2010 (12) TMI 1182 - HC - Central Excise

Area based exemption - N/N. 11/2007-C.E., dated 1-3-2007 and No. 21/2007-C.E., dated 25-4-2007 - setting up of industrial unit in Northeastern Region - N/N. 32/99-C.E. and 33/99-C.E., dated 8-7-1999. Held that - By a legislative mandate, the N/Ns. 32/99-C.E. and 33/99-C.E., dated 8-7-1999 corresponding to G.S.R. 508(E) and G.S.R. 509(E) stood amended retrospectively in the manner as specified in the Ninth Schedule with the predication that notwithstanding anything contained in any judgment, decree, or order of any Court, tribunal or other authority, any action taken or anything done or purported to have been taken or done under the said notifications would be deemed to be and always to have been, for all purposes, as validly and effectively taken or done as if those notifications as amended had been in force at all material times. Sub-section (4) of that section also authorised recovery of all amounts of duty or interest or other charges which have not been collected or refunded but which ought to have been collected and ought not to have been refunded had the new section been enforced at all material times within a period as specified therein. the challenge to the notifications dated 1-3-2007 and 25-4-2007 based on Policy 1997 cannot be sustained. A contrary intention being apparent from Section 154 of the Finance Act, 2003 read with Schedule 9 thereto as well as the notifications issued after the Policy 1997 curtailing/regulating from time to time the exemptions from payment of excise duty as contemplated by the said Policy, I am of the unhesitant opinion that the petitioner too is not entitled to any protection under Section 38A of the Act. There is no discernible conflict in the approach of the Respondent authorities in promulgating the policy, 2007 or issuing the impugned notification. No mala fide or extraneous consideration is also decipherable. Petition dismissed - decided against petitioner.

Issues Involved:
1. Withdrawal of fiscal incentives under the new industrial policy in the Northeastern Region.
2. Application of promissory estoppel and legitimate expectation doctrines.
3. Validity of the impugned notifications dated 1-3-2007 and 25-4-2007.
4. Interpretation of Policy 1997 and Policy 2007.
5. Applicability of Section 38A of the Central Excise Act, 1944.
6. Delay and suppression of material facts by the petitioner.

Issue-wise Detailed Analysis:

1. Withdrawal of Fiscal Incentives:
The petitioner challenged the withdrawal of fiscal incentives under the new industrial policy in the Northeastern Region, specifically the exemption of duty under the Central Excise Act, 1944, for its manufactured items of "pan masala" and other tobacco products. The petitioner sought invalidation of the impugned notifications and restoration of the concession with all consequential benefits.

2. Application of Promissory Estoppel and Legitimate Expectation:
The petitioner argued that the withdrawal of the exemption was arbitrary and unwarranted, violating the doctrines of promissory estoppel and legitimate expectation. The petitioner claimed to have set up its manufacturing units based on the assurance of excise duty exemption for ten years, and the sudden withdrawal of this benefit disrupted its business plans and investments.

3. Validity of the Impugned Notifications:
The respondents defended the notifications as being in public interest, asserting that the exemption did not achieve the intended industrial development and resulted in heavy refunds due to excise duty exemptions. The respondents also cited the Finance Act, 2003, which inserted Section 154, retrospectively amending the exemption notifications and withdrawing the benefits for certain tobacco products.

4. Interpretation of Policy 1997 and Policy 2007:
The petitioner contended that under Policy 2007, industrial units that commenced production on or before 31-3-2007 should continue to receive the benefits under Policy 1997. The respondents countered that Policy 2007 included a negative list of industries ineligible for benefits, which included "pan masala" and tobacco products, thus justifying the withdrawal of the exemption.

5. Applicability of Section 38A of the Central Excise Act, 1944:
The petitioner argued that Section 38A protected its right to the exemption. However, the court found that Section 154 of the Finance Act, 2003, along with subsequent notifications, indicated a contrary intention, thereby nullifying the applicability of Section 38A in this context.

6. Delay and Suppression of Material Facts:
The respondents challenged the maintainability of the writ petitions on the grounds of delay and suppression of material facts, arguing that the petitioner had been paying excise duty post the impugned notifications and had not disclosed this fact. The court, however, found that the petitioner had made persistent representations to the authorities and that the delay did not vest any rights in the respondents that would be prejudiced by adjudicating the issues on merits. The court also concluded that the non-disclosure of the payment of excise duty did not amount to suppression of material facts affecting the merits of the case.

Conclusion:
The court dismissed the petitions, concluding that the challenge to the notifications dated 1-3-2007 and 25-4-2007 based on Policy 1997 could not be sustained. The court found that a contrary intention was apparent from Section 154 of the Finance Act, 2003, read with Schedule 9 thereto, as well as the subsequent notifications. The petitioner was not entitled to protection under Section 38A of the Act, and the doctrines of promissory estoppel and legitimate expectation were not applicable in this context. The court also found no discernible conflict in the approach of the respondent authorities or any mala fide or extraneous considerations.

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