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TMI Blog1991 (1) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... port duty on the goods in question was exempted upto 31st March, 1981. During this period the petitioner entered into a contract with an American Company on 9th July, 1980 as well as on 16th July, 1980 for supply of the said goods to the petitioner, for which purpose the petitioner opened letters of credit through State Bank of India, Rajajinagar, Bangalore. The goods arrived in India during November and December, 1980. The Customs Department demanded duty thereon purporting to relied upon a Notification dated 16th October, 1980 (Annexure D). As per this Notification the earlier Notifications were superseded, on the Central Government being satisfied that it was necessary in the public interest so to do and exempted the goods in question when imported into India from so much of the duty of customs as in excess of 40% ad valorem. The result is the import duty payable was 60% of the prescribed rate. The petitioner paid the same under protest and cleared the goods. Thereafter, the petitioner applied for refund of the two sums of Rs. 92,617.31 and Rs. 99,570.32. The refund applications were rejected and have thus become the subject-matter of this Writ Petition. 4. The contention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action to file the Writ Petition arose in Karnataka. 8. "Cause of action" means every fact which, if traversed, it would be necessary for the petitioner to prove in order to support its claim for the relief; it is a bundle of essential facts and any one of the essential facts, if located within the State, High Court's jurisdiction may be invoked. But, the existence of the petitioner as a legal person and that the petitioner is carrying on its activity within the State, by themselves, are not part of this bundle of facts. 9. Article 226(2) of the Constitution is clarificatory in nature. Even though the respondents seat of power or residence is outside the State, still a High Court may issue the writs against such a respondent, if any part of the cause of action arises within the said High Court's territorial jurisdiction. This clarification was necessitated by the decision of Supreme Court in Election Commission, India v. Saka Venkata Rao (AIR 1953 S.C 210), wherein it was held that seat of Election Commissioner being outside Madras State, Madras High Court could not issue any writ to the Election Commissioner, even though, the cause for the action arose in Madras State. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no jurisdiction to entertain and dispose of the petitions in so far as they relate to the Bharatpur contract." In the matter of: Bharat Sugar Mills Ltd. and Another [AIR 1984 Calcutta 102 = 1984 (18) E.L.T. 725 (Cal.)] is also instructive. The Central Government fixed the prices of levy sugar in respect of Sugar Mills. Petitioner's Sugar Mills were in Bihar State; the office of the petitioner Company was in Calcutta. Challenging the fixation of sugar price, writ petition was filed in Calcutta, which was dismissed as not maintainable. The petitioner's contention is found at page 103 which reads : "It has been submitted by Mr. Bajoria, learned Advocate for the petitioner that this order was published in the Gazette of India which also appeared in the State of West Bengal and the office of this Sugar Mill is situated at R.N. Mukherjee Road within the territorial jurisdiction of this Court and the petitioner has got a licence to sell sugar under the Sugar Licensing and Control Order. It has also been submitted that this Mill has a godown within the State of West Bengal wherefrom the Mill sells sugar to the various retailers. It has been further submitted that some of the shareholde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alcutta High Court on the ground a part of the cause of action arose in West Bengal by the service of notice. This contention which seem to have been accepted by Calcutta High Court was reversed by the Supreme Court. Mere service of notice to acquire the land was held as not part of the cause of actions entitling to invoke the writ jurisdiction at Calcutta. 12. The fact that the petitioner Company is located within this State has no relevancy at all to constitute a 'cause of action' to challenge the levy of customs duty at Bombay. The 'cause of action' arose entirely outside Karnataka. The preliminary objection raised by the learned Counsel for the Central Government has to be accepted. Since, arguments were addressed on the merits of the case, I consider it proper to express myself on the said question also. Regarding Point No. 2 : 13. In Indian Express Newspaper (Bombay) Private Ltd. and Others etc., etc. v. Union of India and Others (AIR 1986 S.C 515) Supreme Court did not express a definite opinion as to whether the power to exempt under Section 25 is a legislative power or a simple executive power. The decision commencing at page 541 (para 71 of the AIR) shows that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sufficient to show a distinct and noticeable burdensomene, clearly and directly attributable to the taxes" (words highlighted here). This idea permeates the subsequent discussions also. If the exercise of the power under Section 25 is a legislative power - be that as a delegatee or in any other capacity - then, the said power cannot be curtailed by the doctrine of promissory estoppel. Estoppel cannot operate against statute; this principle governs all kinds or flavours of estoppel. In Union Of India and Others v. Godfrey Philips India Ltd. - AIR 1986 S.C 806 at 815 = 1985 ) E.L.T. 306 (S.C) the principle is stated thus : "Of course we must make it clear and that is also laid down in Motilal Sugar Mills case (AIR 1978 S.C 621) (supra), 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 enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember of the executive seeks to deprive a citizen of his right or liberty other wise than in exercise of power derived from the law - common or statute - the Courts will be competent to, and indeed would be bound to, protect the rights of the aggrieved citizen." In view of the enforceability of the terms of the Scheme, relief was granted to the claimant, of the benefit under the scheme. In Century Spinning and Manufacturing Company Ltd. and Another v. The Ulhasnagar Municipal Council and Another (AIR 1971 S.C 1021) the petitioner invoked the doctrine of promissory estoppel, on the basis of the alleged representation made by the Municipal Council to the petitioner. The matter, on merits, was not decided by the Supreme Court. Pournami Oil Mills, etc. v. State of Kerala and Another - AIR 1987 S.C 590 = 1987 (27) E.L.T. 594 (S.C), again, is similar to Dharmendra Trading Company's case (AIR 1988 S.C 1247). The industrial undertakings set up during the period when the exemption order was in force, were held to be entitled to the benefit; the Supreme Court had no occasion to consider the validity of the withdrawal of the order by a subsequent Notification. At page 593, it is observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of public revenue and the public interest. The concept of public interest is incapable of precise definition. Customs duty has a bearing on the international trade and commerce and in levying duty on import of any particular goods, the Parliament (including the Government) may consider the international situation, foreign market-conditions, trade agreements with foreign Countries, requirements of this Country and many such other factors. Similar factors would influence the exercise of power under Section 25 also. Every importer and exporter is aware of fast changing situations in international trade. The risk of fluctuating prices and other elements affecting an import-trade is known to all importers. 17. In the very nature of things, the Government cannot keep alive the benefit of an exemption Notification to govern the purchase agreements entered into during the existence of the Notification, issued under Section 25; if the Government were to be compelled to grant such a benefit, situations would develop wherein for years together, the exemption may have to be kept alive. It will be inequitable to compel the Government to keep alive an exemption Notification, indefinitely to e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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