with the Nation. The said notification operationalised the incentive scheme in the following manner: a) The eligible unit was required to produce a certificate from a High Powered Committee comprising of a Chief Commissioner of Central Excise and the Chief Secretary to the Government of Gujarat certifying that the unit was indeed a new indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing up new industrial units from 31.07.2003 to 31.12.2005. One another amendment was made with effect from 06.08.2003 vide notification No. 65/2003-CE to provide that PLA payments could be made to discharge duty liabilities on the finished products only after exhausting the CENVAT Credit balances. 3.4 According to the original writ petitioners, in view of the inventive offered under Notification No. 39/2001-CE, the respondents herein -original writ petitioners which had initially planned to expand their manufacturing activities at Maharashtra, decided to instead set up the new units in the Kutch District. That was in the month of December, 2005. According to the original writ petitioners, the said decision was taken only because of the incentive promised by the Government to refund excise duty paid in the Kutch area. According to the original writ petitioners, as a result of the decision to set up a new unit in Kutch District, the company had to additionally incur substantial costs towards additional freight, handling charges, storage charges etc., which worked out to approximately ₹ 2,200/- PMT. In addition, the company suffered severe locational disadvantages. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et up in District of Kutch pursuant to the Exemption Notification was found to be inordinately high as compared to other similarly placed units in other parts of India; iv) the Central Government by the very same power by which it grants exemption is empowered to withdraw the same; v) the impugned notifications are only a modification to give effect to the real intention of the Government and are not withdrawal of the benefit; and vi) in light of the misuse of the exemption pleaded by UOI, public interest warrants such withdrawal. 3.8 Simultaneously, the manufacturing units also filed representations to the Government for re-consideration. Pursuant to the representations, one another notification was issued by the Central Government vide Notification No. 33/2008- CEdated 10.6.2008. Therefore, the original writ petitioners amended the writ petitions challenging the subsequent notification dated 10.6.2008 also. It appears that thereafter the Central Government vide notification No. 51/2008 dated 3.10.2008 revised the deemed value addition at 75% in respect of the products manufactured by the original writ petitioners without giving them any option of applying for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into the merits in view of its earlier decision which is the subject matter before this Court in the case of Civil Appeals @ SLP Nos. 28194-28201 of 2010. As, in the present appeals, the question is with respect to the challenge to the subsequent notifications which are also the subject-matter of this Court in the case of Civil Appeals @ SLP Nos. 28194-28201 of 2010, all these appeals are also decided and disposed of together with this common judgment and order. Civil Appeal Nos. . of 2020 @ SLP (C) Nos. 15481-15489 of 2011 5. These Civil Appeals arise out of the impugned Judgment and Order passed by the High Court of Sikkim at Gangtok dated 15.11.2010 passed in Writ Petition Nos. 11/2008 and other allied writ petitions, by which the High Court has quashed and set aside the similar notifications dated 27.03.2008 and 10.06.2008 allowing the refund of excise duty on value addition basis, on the ground that the same are against the principle of promissory estoppel. As the original notifications dated 09.09.2003 as well as OM dated 01.04.2007 and the subsequent notifications dated 27.03.2008 and 10.06.2008 are as such similar to the notification No. 16 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WP C No.3377/2009 20.11.2014 9 3.15 SLP (C) No.20626/2015 Guwahati WP C No.6161/2012 20.11.2014 10 3.16 SLP (C) No.21583/2015 Guwahati WP C No.5444/2014 20.11.2014 11 3.17 SLP (C) No.19320/2015 Guwahati WP C No.809/2013 20.11.2014 12 3.18 SLP (C) No.19371/2015 Guwahati WP C No.1975/2013 20.11.2014 13 3.19 SLP (C) No.20109/2015 Guwahati WP C No.937/2015 20.02.2015 14 3.20 SLP (C) No.19378/2015 Guwahati WP C No.6786/2013 20.11.2014 15 3.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.23326/2015 Guwahati WP C No.239/2013 20.11.2014 29 3.35 SLP (C) No.20442/2015 Guwahati WP C No.972/2015 24.02.2015 30 3.36 SLP (C) No.23398/2015 Guwahati WP C No.723/2014 20.11.2014 31 3.37 SLP (C) No.23393/2015 Guwahati WP C No.1696/2014 20.11.2014 32 3.38 SLP (C) No.20370/2015 Guwahati WP C No.864/2015 19.02.2015 33 3.39 SLP (C) No.19842/2015 Guwahati WP C No.1433/2015 30.03.2015 34 3.40 SLP (C) No.22568/2015 Guwahati WP C No.1427/2015 30.03.2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.54 SLP (C) No.23897/2015 Guwahati WP C No.2138/2009 20.11.2014 49 3.55 SLP (C) No.23900/2015 Guwahati WP C No.41/2013 20.11.2014 50 3.56 SLP (C) No.23295/2015 Guwahati WP C No.2887/2014 20.11.2014 51 3.57 SLP (C) No.23299/2015 Guwahati WP C No.3458/2014 20.11.2014 52 3.58 SLP (C) No.23902/2015 Guwahati WP C No.4433/2014 