2015 (8) TMI 1481 - HC - Central Excise

Area based exemption - fiscal benefits as have been notified in the Government Notification No. 1 (10)/2001-NER, dated 7-1-2003 and Notification No. 49/2003, dated 10-6-2003 and Notification No. 50/2003, dated 10-6-2003 - Inclusion of Khasra No. 115-M, 24-Aa, 41-M, 42-M, 31, 39, 40, 45-M, 149-Da, 161-B, 25-B, 161-M total area 1.127 hectares of village Shivlalpur, Tehsil, Kashipur Ramnagar, District Nainital in the No. 50, dated 10-6-2003 issued for the units carrying on the industrial activities in non-industrial areas. HELD THAT - Insofar as the khasra numbers of the petitioner s unit and the petitioner s unit are concerned, they do not find mention either in the original Notification or in the amended Notification dated 19-5-2005. It is quite clear that the petitioner cannot claim the benefit of the said Notification. The Learned Senior Counsel for the petitioner does not dispute that a notification under the Excise Act is the species of subordinate legislation. Petition dismissed.

Issues Involved:
1. Legality of the exclusion of the petitioner's Khasra numbers from the Notification No. 50/2003.
2. Applicability of the doctrine of promissory estoppel.
3. Validity of the representation and subsequent rejection by the Government.
4. Impact of the previous judgment on the current petition.
5. Legality of the impugned Circular regarding recovery during the pendency of litigation.

Detailed Analysis:

1. Legality of the exclusion of the petitioner's Khasra numbers from the Notification No. 50/2003:
The petitioner's unit, established in 1986, sought inclusion in the Notification No. 50/2003 to avail of excise exemptions. The Notification dated 10-6-2003 was area-based and specified locations eligible for exemptions. The petitioner's Khasra numbers were not included in the original or amended notifications. The Government of Uttarakhand had recommended inclusion of the petitioner's Khasra numbers in 2004, but a high-level meeting in February 2005 streamlined the process, ensuring no net increase in notified areas. The final list submitted on 15-2-2005 did not include the petitioner's Khasra numbers, leading to the rejection of the petitioner's representation.

2. Applicability of the doctrine of promissory estoppel:
The petitioner argued for the application of promissory estoppel based on communications from the Excise Department indicating potential eligibility for exemptions. However, the court noted that promissory estoppel requires a promise from a competent authority. The communications from the Excise officials did not constitute a binding promise. Furthermore, the petitioner's understanding of entitlement was based on a recommendation rather than an actual notification, which is insufficient to claim exemption.

3. Validity of the representation and subsequent rejection by the Government:
The petitioner's representation was considered and rejected by the Government on 5-7-2011, stating that the petitioner's Khasra numbers were not recommended by the State Government in the final list submitted before the amended notification. The court found that the rejection was based on the streamlined process agreed upon in the high-level meeting, and the petitioner's Khasra numbers did not meet the criteria for inclusion.

4. Impact of the previous judgment on the current petition:
The petitioner had previously filed a writ petition seeking similar relief, which was disposed of based on another judgment (Writ Petition (MB) No. 628 of 2005). The court had not granted the relief of inclusion of Khasra numbers, and the petitioner did not seek a review or appeal of that judgment. The court held that the earlier judgment barred the current petition under the principle of res judicata, as the relief sought was impliedly refused.

5. Legality of the impugned Circular regarding recovery during the pendency of litigation:
The Circular dated 1-1-2013, which allowed for recovery during the pendency of litigation, was challenged in the second writ petition. Given the dismissal of the main writ petition, the court found no reason to keep the second writ petition pending and closed it accordingly.

Conclusion:
The court dismissed the main writ petition (Writ Petition (MB) No. 1 of 2015) on all grounds, including the legality of the exclusion of the petitioner's Khasra numbers, the applicability of promissory estoppel, and the validity of the representation rejection. The secondary writ petition (Writ Petition (MB) No. 2 of 2015) was also closed, as it was contingent on the outcome of the main petition. No costs were ordered.

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