Bajaj Auto Ltd. V. Union of India through Secretary, Ministry of Commerce and Industry, Government of India, New Delhi and others

SPA/625/2014

AI Insights

Bajaj Auto Ltd. filed a writ petition seeking exemption from the payment of NCCD and related cesses, arguing that they were entitled to benefits under the industrial policy and Notification No. 50/2003 CE, which provided for a 100% excise duty exemption for ten years from the commencement of commercial production in certain industrial areas. The Union of India contested this, pointing out that NCCD is not covered under the said Notification as it is a separate levy under the Finance Act of 2001. The High Court agreed with the Union's position, leading to the dismissal of Bajaj Auto's appeal.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 694979 (HC-UTTARAKHAND)
• Appeal Type: Others
• Pronouncement Date: 16-03-2017
• Assessment Year: misc
• Other Referred Cases: Manuelsons Hotels Pvt. Ltd. vs. State of Kerala, SVA Steel RE-Rolling Mills Ltd. vs. State of Kerala, Devi Multiplex vs. State of Gujarat, State of Punjab vs. Nestle India, Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh, Lloyd Electric and Engineering Limited vs. State of Himachal Pradesh, State of Bihar and others vs. Suprabhat Steel Ltd. and others, State of Jharkhand and others vs. Tata Cummins Ltd., Monnet Ispat and Energy Limited vs. Union of India and others, Banswara Syntex Ltd. vs. Union of India, Vipore Chemicals Pvt. Ltd. vs. Union of India, Loyal Textile Mills vs. Jt. Secretary, MF, TVS Motor Co. Ltd. vs. CCE, Mysore, Commissioner of Customs (Import), Mumbai vs. Konkan Synthetic Fibers, Commissioner of Central Excise, Shillong vs. North-Eastern Tobacco Co. Ltd., Associated Cement Companies Ltd. vs. State of Bihar, CCE, Ahmedabad V. Orient Fabrics Pvt. Ltd., J.K. Synthetics Ltd. V. Commercial Taxes Officer, Indian Carbon Ltd. and others vs. State of Assam, Hansraj Gordhandas v. CCE and Customs, Civil Appeal No. 1654 of 2008
• Laws Referred To: Central Excise Act, 1944, Finance Act, 2001, Additional Duties of Excise (Goods of Special Importance) Act, 1957, Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, Central Excise Tariff Act, 1985
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: H M BHATIA
• Assessee Lawyers: ARSHAD HIDAYATULLAH; MAKRANT JOSHI; PUJA BANGA
• Keywords: Excise duty exemption; Implementing notification; Industrial Policy; NCCD; Promissory Estoppel
• Section: 5A; 3(3); 136

Judgement Text

"Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL SPECIAL APPEAL NO. 625 of 2014 Bajaj Auto Ltd. ….…..Appellant. Versus Union of India through Secretary, Ministry of Commerce and Industry, Government of India, New Delhi and others. ………..Respondents. Mr. Arshad Hidayatullah, Senior Advocate assisted by Mr. Makrant Joshi and Ms. Puja Banga, Advocate for the appellant. Mr. H.M. Bhatia, Advocate for respondent nos. 2 to 4. Dated: 16.03.2017 Coram: Hon’ble K.M. Joseph, C.J. Hon’ble Alok Singh, J. K.M. Joseph, C.J. Appellant is the petitioner. The writ petition was filed seeking the following reliefs: “A. An appropriate writ order or direction that this Hon’ble Court declaring that the petitioners are entitled to avail of the exemption under Notification No. 50/2003 dated 10th June 2003 in respect of the exemption contained therein from the levy of the duty of excise known as NCCD for a period of ten years calculated from the date of commencement of commercial production by the Petitioners; B. To issue a writ of prohibition or an appropriate writ direction or order prohibiting the Respondent No. 3 and / or 4 from adopting any proceedings pursuant to impugned show cause notice dated 26th August 2011 and to quash the impugned show cause notice dated 26th August 2011; C. To issue a writ of mandamus or an appropriate writ direction or order directing Respondent No. 3 and / or 4 from taking any steps in furtherance or in implementation of the impugned show cause notice dated 26th August 2011;” 2. Appellant is a company mainly engaged in the manufacture of 2/3 wheeler motor vehicles; the vehicles are chargeable to excise duty 2 under the Central Excise Act, 1944 (hereinafter referred to as the Act). 