23.01.2015 53 3.59 SLP (C) No.27036/2015 Guwahati WP C No.5968/2012 20.11.2014 54 3.60 SLP (C) No.23296/2015 Guwahati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.02.2015 68 3.74 SLP (C) No.27046/2015 Guwahati WP C No.1153/2013 20.11.2014 69 3.75 SLP (C) No.26767/2015 Guwahati WP C No.240/2013 20.11.2014 70 3.76 SLP (C) No.27043/2015 Guwahati WP C No.457/2013 20.11.2014 71 3.77 SLP (C) No.26821/2015 Guwahati WP C No.6698/2013 20.11.2014 72 3.78 SLP (C) No.27050/2015 Guwahati WP C No.290/2015 28.01.2015 73 3.79 SLP (C) No.26294/2015 Guwahati WP C No.109/2013 20.11.2014 74 3.80 SLP (C) No.27048/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpansion. As per this policy, 100% excise duty exemption was provided on the products manufactured in the North-Eastern region. By the subsequent notifications/industrial policies which were impugned before the High Court, the refund of excise duty was limited to the extent of the value addition. The High Court by the impugned common Judgment and Order has set aside the subsequent notifications/industrial policies which were similar to notification No. 16 of 2008 applicable to Kutch area of Gujarat and subject matter of Civil Appeals @ SLP Nos. 28194-28201 of 2010. Civil Appeal No. of 2020 @ SLP No. 10257/2018 , Civil Appeal No. of 2020 @ SLP No. 10253/2018, Civil Appeal No. of 2020 @ SLP No. 12148/2018 and Civil Appeal No. of 2020 @ SLP No. 12496/2018 7. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court of Sikkim dated 21.11.2017 passed in Writ Petition Nos. 8/2017, 27/2017, 40/2015 and 41/2015 respectively, by which the High Court has quashed and set aside the subsequent notification No. 20 of 2008 dated 27.03.2008, notification No. 36 of 2008 dated 10.06.2008 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself the power to rescind, modify or withdraw such exemption. It is submitted that the liability to pay excise duty under the Central Excise Act arises when a taxable event occurs. An exemption notification issued under Section 5A will not affect the suspending the collection of duty under normal circumstance. It is submitted that in the present case the exemption was by conditions laid down in the notification and in public interest. Such an exemption of this very nature is susceptible of being revoked, annulled, modified or varied or subjected to exercise of statutory power of State under the law itself as is obvious from the language of Section 5A; 8.3 The High Court has erred in not appreciating that the Government has validly issued the notifications. The provision of granting of refund of cash paid portion of duty and eligibility of credit of entire amount of duty to the buyers of such excisable goods had prompted certain unscrupulous manufacturers to indulge in different type of tax evasion tactics. An analysis of cases booked by the Excise Department and the representations received from Industry Association had revealed misuse of exemptions given by the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcentage of duty paid by the units in cash in the specified areas is comparable with the units in the rest of the country. An analysis of these details clearly showed that the industry sectors in the specified areas were paying a very high percentage of duty in cash i.e. through personal ledger account (PLA) in comparison to the all India payment of duty through PLA on similar goods. Thus there was misuse of excise duty exemption which was considered expedient in public interest and given by the Central Government with a laudable object of having genuine industrialization in either backward areas or areas such like Kutch, which suffered on account of Natural calamity. Misuse of excise duty exemption being rampant and the effect of such manipulated acts were brought to the notice of the Government. The policy and intention of the Government to provide excise duty exemption was in respect of genuine manufacturing activities carried out in these areas. The entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption was to provide such exemption only to actual value addition made in these areas. It is in the background of these facts and with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of notification dated 31.07.2001, representations were received from State Government as well as representations of the people and Trade and Industry that tax holidays be provided to areas affected by earthquake. The Government considering the representations issued exemption notification dated 31.07.2001 subject to conditions, the intention behind the exemption scheme was to attract immediate fresh investment by incentivizing setting up of new industrial units so as to generate employment. The exemptions are subject to periodic review to weed out those which have outlived their utility, to meet the objectives of the Government, to curb misuse and revenue consideration. It is submitted that it was a part of review exercise and in background of reports of misuse that the amendment notification dated 27.3.2008 was issued; 8.6.4 The doctrine of promissory estoppel cannot be invoked against exercise of powers under the statute; 8.6.5 The bar of promissory estoppel is not applicable in fiscal matters; 8.6.6 The Court has to look into the notification with a presumption of validity, and not examining the matter with microscopic view to weigh the sufficiency of the materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India by withdrawal of the exemption benefits and that the policy of withdrawal of benefit/incentive is retrospective and not retro-active. 