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TMI Blog1985 (11) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 8/79, viscose staple fibre was exempted from so much of the C.V.D. leviable under Section 3 of the Customs Tariff Act as was in excess of Rs. 1.32 paise per kg. 2.1. Both notifications ended with the sentence, This notification shall be in force up to and inclusive of the 31st December, 1979". 3-8-1979 The appellants opened an irrevocable Letter of Credit in respect of a consignment of viscose rayon staple fibre for which they placed an order with a Japanese supplier. 17-10-79 The suppliers issued their invoice covering shipments of the goods ordered 30-10-79 Bill of Lading for shipment of the above goods was issued by the steamer agents 30-10-79 Amending Notification No. 208/79 under Section 25, Customs Act, was issued by the Government of India in the Ministry of Finance, Department of Revenue. This notification amended Notifications No. 6/79 and 8/79 by substituting the date 31st day of December, 1980" for the earlier date 31st December, 1979". The notification also amended Notification No. 8/79 by substituting the words 2.37 paise per kg. for the words 1.32 paise per kg. . In other words, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. 6. The other case which was against the appellants was that of Hindustan Spinning and Weaving Mills v. Union of India and Another [1984 (17) E.L.T. 281 (Bom.)]. In that judgment the Bombay High Court had occasion to deal with the same notifications which are the subject-matter of the present case. The Hon ble High Court had held that estoppel could not be pleaded because of the theory that there could be no estoppel against the operation of the statute. The High Court had therefore not accepted that promissory estoppel was attracted to the facts of the case. As regards this judgment Miss Anjali Bahl submitted that it would also stand overruled by the judgment of the Supreme Court in the Godfrey Philips case. 7. Miss Anjali Bahl submitted that the judgment of the Hon ble Supreme Court in the Godfrey Philips case was strongly in favour of the appellants. That was a case which related to the inclusion of secondary packing in the form of Corrugated Fibreboard Containers ( C.F.C. ) in the assessable value of cigarettes. In that case the Cigarette Manufacturers Association had represented that the cost of the C.F.C. would not be includible in the assessable value. This plea w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants. She accordingly submitted that the appeal should be allowed and consequential refund directed to be made. 10. The Bench enquired from Miss Anjali Bahl whether any orders were placed by the appellants for the importation of viscose staple fibre yarn after they had come to know of the amendment made by Notification No. 208/79, dated 30-10-1979. She replied that they did effect some imports subsequently, but they also made purchases from Indian manufacturers. She submitted that there were disputes with the Customs authorities in regard to the subsequent importations also, and writ petitions relating to those importations were still pending in the Calcutta High Court. 11. Replying on behalf of the Collector, Shri Tripathi submitted that there was no dispute regarding the facts. According to him, the applicable rate of C.V.D. on the goods with effect from 30-10-1979 was Rs. 2.37 per kg. He referred to Section 15 of the Customs Act, which lays down that the rate of duty applicable to any imported goods shall be the rate in force on the date on which a Bill of Entry in respect of such goods is presented under Section 46. Since, in the present case, the Bill of Entry was present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i submitted that the appeal should be rejected. 18. Miss Anjali Bahl made a brief reply in which she submitted that the modification of the concessional rate of C.V.D. could not be justified on the ground of public interest. This modification had been made on 30-10-1979, when the original notification had only two more months to run. According to her, there could not be any acceptable reason for not allowing the notification to run its due course. 19. We have given our careful consideration to the arguments advanced in this case, which raises an interesting and important question as regards the doctrine of promissory estoppel and the extent to which it can find application in an order passed by the Tribunal. As was very fairly pointed out by the learned Advocate for the appellants, there are two High Court decisions which would be relevant to this case and are against the appellants. We first take up the judgment of the Andhra Pradesh High Court in the case of Feno-Plast Pvt. Ltd. (vide para 5 above). That case related to P.V.C. resins. In that case also there was an exemption notification in which it was stated that This notification shall be in force up to and inclusive of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to import licences in terms thereof. It was, therefore, held that the Textile Commissioner who enunciated the scheme, was bound by the terms thereof and obliged to carry out the promise made thereunder. In the present case, neither the notification is of an executive character, nor did it represent a scheme designed to achieve a particular purpose. It was a notification issued in public interest and again withdrawn in the same public interest. So far as the decision in M.P. Sugar Mills v. State of A.P.-A.I.R. 1979 S.C. 621 is concerned, the relevant facts are totally different. There was a good amount of correspondence between the State and the petitioners therein, and a clear promise was made that for a particular number of initial years, the industry will be exempted from sales-tax. But, when the State sought to levy the sales-tax, it was held by the Supreme Court that, in view of the categorical representation made by the State to the petitioners therein it was precluded from doing so and that, it was bound to exempt the petitioners from the provisions of the Sales-tax Act, in accordance with the representation made by it." 20. Miss Anjali Bahl had argued that the above decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in Motilal Sugar Mills case (supra) and we find ourselves wholly in agreement with what has been said in that decision on this point. 