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TMI Blog1986 (3) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding. 2. The part of Notification No. 268/82 as germane for this case is reproduced below :- NOTIFICATION No. 268/82 - Central ExciseS, DATED 13-11-1982 GSR. 693 (E). In exercise of the powers conferred by Sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts tyres (excluding tubes and flaps) falling under Item No.16 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from so much of the duty of excise leviable thereon under Section 3 of the said Act as is in excess of the amount calculated at the rate of seventy-five per cent of the rate of duty leviable on such tyres under the said First Schedule, read with any Notification issued under sub-rule (1) of rule 8 of the said rules and in force for the time being: Provided that such tyres are manufactured in a factory which is a new industrial undertaking licensed under Section 11 of the Industries (Development and Regulation) Act, 1951 (65 of 1951), and from which the clearances of tyres are effected for the first time during the period commencing on the 1st day of April, 1976, and ending with the 31st day of March, 1984: Provided further that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending with the 31st day of March, 1984. Thus, the petitioner claims that it is entitled to have the concession for a period of 7 years with effect from 25-1-1984, under the doctrine of promissory estoppel. This concession is referred to in the prospectus and indeed, it is averred, 'in view of this excise duty concession extended by the Notification duly issued under R8(1) of the Excise rules, the petitioner applied for an industrial licence for setting up an undertaking for the manufacture of tyres and tubes for two wheelers and three wheelers'. On the strength of the said industrial licence and relying upon the Notification which assured the petitioner of the excise duty concession, the petitioner made a public issue of capital on 15-7-1983 through a prospectus, dated 6-6-1983. In the said prospectus, excise duty concession to which the petitioner was entitled under Notification No. 268/82 was also set out as the incentive and concession available to the company. Through in the counter, the petitioner was put to strict proof of these averments, the learned Counsel for the respondents never challenged these statements. Even otherwise, the petitioner's typed set contains documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of the Notification undoubtedly points out that the exemption is for a period certain, to wit, seven years from the date of first clearance of tyres from any factory. The manner in which Explanation I is couched, is a clear pointer to the fact that the concession was stipulated for a period of seven years from the date of first clearance. It may be useful to notice that according to Explanation I, while computing the period of 7 years from the date of first clearance, the period from 1-4-1980 to 23-4-1981 should not be taken into account. Hence, I am to reiterate that the concession is available for seven years since the date of first clearance as claimed by the petitioner. 4. The next important question is whether the respondents are entitled to rescind such concession even during the said period of seven years. Immediately I hasten to hold that the Government has power to rescind any concession that was extended to a party, save in cases where the promissory estoppel intercepts in favour of the party to whom the concession was given. To my advantage, I have the latest pronouncement of the Supreme Court in Union of India v. Godfrey Philips India Ltd. [1985(22) E.L.T. 306 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule (2) to make a special order in the case of each of the respondents granting the same exemption, because it could legitimately be said that, having regard to the representation made by the Cigarette Manufacturers' Association, there were circumstances of an exceptional nature which required the exercise of the power under sub-rule (2) of Rule 8. The Central Government and the Central Board of Excise and Customs were therefore clearly bound by promissory estoppel to exclude the cost of corrugated fibre-board containers from the value of the goods for the purpose of assessment of excise duty for the period May 24, 1976 to November 2, 1982." In that case, the Supreme Court expressed the view that what has been laid down in Motilal Padampat Sugar Mills v. State of U.P. [1979(2) SCC 409] represents the correct law in regard to the doctrine of promissory estoppel, while it expressed its disagreement with the observations in Jit Ram v. State of Haryana [1981(1) SCC 11] subject to reservation that there can be no promissory estoppel against the Legislature in the exercise of its legislative functions, nor can the Government or public authority be debarred by promissory estoppel from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the manufacture of tyres and tubes for two wheelers and three wheelers, but also made a public issue of capital indicating in the prospectus about the excise duty concession. In other words, had it been made clear that these concessions are not time bound, it might be, the petitioner would not have ventured in applying for an industrial licence for setting up an undertaking for the manufacture of tyres and tubes for two wheelers and three wheelers. I have already extracted a part of Paragraph No.6 in the affidavit of the petitioner and also to the fact that the petitioner was only put to strict proof of these averments. The facts in this case project a stronger case than the above cited case to invoke the application of promissory estoppel. There is also the authoritative pronouncement by the Supreme Court that the rule of promissory estoppel was applicable against the Government as well. 5. To the same effect is the decision of a Full Bench of Bombay High Court reported in Tapti Oil Industries v. State of Maharashtra [1984(2) ECC 307]. Nevertheless, the learned Counsel for the respondents invited my attention to Bombay Conductors Ltd. v. Government of India (1986 E.L.T. 87), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e doctrine of promissory estoppel. Secondly, the petitioner has stated in Paragraph No.9 of the affidavit filed in support of this petition that :- "Under this Notification (88/84) the petitioner became entitled to claim excise duty exemption not merely to the extent of 50% of the value of the plant and machinery installed upto 25-1-1984 but also on additional 30% of the value of the plant and machinery installed after that date and upto 31-3-1984." In other words, as rightly pointed out by the learned Counsel for the petitioner, it was an additional advantage made available to the petitioner under Notification No. 88/84. The respondents in Paragraph No.9 of their counter purport to counter the above averments of the petitioner. All that is stated is :- "To the points raised in Para 9 of the writ affidavit is concerned, Notification No. 88/84 was issued on 6-8-1984, by the Central Government in exercise of the powers conferred on it under Rule 8(1) of the Central Excise Rules. Therefore the contention of the petitioners that on 6-4-1984, another order of exemption was issued, is not correct." There is no denial that an additional benefit was made available to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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