9. Learned Senior Advocates/Counsel appearing on behalf of the respective respondents-original writ petitioners before the High Court, while supporting the impugned common judgment and order passed by the High Court have vehemently submitted that in the facts and circumstances of the case, the High Court has rightly set aside the impugned notification no. 16 of 2008 dated 27.03.2008 on the ground that the withdrawal of exemption is retrospective and not retro-active and also on the ground that the same is hit by the doctrine of promissory estoppel. 9.1 Learned Senior Advocates/Counsel appearing on behalf of the respective respondents-original writ petitioners have made the following submissions: 9.1.1 A massive earthquake struck the Kutch district, in the State of Gujarat on 26.01.2001 destroying virtually the entire industrial infrastructure in the said district. With a view to revive the industry and to offer employment opportunities, the Ministry of Finance, Government of India announced incentives for setting up new indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2.1 Notification No. 16/2008 dated 27.03.2008, amended Notification No. 39/2001-CE by providing that the benefit of refund would be granted with reference to the value addition undertaken by manufacturing units in Kutch district. Value addition of 34% was notionally fixed by Notification 16/2008-CE for the commodities manufactured by the respondents. The said notification also provided for determination of special rate by the Commissioner of Central Excise in a situation where the actual value addition was more than the deemed value addition of 34%. As a consequence of the said amendment the incentive was reduced from refund of the entire of the duty paid in cash/PLA to 34% of the total duty paid, in so far as the respondents are concerned. Thus the respondents suffered a loss to the extent of 66% of the duty paid, which it was hitherto entitled to as refund; 9.2.2 From 03.09.2008 the notional value addition of the products manufactured by the respondent was capped at 75%. The respondents hence suffered detriment to the extent of 25% of the duty paid, which it could not seek as refund; 9.2.3 The amendment made to Notification 39/2001 by the Notification No. 16/2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2008 clearly show that the Government itself has jettisoned the concept of value addition, introduced with effect from 27.03.2008, in as much as for finished goods whose starting raw material was a natural product/mineral, and therefore subject to NIL input stage duty, the refund in respect of final products using such inputs was fixed at an arbitrary rate of 75% of the duty paid, without option of a special rate, irrespective of the supposed value addition; 9.6 Mere misuse of the exemption notification by some of the manufacturers cannot justify the withdrawal of incentive since there is an adequate machinery available with the Revenue under the Central Excise Act and under the notification itself, to curb, deduct, as well as punish the offenders for any such misuse, otherwise the Revenue would suffer adverse consequences for no fault of theirs. It is submitted that the notification itself specifically provides for recovery of refunds along with interest if such refunds were wrongly claimed/granted. It is submitted that therefore the so-called object and purpose for issuing the impugned notification is irrational and arbitrary and as such cannot be a ground to withdraw the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority or power of the officer of the Government or of the public authority to make . There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. In our opinion, the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be present to the mind of the court, while considering the applicability of the doctrine. The doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to act in the public interest while issuing or modifying or withdrawing an exemption notification under Section 25(1) of the Act. Thus, it can be seen that this Court has specifically and clearly held that the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the objective to be achieved and the public good at large. It has been held that while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must forever be present to the mind of the court, while considering the applicability of the doctrine. It is further held that the doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation. It is further held that an exemption notification does not make items which are subject to levy of customs duty etc. as items not leviable to such duty. It only suspends the levy and collection of customs duty, etc., wholly or partially and subject to such conditions as may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court in the case of Kasinka Trading (supra), a similar view has been taken and it has been observed that public interest requires that the State be held bound by the promise held out by it in such a situation. But this does not preclude the State from withdrawing the benefit prospectively even during the period of the Scheme, if public interest so requires. Even in a case where a party has acted on the promise, if there is any supervening public interest which requires that the benefit be withdrawn or the scheme be modified, that supervening public interest would prevail over any promissory estoppel. 