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TMI Blog2022 (3) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... e entitled to get concession - thus, it is apparent from the record that case is distinguishable from the earlier case, in view of the fact that three Khasra nos. in respect whereof prayer has been made in this case were in fact included in Annexure No. II to grant of tax benefits. Thereafter, the subsequent notification came, which excluded three Khasra Nos. included in Annexure II 2003 Notification. In the meantime, as per the notification dated 28.06.2004, the Income Tax Department of the Government of India has extended the tax holidays benefit under Section 80IC (2) (a) of the Income Tax Act, 1961 to these particular Khasra Nos. After the publication of 2005 Notification, the Income Tax Department had also published another Notification dated 26.04.2006, though which is not a part of the writ petition but copy whereof is supplied today in the Court, whereby the Income Tax Department had not changed the tax holiday benefit extended to the aforesaid khasra numbers meaning thereby tax holiday benefit remained unaltered and untouched for the aforesaid four Khasra Nos. The Hon ble High Court of Himachal Pradesh has quoted the case of MRF LTD. VERSUS ASSISTANT COMMISSIONER ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atia, learned counsel for the State / respondent no. 4 ORDER Upon hearing the learned counsel for the parties, the Court made following order (Per Sri Sanjaya Kumar Mishra, ACJ) 1. Petitioner has approached this Court seeking following reliefs: i. To issue a writ or order in the nature of Certiorari quashing the directions of the respondent no. 6 give vide letters dated 28.09.2005 and 03.10.2005 in so far as they deny the benefit of exemption to the petitioner s existing unit and directing the petitioner to deposit Central Excise duty as applicable with interest w.e.f. 19.05.2005 (Anneure No. IX X). ii. To issue a writ or order in the nature of Mandamus, directing the respondent no. 2 to reinstate Khasra Nos. 148D, 176B, 173B 176A in village Chandrabani Khalsa, Mohobewala industrial area, Dehradun in Annexure II to the Notification 50/2003 CE dated 10.06.2003 with retrospective effect. iii. To issue any other writ or direction, which this Hon ble Court may deem fit and proper in the circumstances of the present case. 2. This writ petition was earlier disposed of along with a batch writ petitions by this Court vide order dated 19.12.2006 whereby t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industry, Department of Industrial Policy and Promotion by which fiscal incentives were declared for the States of Uttaranchal (now Uttarakhand) and Himachal Pradesh. ii. On 10.06.2003, the Central Excise Notification No. 50/ 2003 CE was issued. iii. On 15.10.2003, the petitioner substantially expanded its installed capacity by 1 million watches from existing capacity of 2 million watches with total capacity aggregating to 3 million watches. iv. On 28.06.2004, Income Tax Notification No. 177 / 2004 was issued. v. On 22.12.2004, Office memorandum recognizing exemption claim of the petitioner was issued. vi. On 04.03.2005/ 18.08.2005/ 08.09.2005, petitioner exchanged correspondences with the respondent no. 6 in respect to proposed activity to be carried on Khasra No. 148 B 149B. vii. On 19.05.2005, the Central Excise Notification No. 27/2005 was issued. viii. On 02.07.2005/15.07.2005, Industries Department represented before respondent no. 1 for correction of anomaly created by Notification 27/2005. ix. On 28.09.2005/ 03.10.2005, petitioner was directed by respondent no. 6 to deposit Central Excise Duty as applicable with interest w.e.f. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose two Khasra numbers in the Notification dated 10.06.2003, the same would tantamount to expansion of the policy, which the Court cannot do. The effect of such direction would be doing something which the Court is not competent to do. In the circumstance, this Court observed it was constrained to hold that although, it appears to us that Khasra Nos. 60 (Ka) and 61 were not incorporated in Annexure No. II to the Notification dated 10.06.2003 for the blunder on the part of the State in furnishing appropriate information to the Union of India, but we are incompetent to incorporate the same in the said notification, particularly, in view of the fact that the when the said mistake was pointed out, the Central Government agreed to give advantage to new industrial units situated on the said Khasra nos. by incorporating Annexure No. III to the Notification dated 10.06.2003 by the amendment effected on 19.05.2005. The Division Bench dismissed the petition. 6. However, we find that present case and earlier decided case of M/s Sant Steel (supra) are distinguishable in view of the fact that Khasra Nos. 148D, 176B, 173B 176A belonging to the petitioner were included in the exempted list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a detailed report vide his letter C. No. TITAN/EXEMPT,NOTIFI./R-DDN/03/2839 dated 06.12.2004 (ANNEXURE-21) that aforesaid Dynamic Test Equipment was inwarded in their Factory s register on 01.12.2003 at Sl. No. 1330 (ANNEXURE-22). Since the party had not installed Dynamic Test Equipment from 15.10.2003 to 01.12.2003, hence claim of the party that they have expanded their installed capacity from 2000000 watches per annum to 3000000 watches per annum is not correct for the period from 15.10.2003 to 01.12.2003. Show Cause Notices for the period from 15.10.2003 to 01.12.2003 have already been issued to the party. As per the Statement (ANNEXURE-11) of Chartered Engineer, installed capacity of the unit of the party has been increased from 2000000 watches per annum to 3000000 watches per annum after having installed machineries namely Semi Auto PPE Line (01 No.), W/R Testing Machines (02 Nos.), Dynamic Test Equipment (01 No.) Manual Assembly in the various stage of production namely Casing, Water Resistance, RT Strapping respectively. Since Dynamic Testing Equipment was installed in the unit of the party on 01.12.2004 after having transferred from their unit situated at Housur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Himachal Pradesh has quoted the case of MRF Ltd. Vs. Assistant Commissioner and others (2006) 8 SCC 702, wherein it has been held by Hon ble Supreme Court that where a right has already accrued, for instance, the right to exemption of tax for a fixed period and the conditions for that exemptions have been fulfilled then the withdrawal of exemption during that fixed period cannot affect the already accrued right. It was also held that in those cases, the principle of promissory estoppel does not apply if it is shown that there is overriding public interest. In that case the overriding public interest would prevail. In Shrijee Sales Corporation Vs. Union of India, (1997) (89) E.L.T. 452 (SC) it was held by Hon ble Supreme Court that it is only in superior public interest that the Government may withdraw the representation or promise held out by it, even though someone having acted upon the representation or promise has adversely affected himself. It was also held that the Court has to be satisfied about the existence of such superior public interest, when not enforcing principle of promissory estoppel against the Government or the State on the plea of superior public intere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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