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TMI Blog1992 (3) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 71 of 1987. By the said Notification No. 246 of 1988 the exemption regarding the items including the Auto Coner Machine was extended till 31st March, 1990. 4. By a Notification No. 159 of 1988 dated 13th May, 1988 Auxiliary Duty in respect of the exempted items was made nil. 5. The writ petitioners took steps for importation of an Auto Coner Machine from a German Firm, named Carl Myor sometime in the month of February, 1989. The writ petitioners' case is that these steps were taken upon the exemption Notification dated 13th September, 1988 being made applicable to Auto Coner Machines. 6. On the 1st of March, 1989, however, by a Notification issued on that day and numbered 108 of 1989 the Auxiliary Duty in respect of the machine in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re cleared by the writ petitioners upon the warehousing procedure by executing the usual bond, undertaking to pay duty as might be applicable on a later date when the goods would be actually cleared from the warehouse. 11. By an order of the Appeal Court dated 26th September, 1989 goods were cleared upon cash deposit of Rs. 7 lakhs with the 2nd respondent and upon furnishing of Bank Guarantee to the Customs Authorities to the extent of Rs. 4,39,800/-. In case the writ petitioners succeed, the relief today would take the shape of return of the Cash security and discharge of the Bank Guarantee as the goods have already been cleared. 12. Mr. Samir Chakraborty argued the case of estoppel on behalf of the writ petitioners. He said that after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss change, appropriate changes in duty or tax would have to be made. Theoretically the change in tax or duty is a subordinate legislative function, but in practice, it takes the shape of an executive function. It is true that under Article 265 of the Constitution, the imposition of revenue is a legislative function, and that subordinate imposition in this regard, below the level of the legislature itself, has to take the shape of subordinate legislation, and cannot be promulgated as an executive order. But in the way the subordinate legislation goes on in these fields of Sales-tax, Excise or Customs, such legislation partakes of a certain day to day hub and activity, which is more of the nature of executive function; it far less resembles t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legated body. 17. In the case of Indian Rayon Corporation and Ors. v. Collector of Customs reported in 1987 (27) Excise Law Times page 626, Justice Sudhir Ranjan Roy said in His Lordship's Judgment at paragraphs 49, 50 and 51 that there can be no promissory estoppel against exercise of legislative power by the legislature or by its delegate. With the greatest of respect to the Learned Judge, I am bound to follow the above Supreme Court decisions in preference thereto and accordingly I am unable to follow Justice Roy's decision in this regard. Paragraph 44 of the said Judgment of Justice Roy is reproduced below :- "Mr. Roy Chowdhury, in this connection referred to the decision of Supreme Court in Narinder Chand v. Lt. Governor, Administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law making authority. The Court shall neither legislate nor interfere with legislation which - affects each and every one. However, the Court shall step in and relieve against the applicability of general laws in particular instances in case an appropriate situation exists for grant of such relief. Accordingly, the cases relied on by Mr. Bhattacharjee in the case of Feno Plast Pvt. Ltd. Anr. v. Union of India Anr. reported in 1984 (17) Excise Law Times page 97 and Netai Mohan Saha v. Collector of C. Ex. Customs, reported in 1989 (43) Excise Law Times page 44 are not authorities which go against relief being granted to the writ petitioners in this case. In those two cases, it has been held, as I respectfully read the said cases, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arises because of the tax and is equally applicable to all then the same has to be borne. But if the financial hardship arises not merely because of the tax or the change in duty or tax but because also of actions undertaken by an individual on the basis of duty situations previously prevailing, then and in that event, the circumstances might call for relief, as has been held to be so in the several cases referred to above. 23. In view of the foregoing authorities and in view of the fact that in this case the import was clearly arranged to be made in a situation where the incidence of tax was less by Rs. 12 lakhs in a total import cost of Rs. 28 lakhs, to my mind it cannot but be said that the writ petitioner altered its position and took ..... X X X X Extracts X X X X X X X X Extracts X X X X
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