3. On 7th January, 2003, the Prime Minister visited Uttaranchal from 29th to 31st March, 2002. He made certain announcements that Central Excise concessions will be made to attract investments in the industrial sector for certain special categories of States, including the State of Uttaranchal. Annexure – 1 dated 07.01.2003 to the writ petition further bears out that discussions were held with various related Ministries / Agencies. The Office Memorandum under the head 3.1. relating to fiscal incentive reads as follows: “3.1 Fiscal Incentives to new Industrial Units and to existing units on their substantial expansion: (1) New industrial units and existing industrial units on their substantial expansion as defined, set up in Growth Centres, Industrial Infrastructure Development Centres (IIDCs), Industrial Estates, Export Processing Zones, Theme Parks (Food Processing Parks, Software Technology Parks, etc.) as stated in Annexure-1 and other areas as notified from time to time by the Central Government, are entitled to: (a) 100% (hundred percent) outright excise duty exemption for a period of 10 years from the date of commencement of commercial production. (b) 100% income tax exemption for initial period of five years and thereafter 30% for companies and 25% for other than companies for a further period of five years for the entire states of Uttaranchal and Himachal Pradesh from the date of commencement of commercial production. (II) All New Industries in the notified location would be eligible for capital investment subsidy @ 15% of their investment in plant & machinery, subject to a ceiling of Rs. 30 lakh. The existing units will also be entitled to this subsidy on their substantial expansion, as defined. (III) Thrust Sector Industries as mentioned in Annexure-II are entitled to similar concessions as mentioned in para 3(I) & (II) above in the entire state of Uttaranchal and Himachal Pradesh without any area restrictions.” 4. Finally, we may also notice paragraph 5, which reads as follows: “The Ministry of Finance & Company Affairs (Department of Revenue), Ministry of Agro & Rural Industries, Ministry of Textiles, Minsitry of Food Processing Industries, Ministry of Small Scale Industries, etc. are requested to 3 amend Act /rules / notifications, etc, and issue necessary instructions for giving effect to these decisions.” 5. There is no dispute that the industrial unit set up by the appellant falls in the Pant Nagar Industrial Area situated within District Udham Singh Nagar. Within a little over six months of the Office Memorandum, a notification was issued on 10.06.2006. Since much terms on the terms of the Notification, we deem it appropriate to refer to the relevant part of the same: “GENERAL EXEMPTION NO. 42 Exemption to goods other than specified goods cleared from units located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area of Uttarakhand and Himachal Pradesh.—In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of section 3 of the Additional Duties of Excise (Textiles and Txtiles Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than the goods specified in Annexure-I appended hereto, and cleared from a unit located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area, as the case may be, specified in [Annexure-II and Annexure III] appended hereto, from the whole of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts. [Provided that the exemption contained in this notification shall apply subject to the following conditions, namely:- (i) The manufacturer who intends to avail of the exemption under this notification shall exercise his option in writing before effecting the first clearance and such option shall be effective from the date of exercise of the option and shall not be withdrawn during the remaining part of the financial year;” 4 6. The exemption contained in the Notification applies for a period not exceeding 10 years from the date of publication of the Notification in the Gazette or from the date of commencement of commercial production, whichever is later. With other clauses of the Notification, we are not concerned. 7. It is the case of the appellant that they started manufacturing vehicles since April, 2007 after obtaining Central Excise Registration. Till February 2007, it is their case that neither respondent no. 3 or 4, with whom returns were filed, ever raised any objection or observation on eligibility of exemption from payment of National Calamity Contingent Duty (hereinafter referred as NCCD) or any cess thereon. However, in February, 2009, an audit took place and an issue was raised that the appellant is not entitled to exemption from payment of NCCD and the cesses thereon, which are the Education Cess and the Secondary Education Cess. Annexure 3 purports to be the Audit Objection Report. By Annexure -4 dated 27th February, 2009 and 17th March, 2009, the