21. The findings of the Hon ble Andhra Pradesh High Court to which reference has been made in paragraph 19 above are quite consistent with the latest and most authoritative statement of the law by the Hon ble Supreme Court in the Godfrey Philips case. We, therefore, do not think that the weight of the judgment of the Hon ble Andhra Pradesh High Court as a precedent is affected merely because reference was also made in that judgment to the decision in the case of Jeet Ram Shivkumar. 22. The second case to which Miss Anjali Bahl drew our attention was that of Hindustan Spinning and Weaving Mills (vide paragraph 6 above). As pointed out earlier, in that case the Hon ble Bombay High Court was concerned with the very notifications which are before us in the present case. In this judgment reliance was placed on the decision of the Hon ble Delhi High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the period 24th May, 1976 to 2nd November, 1982. It would be must inequitable to allow the Excise Authorities to assess excise duty on the basis that the value of the cigarettes manufactured by the respondents should include the cost of corrugated fibre board containers. When it was clearly represented by the Central Board of Excise and Customs in response to the submission made by the Cigarette Manufacturers Association-and this representation was approved and accepted by the Central Government-that the cost of corrugated fibre board containers would not be includible in the value of the cigarettes for the purpose of assessment of excise duty. Here also the assessees had followed a particular practice in the light of a specific representation or assurance from the Government. Several years later. Government took a different view and sought to recover the duty foregone during the earlier period. 24. The facts of the present case are materially different. The only representation in this case was that contained in the date, namely 31-12-1979, specified in Notification No. 208/79. It has not been shown to us that there was any correspondence between the Government and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest. Though a faint suggestion to this effect is made in some of the writ petitions, no such argument is addressed before me. The petitioners, it must be noticed did not start the industry because of, or in the light of the said exemption. They are manufacturers of certain products requiring P.V. resins as partly imported from abroad. It is not the case of the petitioners that only because of the exemption notification they placed orders abroad and that, but for the said notification, they would have purchased it in the home-market at a lesser price. I am, therefore, of the opinion that the exemption notification cannot be made a basis for founding a promissory or equitable estoppel, and the Government should not be bound by its notifications once issued, and that it should be left free to modify or rescind them as and when the public interest so demands. This power of exemption is granted to the Government with a view to enable it to regulate, control and promote the industries and industrial production in the country. In the latter case the Hon ble High Court had referred to the following observations of the Hon ble Delhi High Court in the case of Jain Shudh Vanaspati Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly, no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. The relief as framed by the appellant in his writ petition does not bring out the real issue calling for determination. In reality he wants this Court to direct the Government to delete the entry in question from Schedule A and include the same in Schedule B. Article 265 of the Constitution lays down that no tax can be levied and collected except by authority of law. Hence the levy of a tax can only be done by the authority of law and not by any executive order. Unless the executive is specifically empowered by law to give any exemption, it cannot say that it will not enforce the law as against a particular person. No court can give a direction to a Government to refrain from enforcing a provision of law. Under these circumstances, we must hold that the relief asked for by the appellant cannot be granted. Again, it has been clarified that Government cannot be debarred by promissory estoppel from enforcing a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India. It represents a principle evolved by equity to avoid injustice and, though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is the interposition of equity which has always, true to its form, stepped in to mitigate the rigour of strict law. 28. In their path-breaking judgment in the M.P. Sugar Mills case, the Hon ble Supreme Court had thus recognized the pioneering role of Lord Denning in evolving the doctrine of promissory estoppel : There can be no doubt that the decision of Lord Denning in the High Trees case represented a bold attempt to escape from the limitation imposed by the House of Lords in Jorden v. Money (supra) and it rediscovered an equity which was long embedded beneath the crust of the old decisions....and brought about a remarkable development in the law with a view to ensuring its approximation with justice, an ideal for which the law has been constantly driving." Lord Denning himself, in Crabb v. Arm DC [(1976) 1 Ch 179] has this to say about the doctrine : The basis of this proprietary estoppel-as indeed of promissory estoppel- is the interposition of equity. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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