TMI Blog1992 (2) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... business of manufacturing Vanaspati and Refined oil. The raw material for the manufacture of Vanaspati is Palm oil, Ricebran oil, Rapeseed oil, Mustard oil, Soyabean oil, Sesame oil, Cotton Seed oil, Solvent Extracted oil, etc. According to the affidavit filed in support of this writ petition, the Central Government was originally supplying the raw materials through the State Trading Corporation of India till the control was lifted and now the oil price is fixed according to the fluctuation of the oil market by the manufacturers That in exercise of the powers conferred under Rule 57K of the Central Excise Rules, 1944, the Government of India issued a Notification bearing No. 27/87-C.E., dt. 1-3-1987 allowing money credit on the usage of minor oils in the manufacture of Vanaspati falling under sub-head 1504 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); and the grant of credit and the utilisation is subject to the rights and terms of the Notification issued under Rule 57K and subsequently the said Notification dt. 1-3-1987 appears to have been amended by the Notification No. 192/87-C.E., dt. 12-8-1987. The petitioner would claim that by virtue of the notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the Notification rescinding the earlier Notification dt. 1-3-1987 and 12-8-1987 cannot be applied retrospectively so as to deny the petitioner of his vested rights, which accrued in favour of the petitioner. A plea based on estoppel from preventing the petitioner from utilising the credit already earned and accrued to his credit on the basis of the earlier Notification Nos. 27/87 and 192/87 has also been raised. 3. The respondents have filed a counter affidavit in WMP No. 18672/89 and crave leave of this court to treat the counter affidavit filed in the main writ petition itself. According to the counter affidavit filed by the respondents, in the year 1987, the Central Government introduced a new scheme called 'Credit of Money Scheme' by insertion of Section AAA in Chapter V of the Central Excise Rules, 1944 by the Central Excise (First Amendment) Rules, 1987 issued under Notification No. 25/87-C.E., dt. 1-3-1987 and the said scheme is similar to the MODVAT Scheme, introduced by the Government earlier. Under the scheme in question, the credit is not equal to the excise duty paid on inputs, but it is to be calculated at a specified rate and the rate at which the cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in Delhi Bottling Company Limited case in C.W.P. No. 3032/87 (Vide order dt. 30-10-1987) is relied on for the said purpose. (b) The doctrine of promissory estoppel claimed by the petitioner is not applicable, since, according to the respondents, there was no promise by the Prime Minister or Finance Minister in the Parliament to the industry that the scheme in question will continue for a specified period. There cannot be any estoppel against the legislative powers of Centre and States and in this connection the decision in Black Diamond Beverages v. Union of India [1988 (36) E.L.T. 225 (Cal.)] is relied upon. (c) The applicability of Section 6(c) of the General Clauses Act is disputed to the situation under consideration and it is claimed that the General Clauses Act, 1897 would apply only when the Act or Rules are repealed, and the principles therein would not ensure in respect of case of notification granting or withdrawing the 'Credit of Money Scheme' issued under Rule 57K of the Rules. The Credit of money granted is said to be concession and the right of the Government to withdraw the same at any time cannot be questioned by the petitioner. (d) It is also conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless statutory provision so provides or by necessary implication it has such an effect, and inasmuch as the Notification No. 39/89-C.E.(N.T.), dt. 25-8-1989 merely rescinded the earlier Notifications and not the Rules themselves, the only consequence would be that from the date on which, the said Notification came to be rescinded, the manufacturers concerned cannot claim to earn the benefit of credit of money, while manufacturing their final products by using the oil concerned, but at the same time they cannot be deprived of their right to use credit of money which they had earned validly. The learned Judges of Gujarat High Court also placed reliance on the fact that Rules 57N had continued to be on the statute, a book and that the said rule confers a right to use the credit already earned. 9. In the Modern Mills Ltd. v. Union of India [1991 (55) E.L.T. 148], the Karnataka High Court has held that the accumulated credit earned would not cease the moment the notification is rescinded and that principle of promissory estoppel applies to such a situation. 10. In Jayaprakash Match Works, Kovilpatti v. Union of India [1983 (12) E.L.T. 58] a Division Bench of the Madras High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Tan India Ltd. v. U.O.I. [1991 (55) E.L.T. 170] S. Ramalinga, J. expressed the view that the exemption from excise duty can be granted only by exercise of statutory power, and the statement of the Hon'ble Minister on the floor of the House of Legislature, does not have the effect of automatically making it a law, muchless statutory Law. 15. The question for my consideration in the present case as projected by the petitioner is not so much as to the competency or the authority of the Government of India to rescind or withdraw a scheme or concession granted. Equally it is not the contention for the petitioner that the Government having once exercised its discretion by formulating a scheme or granting an exemption or concession, is precluded by the principles of promissory estoppel from going behind the same or taking a different view prospectively. The real question for my consideration is whether the notification issued on 25-8-1989 rescinding the earlier notifications has the effect of depriving the petitioner of the credit earned and the benefit which accrued to him during the period when the scheme was in force. None of the decisions relied on for the Revenue has any releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly contended for the respondents that if appraoched the respondents would themselves have granted the relief that is now sought for before this court or would have allowed the petitioner to avail of the credit already earned by them, particularly having regard to the stand taken before this court that in view of the Notification dt. 25-8-1989 rescinding the earlier notifications, the petitioner is not entitled to avail the credit even already earned by them. 18. So far as the question of the nature of the relief granted to the petitioner is concerned, the prayer for quashing the Notification No. 39/89-C.E.(N.T.), dt. 25-8-1989 cannot be granted inasmuch as the Government of India cannot, in my view, be precluded from prospectively exercising the statutory powers to grant exemption or withdraw the exemption. Having regard to the nature of the relief sought for and the conclusion arrived at by me, the issue of a direction in the nature of writ of mandamus directing the respondents to allow the petitioner to avail of the credit legitimately earned by the petitioner in terms of the relevant notification prior to 25-8-1989 will issue. The writ petition will stand ordered in the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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