appellant was required to pay the NCCD and inform the particulars of such payment. Appellant responded by letter dated 25th March, 2009 (Annexure 5). Appellant again reiterated its stand by Annexure 6. It is the case of the appellant that after almost three and half years of the application for registration and after two and half years of the Audit Objection and response, appellant came to be served with Annexure-8 Show Cause Notice dated 26th August, 2011, whereby the appellant was called upon the pay NCCS and the cesses. A proposal was also made to impose an equal amount of penalty. Demand was raised for interest also and, thereupon, the appellant filed the writ petition seeking the reliefs, which we have extracted above. The learned Single Judge dismissed the writ petition. 8. We heard Sri Arshad Hidayatullah, Senior Advocate assisted by Mr. Makrand Joshi and Ms. Puja Banga, learned counsel for the appellant and Sri H.M. Bhatia, learned counsel on behalf of respondent nos. 2 to 4. 9. Sri Arshad Hidayatullah, learned Senior Counsel would submit that the appellant, acting on the basis of the policy, which 5 promised 100 percent outright excise duty exemption for a period of 10 years from the date of commencement of the commercial production, was persuaded to invest in the State of Uttaranchal. Having made the promise, as is embedded in the Office Memorandum dated 07.01.2003, which is a policy decision taken after the announcement by the Prime Minister earlier, the Notification, which we have adverted to earlier, must be read as an implementing notification. The Notification is issued to secure the object, namely, to spur growth in a backward area. Having acted upon the promise and having set up the unit in the State, it does not lie in the mouth of the respondents to make a demand for NCCD and the cesses as it would amount to allowing the respondent Authorities to go back on the promise, they have made of their being 100 percent outright excise duty exemption for a period of ten years. The unit was set up in the year 2007 and, therefore, the appellant was entitled to the benefit of the policy decision and no demand would lie. Expatiating his contention, he would submit that it will be unfair on the part of the Authorities to deviate from their proclaimed policy having induced the appellant to set up a unit by the promise, which found articulation, also, in the Office Memorandum. In this regard, reliance was placed on the judgments of the Hon’ble Apex Court in the case of Manuelsons Hotels Pvt. Ltd. vs. State of Kerala reported in (2016) 6 SCC 766, SVA Steel RE-Rolling Mills Ltd. vs. State of Kerala reported in (2014) 4 SCC 186, Devi Multiplex vs. State of Gujarat reported in (2015) 9 SCC 132, State of Punjab vs. Nestle India reported in (2004) 6 SCC 465 and Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh reported in (1979) 2 SCC 409. 10. Learned Senior Counsel would next contend that having regard to the context, in which the Notification was issued on 10.06.2003 and being an implementing Notification, it cannot go against the proclaimed policy of the Government. He relied on the judgment of the Hon’ble Apex Court in the case of Lloyd Electric and Engineering Limited vs. State of Himachal Pradesh reported in (2016) 1 SCC 560. Apparently, he seeks to support the said stand also with reference to the judgments of the Hon’ble Apex Court in the case of State of Bihar and others vs. Suprabhat Steel Ltd. and others reported in (1999) 1 SCC 6 31 and State of Jharkhnad and others vs. Tata Cummins Ltd. reported in (2006) 4 SCC 31. 11. Next, he would contend that being an implementing policy, the Notification calls for a beneficial interpretation. The Notification intends to stir, encourage and promote economic activity. Therefore, the Notification calls for a liberal interpretation. In this regard, he relied on the judgment of the Hon’ble Apex Court in the case of Commissioner of Customs (Import), Mumbai vs. Konkan Synthetic Fibers reported in 2012 (278) E.L.T. 37 (S.C.). In other words, he would submit that the ordinary rule that an Exemption Notification must be strictly construed must yield to the exceptional situation, where the Exemption Notification is geared to engender and advance economic activities. Economic activity brought about by making investments in a backward area would obviously generate employment and create wealth, which will pave the way for economic development of the State. Such Notification calls for a liberal approach, runs the argument. 