11.5 In the case of Shree Sidhbali Steels Ltd. (supra), in paragraphs 32 and 33, it has been observed and held as follows: 32. The doctrine of promissory estoppel is by now well recognised and well defined by a catena of decisions of this Court. Where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the learned counsel appearing on behalf of the respective original writ petitioners-respondents herein are concerned, once it is held that the subsequent notifications/industrial policies impugned before the respective High Court are clarificatory in nature and it does not take away any vested rights conferred under the earlier notifications/industrial policies, none of the decisions relied upon shall be applicable to the facts of the case on hand. CASE LAW ON RETROSPECTIVITY/CLARIFICATORY 13. In the case of State Bank of India v. V. Ramakrishnan (2018) 17 SCC 394, it is observed and held that the presumption against retrospective operation is not applicable to declaratory statutes. For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. 13.1 In the case of State of Bihar v. Ramesh Prasad Verma (2017) 5 SCC 665, it is observed and held that any legislation or instrument having force of law, if clarificatory, declaratory or explanatory in nature and purport, will have retrospective operation especially in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thod and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as pointed out by the United States Supreme Court in Secretary of Agriculture v. Central Roig Refining Company [94 L Ed 381 : 338 US 604 (1950)] be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibiliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ization paid by CENVAT credit. The same was subject to conditions that it will be applied to the new industrial units, i.e. the units which are set up on and after the publication of the said notification in the Official Gazette, i.e. not later than 31.07.2003. The notification was modified from time to time. However, during the operation of the earlier notifications, it was noticed that the provision of granting refund of cash paid portion of duty and eligibility of credit the entire amount of duty to the buyers of such excisable goods had prompted certain unscrupulous manufacturers to indulge in different types of tax evasion tactics. It was revealed on analysis of cases booked by the Excise Department and even the representations received from the Industry Association about misuse of exemptions granted by the Government, which was meant to be available only for genuine manufacturers. It was noticed as under: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as. The entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption/refund of excise duty paid was to provide such exemption only to actual value addition made in the respective areas. As it was found that there was misuse of excise duty exemption it was considered expedient in the public interest and with a laudable object of having genuine industrialization in backward areas or the concerned areas, the subsequent notifications/industrial policies have been issued by the Government. Therefore, the subsequent notifications/industrial policies impugned before the respective High Courts were in the public interest and even issued after thorough analysis of the cases of tax evasion and even after receipt of the reports. The earlier notifications were issued under Section 5A of the Central Excise Act and even the subsequent notifications which were issued in public interest and in the interest of Revenue were also issued under Section 5A of the Central Excise Act, which can not be said to be bad in law, arbitrary and/or hit by the doctrine of promissory estoppel. 14.2 The purpose of the original scheme was not to give benefit of ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive High Courts as such provide the manner and method of calculating the amount of refund of excise duty paid on actual manufacturing of goods. The notifications impugned before the respective High Courts can be said to be providing mode on determination of the refund of excise duty to achieve the object and purpose of providing incentive/exemption. As observed hereinabove, they do not take away any vested right conferred under the earlier notifications. The subsequent notifications therefore are clarificatory in nature, since it declares the refund of excise duty paid genuinely and paid on actual manufacturing of goods and not on the duty paid on the goods manufactured only on paper and without undertaking any manufacturing activities of such goods. 15. In view of the above and for the reasons stated above and once it is held that the subsequent notifications/industrial policies which were impugned before the respective High Courts are clarificatory in nature and are issued in public interest and in the interest of the Revenue and they seek to achieve the original object and purpose of giving incentive/exemption while inviting the persons to make investment on establishing th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
