9911796707
TMI Blog1989 (3) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries, Government of West Bengal. The processing unit of your petitioner is situated at No. 141, Surendra Nath Banerjee Road, Calcutta and various items of machineries are required by its aforesaid activities. 3. The Joint Chief Controller of Imports Exports, Government of India issued an Import License to the petitioner being Import License bearing No. P|C|2077276|C|XX|84|C|82 for import of Divomat Mini Film developing machine process : Kodak C-41, 1000 mm tankheight, including automatic replenishment and 5 hangers, 4 pcs. reservoirs with 30 lit each and wall bracket, solenoid valve and water filter for nitrogen, economic nitrogen control, compressor for air, etc., true copy of the letter is annexed as Annexure 'B 4. Heading No. 84.66 of the First Schedule to the Customs Tariff Act, 1975 (hereinafter referred to as Tariff Act ) provides, inter alia, that all items of machinery instruments, apparatus and suppliances, auxiliary equipments, etc., which require for initial setting up of an unit or substantial expansion of an existing unit of a specified industrial plant or specified project shall be liable to Customs Duty at the rate of 60 per cent. The said Heading N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for substantial expansion of its colour laboratory. A copy of the letter, dated 16th November, 1981 addressed by the Director, Small Industries Service Institute, Ministry of Industry, Government of India is annexed hereto in this connection and marked with the letter C . In the said letter it was mentioned, inter alia, that the said machineries/equipments would be eligible for assessment under Item No. 84.66 of the First Schedule to the Tariff Act. 8. The petitioner duly placed order for import of only one machine, namely Divomat Mini Film developing machine process: Kodak C-41, 1000 mm tankheight, including automatic replenishment and 5 hangers, 4 pieces reservoirs with 30 lit each and wall bracket, solenoid valve and water filter for nitrogen, economic nitrogen control, compressor for air and the said machine has been shipped by the foreign supplier. A copy of the relevant Invoice for the import of the said machine it also annexed hereto and marked with the letter D . 9. The petitioner vide its letter, dated 20th August 1982 duly applied to the Assistant Collector of Customs for registration of the Contract in accordance with the provisions of Tariff Act. A copy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Heading No. 84.66. All necessary formalities in this connection were duly complied with by the petitioner. A copy of the said bill of entry is annexed hereto and marked with letter H . 13. The said Bill of Entry with endorsement made by Respondent No. 2 at the back of it dated 2.4.83 and all other documents were returned by the Respondent to the petitioner. A copy of the Bill of Entry with the endorsement made on the back of it, which reads as under : The file No. S37C (misc) 324/82A is not readily available in the Section as mentioned by the dealing assistant. But from the documents provided by the party it appears that this case for registration was not allowed earlier vide letter No. F.N. S37/C (misc) 324/82A dated 16.10.82. So this Bill of Entry cannot be assessed under Project Import holding 84.66. 14. The petitioner states that the Respondent No. 2, by its two purported Orders, dated 16th of October, 1982 and 2nd of April, 1983 refused to register the said Contract and refused to permit clearance of the goods on payment of duty under Heading No. 84.66. 15. The petitioner states that even the Director of Cottage and Small Scale Industries, Government of We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er examining and scrutinising all relevant facts and after being satisfied in the matter issued the said licences to the petitioner by making endorsements thereon to the effect that the said licences were being issued for import under the project import scheme for assessment under Heading No. 84.66 of the Tariff Act. The authorities concerned of the Government of India as well as the Government of West Bengal have repeatedly informed the respondent Customs Authorities that the said machineries imported by the petitioner would be eligible for assessment under Heading No. 84.66 and that the petitioner's said unit is an industrial unit falling within the purview of the said Heading No. 84.66. Inspite of the aforesaid the Customs Authorities are wrongfully and illegally seeking to deny the said lawful and legitimate claims of the petitioner. The petitioner states that the Customs Authorities have no right, authority or jurisdiction to go beyond the endorsement made by the Licencing Authority of the Government of India that the goods covered by the licences in question would be entitled for assessment under Heading No. 84.66 of the Tariff Act. The said decisions of the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No. 2, dated 16th October, 1982 and 2nd April, 1983 and all purported proceedings relating thereto are wholly without jurisdiction and/or in excess of jurisdiction and/or authority and/or illegal void and of no effect and/or vitiated by errors of law apparent on the face of the records and are liable to be set aside and/or quashed. 22. The Respondent No. 3 being the Joint Chief Controller of Imports and Exports has filed an Affidavit-in-opposition. However at the time of hearing none has appeared on behalf of the Respondent No. 3. It is their case that on the basis of the recommendation given by the Sponsoring Authority that Director of Cottage and Small Scale Industries, Government of West Bengal, the Joint Chief Controller of Imports and Exports made an endorsement on the Import Licence in terms of paragraph 174 (2) of the Hand Book of Import and Export Procedures AM 1983, that merely on the strength of the recommendation of the Director of Cottage and Small Scale Industries, Government of West Bengal, the Respondent No. 3 has made the necessary endorsement and that the Respondent No. 3 does not admit that the Joint Chief Controller of Import and Exports have accepted an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Imports and Exports being the wings of the Government of India assured and represented to the present petitioner that their unit was an Industrial Plant and that the machineries imported were eligible for concessional duty under the heading No. 84.66 of the Customs Tariff Act and that when under the relevant paragraph of the Hand Book of Import and Export Procedure A.M. 83 the necessary endorsement has been made by the Respondent No. 3 in the Import Licence that the petitioner is entitled to the concessional rate of duty under Heading No. 84.66 of the Customs Tariff, then the Customs Authority being another wing of the Government of India is bound by promissory estoppel not to act otherwise as because of such representation made by those departments of the Government of India, the petitioner imported the machineries and thus altered his own position to his detriment and the Customs Department is thus estopped from claiming the higher rate of import duty and from refusing to register the contract under Heading No. 84.66. 