12. Next, he would contend that even proceeding on the basis that NCCD being a levy is imposed under the 2001 Finance Act, having regard to the fact that it is treated as a duty of excise in addition to the excise duty, which is levied under the Act, the Notification is capable of being interpreted as embracing NCCD and the cesses within its scope. So, NCCD also falls within the four walls of the Notification. In this regard, he relied on the judgment of the Rajasthan High Court in the case of Banswara Syntex Ltd. vs. Union of India reported in 2007(216) E.L.T. 16 (Raj.), which judgment was confirmed by the Hon’ble Apex Court. Besides the same, he would also rely on the judgment of the Gujarat High Court in the case of Vipore Chemicals Pvt. Ltd. vs. Union of India reported in 2009 (233) E.L.T. 44 (Guj), judgment of the Madras High Court in the case of Loyal Textile Mills vs. Jt. Secretary, MF reported in 2012 (280) E.L.T. 8 (Mad.), and the judgment of the Kerala High Court in the case of TVS Motor Co. Ltd. vs. CCE, Mysore reported in 2013 (295) E.L.T. 42 (Ker). 13. Further Sri Arshad Hidayatullah, learned Senior Counsel would submit that the demand for interest on NCCD and other levies is 7 without jurisdiction. In this regard, he drew our attention to the terms of the Finance Act of 2001, which reads as follows: “(1) In the case of goods specified in the Seventh Schedule, being goods manufactured or produced, there shall be levied and collected for the purposes of the Union, by surcharge, a duty of excise, to be called the National Calamity Contingent duty (hereinafter referred to as the National Calamity duty), at the rates specified in the said Schedule. (2) The National Calamity duty chargeable on the goods specified in the Seventh Schedule shall be in addition to any other duties of excise chargeable on such goods under the Central Excise Act, 1944 (1 of 1944) or any other law for the time being in force. (3) The provisions of Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty, shall, as far as may be, apply in relation to levy and collection of the National Calamity duty leviable under this section in respect of goods specified in the Seventh Schedule as they apply in relation to levy and collection of the duties of excise on such goods under that At or those rules, as the case may be.” 14. He would contrast the phraseology used with regard to the Swachch Bharat Levy imposed in the year 2015 under the Finance Act. Section 119(5) of the Finance Act, 2015 reads as follows: “(5) The provisions of Chapter V of the Finance Act, 1994 and the rules made thereunder, including those relating to refunds and exemptions from tax, interest and imposition of Penalty shall, as far as may be, apply in relation to the levy and collection of Swachh Bharat Cess on taxable service, as they apply in relation to the levy and collection of tax on such taxable services under Chapter V of the Finance Act, 1994 or the rules made thereunder, as the case may be.” 15. Therefore, he would point out that on the one hand, in regard to Swachh Bharat Levy, there is express reference to interest being imposable; whereas interest is conspicuous by its absence in regard to NCCD. He would further contend that penalty after the dismissal of the writ petition has been imposed at the rate of 100 percent. He would pose the question that even proceeding on the basis that the appellant is liable to pay NCCD and other levies, having regard to the 8 facts there is absolutely no justification for imposition of penalty and, that too, at the rate of 100 percent. 16. As far as the cesses are concerned, there are two cesses. Education Cess is imposed by the 2004 Finance Act and the Secondary & Higher Education Cess is imposed by the Finance Act of 2007. The cesses are actually levied on NCCD. At the time of argument, it is the submission on behalf of the appellant that the main challenge is to NCCD and if the challenge to levy of NCCD is not upheld, then, we need not be detained by any separate argument based on the cesses. 17. Per contra, Sri Hari Mohan Bhatia, learned counsel appearing on behalf of respondent nos. 2 to 4 would distinguish the decision relied on by the appellant in the case of Manuelsons Hotels Pvt. Ltd. vs. State of Kerala reported in (2016) 6 SCC 766 and would submit that the facts are completely different. In this case, the unit is admittedly put up only in the year 2007 much after the Notification dated 10.06.2003. At the time, they put up the unit, they must be attributed with the knowledge of the specific terms of the Notification. Reading out the Notification, he would contend that it is clear as daylight that what was intended to be exempted is only the duties mentioned in the Notification payable under the Central Excise Act; NCCD is not a duty of excise payable under the Act; it is payable under the Finance Act of 2001. This being an indisputable position, he would submit that there is no scope for applying the principle of promissory estoppel based on the promise as contended by the appellant, which is, in turn, based on what is contained in Annexure-1 Office Memorandum that there will be 100 percent outright excise duty exemption. The delay, with which, the appellant has come to the Court, is frowned upon and it is contended that the appellant must be imputed with the knowledge that NCCD is not the subject matter of the Exemption Notification. He would submit that such Notification calls for a strict interpretation and in this regard, he sought to draw support from an unreported judgment of the Hon’ble Apex Court in Civil Appeal No. 1654 of 2008 dated 24.03.2015. NCCD was imposed under an earlier enactment, namely, the Finance Act of 2001 and having regard to the 9 express language of the Notification dated 10.06.2003, there can be no shadow of doubt that the Author of the Notification did not intend to cover NCCD within the scope of the Notification. 18. Considerable reliance was placed on the judgment of the Hon’ble Apex Court in the case of Manuelsons Hotels Pvt. Ltd. vs. State of Kerala reported in (2016) 6 SCC 766 by the appellant. In the said case, the Court, after adverting to case law beginning with AIR 1968 SC 718 Union of India vs. Anglo-Afghan Agencies onwards, held inter alia as follows: “19. In fact, we must never forget that the doctrine of promissory estoppel is a doctrine whose foundation is that an unconscionable departure by one party from the subject-matter of an assumption which may be of fact or law, present or future, and which has been adopted by the other party as the basis of some course of conduct, act or omission, should not be allowed to pass muster. And the relief to be given in cases involving the doctrine of promissory estoppels contains a degree of flexibility which would ultimately render justice to the aggrieved party. 20. The above statement, based on various earlier English authorities, correctly encapsulates the law of promissory estoppel with one difference – under our law, as has been seen hereinabove, promissory estoppel can be the basis of an independent cause of action in which detriment does not need to be proved. It is enough that a party has acted upon the representation made. The importance of the Australian case is only to reiterate two fundamental concepts relating to the doctrine of promissory estoppel – one, that the central principle of the doctrine is that the law will not permit an unconscionable departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of a course of conduct which would affect the other party if the assumption be not adhered to. The assumption may be of fact or law, present or future. And two, that the relief that may be given on the facts of a given case is flexible enough to remedy injustice wherever it is found. And this would include the relief of acting on the basis that a future assumption either as to fact or law will be deemed to have taken place so as to afford relief to the wronged party. 19. It is, however, necessary to advert to the facts, which led to the judgment: “On 11th July, 1986, the State Government, by a Government Order (G.O.), accepted the recommendations of the Government of India suggesting that tourism be 10 declared an “industry”. The fallout of this G.O. was that this would enable those engaged in tourism promotional activities to become automatically eligible for concessions / incentives as applicable to the industrial sector from time to time. Apart from various other concessions that were granted, exemption from Building Tax levied by the Revenue Department was one such concession. It was stated in the said G.O. that action to amend the Kerala Building Tax Act, 1975 will be taken separately. The G.O. went on to state that persons eligible for such concessions will, among others, be classified hotels i.e. from 1 to 5 stars. A Committee was set up consisting of three government officers to oversee the aforesaid scheme. Vide a Letter dated 25-3-1987, the Government of India approved the hotel project of the appellants, being a 55 double room 3 star hotel project to be set up in the city of Calicut. 