27. The Hand Book of Import and Export Procedures A.M. 1983 which is the handbook relevant for the purpose of these imported machinery in paragraph 174 reads t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been issued to the Collector of Customs. However, the said letter which is in continuation in the previous letter, dated 17.5.1982 in conclusion states as follows: The case is recommended and you are requested to kindly look into the matter and see that the unit can get the faculties of concessional duty, if eligible. 31 (a). This letter of recommendation of the Sponsoring Authority clearly indicates that the petitioner would be entitled to get the concessional duty only if it is eligible for the same. 32. After the Import Licence has been obtained, the petitioner wrote the letter, dated August 20, 1982 vide Annexure 'E' to the writ petition to the Assistant Collector of Customs for the registration of the contract for the purpose of the Heading No. 84.66 of the Customs Tariff. The relevant portion of the said letter being the 3rd paragraph clearly shows that the petitioner requests the Customs Department to let them know whether the contract can be registered in their department on the basis of the endorsement given by the Licensing Authority on the license and the due benefit given in terms of Tariff Item No. 84.66. In that letter the petitioner never claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Deputy Director of Chemicals of the Government of India, Ministry of Industry (Department of Industrial Development), Small Industry Service instituted. That letter has been addressed by the Deputy Director Chemicals of the above department to the writ petitioner intimating the petitioner that they have since been advised by the Development Commissioner, Small Scale Industries by the letter, dated March 2, 1983 that import of machinery under the policy of project import is regulated as per the provision of para 177 page 37 of the Hand Book, the Import and Export Procedure 1983. It is also intimated to the petitioner by the Deputy Director that the Colour Film Laboratory is considered as an industry by the Government. 37. This letter of the Government of India does not give any assurance or representation that as soon as the machineries under the said project is imported, the petitioner will be entitled from the Customs Department the necessary facilities of concessional rate of duty under Heading 84.66 of the Customs Tariff. 38. I have already indicated that the Hand Book of the import and export procedure itself has stated that the Customs Department may consider the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct a .legal relationship to arise in the future, knowing or, intending that it would be acted upon by other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be in equitable to allow him to do so having regard to the dealing which have taken place between the parties and these would be so irrespective of whether there is any pre-existing relationship between the parties or not. It has also been clearly held that the doctrine is enforceable even against the Government notwithstanding the fact that there is no contract executed in the form required by Article 299 of the Constitution or that there is no consideration for the promise. 40. The Supreme Court in Jitram Shiv Kumar case has also applied the principle but has laid down four exceptions in the following terms, namely, (i) The plea of promissory estoppel is not available against the exercise of the legislative functions of the State. (ii) The doctrine cannot be invoked for preventing the Government from discharging its functions under the law. (iii) When the Officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sales to tax if it felt impelled to do so in the interest of the Revenues of the State and there can be no question of estoppel against the Government in the exercise of Legislative, sovereign and executive powers. 42. On behalf of the Respondent, a decision of the Learned Single-Judge of Bombay High Court in Indoglass Private Ltd. and Ors. v. Union of India and Ors., 1982 E.L.T. 135 has been cited where it has been held as to whether a particular item is chargeable under a particular Heading of the Central Excise Tariff was the exclusive jurisdiction of the Concerned Authority and it is well settled that there cannot be any estoppel against the statute and the Authorities deciding the application of the statute cannot be bound by any directions of trade notice issued by the Government and that the quasi-Judicial Authorities are not bound to classify a product on the basis of the trade notice nor the contents of trade notice can conclude the ambit of the Tariff item. 43. Thus considering this case of all its aspects I am of the view that neither the Respondent No. 1 nor the Respondent No. 2 is bound by any promissory estoppel in this particular case and it was within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, because according, to the said extended meaning, it must be something, which represents capital invested in the means of carrying on business exclusive of its raw materials or the manufactured product. 47. The machinery imported by the petitioner would come within the definition of plant . That the laboratory of the petitioner is an industrial plant has been seriously disputed by the Respondent and it is contended that the photographic establishment and laboratory of the petitioner is neither as industry nor an industrial plant to attract Heading No. 84.66. It is contended that the dictionary meaning of the word industry indicates that the manufacturing activity is an important indicia to determine whether a particular establishment would be an industry and if there is no manufacturing activity or production it would not be an industry within the meaning of that term. It is therefore urged that when the laboratory of the petitioner is engaged in processing the Film and not in manufacturing any product, it is not an industry. My attention has been drawn to a decision of the Customs Tribunal reported in 1982 (17) ELT 443 Photo Visual, Calcutta v. Collector of Customs, Calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Tariff reads thus- 84.66 All items of (a)................ (b)................ (c)................ (d) Auxiliary equipments, as well as all components (whether finished or not) or raw materials for the manufacture of the aforesaid items and their components, required for the initial setting up of a unit, or substantial expansion of an existing unit, of a specified : (1) Industrial Plant, (2) Irrigation Project, (3) Power Project, (4) Mining Project, (5) Project for the exploration for oil or other minerals, and (6) Such other projects as the Central Government may, having regard to the economic development of the country, notify in the Official Gazette in this behalf: Provided these are imported (where is one or in more than one consignment) against one or more specific contracts which have been registered with the appropriate Customs House in the manner prescribed by Regulations which the Central Board of Excise and Customs may make Under Section 157 of contract or contracts has or have been so registered before any order is made by the proper Officer of Customs permitting the clearance for home consumption, or deposit in a warehouse ..... 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