2. Pursuant to the aforesaid G.O. dated 11-7-1986 and the aforesaid approval, the appellants began constructing the hotel building, which was completed in the year 1991. Notice for filing returns under the Kerala Buildings Tax Act was issued to the appellants on 5-9-1988. The appellants replied that they relied upon the G.O. dated 11-7-1986 and stated that they were under no obligation to furnish any return under the said Act as they were exempt from payment of building tax. 3. In pursuance of the said G.O. dated 11-7-1986, the Kerala Building Tax Amendment Act of 1990 was passed with effect from 6-11-1990. The Objects and Reasons for the said Amendment Act read as follows: “Statement Of Objects And Reasons The Government has declared tourism as an industry with a view to develop tourism in the State and announce various concessions to tourism related activities as per GO (P) 224/86/GAD dated 11-7-1986. One of the concessions declared by Government was to exempt the buildings constructed in relation to tourism from the provisions of the Kerala Building Tax Act, 1975. For achieving the above said purpose, the Kerala Building Tax Act, 1975 has to be amended suitably and the Government have decided to amend the Kerala Building Tax Act 1975 for the purpose. As the above proposal had to be given effect to immediately and as the Legislative assembly was not in session the Kerala Building Tax (Amendment) Ordinance, 1990 (Ordinance 8 of 1990) was promulgated by the Governor of Kerala on the 2nd day of November, 1990, and published in the Kerala Gazette Extraordinary dated 6th day of November, 1990. The Bill seeks to replace the said Ordinance by an Act of legislature. (Published in KG Ex No.1159 dated 7-12-1990)” 11 4. In pursuance of the said object, Section 3-A was added, which reads as under: “3-A. Power to make exemption:- (1) The Government may, if they consider it necessary so to do for the promotion of tourism, by notification in the gazette make exemption from the payment of building tax under the Act in respect of any building or buildings the construction of which is completed during such period and in such areas as may be specified in the notification and having such specifications as may be prescribed in the rules in this behalf.” Also, to effectuate the said exemption provision, Rule 14-A was added in the Kerala Buildings Tax Rules, 1974 as under: “14-A. (1) The exemption contemplated in Section 3-A of the Kerala Building Tax Act, 1975 shall be applicable to the buildings having the following specifications in such tourism sector and the construction of which is completed during such period as may be specified in the notifications:- (i) Classified hotels (1 to 5 stars) (ii) Motels(which conform to the specification of the Department of Tourism of Kerala/ Central Government) (iii) Restaurants (approved by Classification committee of the Government of India) (iv) Amusement parks and research centres approved by the Government. (v) Ropeways at tourist centres. (vi) Construction of structures like Koothambalam/Auditorium etc by schools/institutions teaching Kalaripayattu and traditional art forms of Kerala. (vii) Institutions teaching surfing, sking, gliding, trekking and similar activities which will promote tourism; (viii) Ayurvedic centres with tourism potential; (ix) Exclusive handicrafts with emporia (approved by the State/Central Department of Tourism) (2) The area so notified shall be approved Tourist Centres and such other locations certified by a Committee consisting of Secretary to Government, Tourism Department, Secretary to Government Taxes Department and Director, Department of Tourism. (3) The period of exemption shall be 10 years or such shorter period in respect of specific areas as may be notified in the Gazette based on the recommendation of the Committee.” 20. This led to the litigation in the High Court and finally the matter reached the Hon’ble Apex Court. Hon’ble Apex Court, no doubt, allowed the Appeal filed before it, and we think it appropriate to advert to paragraph 36: “36. In the present case, it is clear that no Writ of Mandamus is being issued to the executive to frame a body 12 of rules or regulations which would be subordinate legislation in the nature of primary legislation (being general rules of conduct which would apply to those bound by them). On the facts of the present case, a discretionary power has to be exercised on facts under Section 3A of the Kerala Buildings Tax Act, 1975. The non- exercise of such discretionary power is clearly vitiated on account of the application of the doctrine of promissory estoppel in terms of this Court’s judgments in Motilal Padampat and Nestle (supra). This is for the reason that non-exercise of such power is itself an arbitrary act which is vitiated by non- application of mind to relevant facts, namely, the fact that a G.O. dated 11.7.1986 specifically provided for exemption from building tax if hotels were to be set up in the State of Kerala pursuant to the representation made in the said G.O. True, no mandamus could issue to the legislature to amend the Kerala Buildings Tax Act, 1975, for that would necessarily involve the judiciary in transgressing into a forbidden field under the constitutional scheme of separation of powers. However, on facts, we find that Section 3A was, in fact, enacted by the Kerala legislature by suitably amending the Kerala Buildings Tax Act, 1975 on 6.9.1990 in order to give effect to the representation made by the G.O. dated 11.7.1986. We find that the said provision continued on the statute book and was deleted only with effect from 1.3.1993. This would make it clear that from 6.9.1990 to 1.3.1993, the power to grant exemption from building tax was statutorily conferred by Section 3-A on the Government. And we have seen that the statement of objects and reasons for introducing Section 3A expressly states that the said Section was introduced in order to fulfill one of the promises contained in the G.O. dated 11.7.1986. We find that, the appellants, having relied on the said G.O. dated 11.7.1986, had, in fact, constructed a hotel building by 1991. It is clear, therefore, that the non- issuance of a notification under Section 3A was an arbitrary act of the Government which must be remedied by application of the doctrine of promissory estoppel, as has been held by us hereinabove. The ministerial act of non issue of the notification cannot possibly stand in the way of the appellants getting relief under the said doctrine for it would be unconscionable on the part of Government to get away without fulfilling its promise. It is also an admitted fact that no other consideration of overwhelming public interest exists in order that the Government be justified in resiling from its promise. The relief that must therefore be moulded on the facts of the present case is that for the period that Section 3-A was in force, no building tax is payable by the appellants. However, for the period post 1.3.1993, no statutory provision for the grant of exemption being available, it is clear that no relief can be given to the appellants as the doctrine of promissory estoppel must yield 13 when it is found that it would be contrary to statute to grant such relief. To the extent indicated above, therefore, we are of the view that no building tax can be levied or collected from the appellants in the facts of the present case. Consequently, we allow the appeal to the extent indicated above and set aside the judgment of the High Court.” 21. Therefore, the learned Senior Counsel for the appellant would submit that the law has progressed to a stage, where it has employed the wednesbury doctrine and taken the view that the non issuance of the Notification under the provisions enabling exemption to be granted was an arbitrary act. The case of S.V.A. Steel Re-rolling Mills Limited and others vs. State of Kerala and others reported in (2014) 4 SCC 186, which is seen produced along with the compilation, related to an assurance given by the State for uninterrupted supply of electricity, and relying on the principle of promissory estoppel, the Court inter alia held that before laying down any policy, which would give benefits to its subjects, the State must think about pros and cons of the policy and its capacity to give the benefits. Otherwise, it would be in violation of the principles of promissory estoppel and also it would be unfair and immoral on the part of the State not to act as per its promise. 22. The case of Devi Multiplex vs. State of Gujarat reported in (2015) 9 SCC 132 is also produced alongwith the compilation, but not expressly relied on by the appellant. Announcement by the Government relating to New Package Schemes of Incentives for Tourism Projects led to the appellants seeking temporary registration, which was granted leading the appellant to begin construction of the multiplex. The Scheme promised an extension for two years subject to satisfaction of State Level Committee and further entitled the Unit to approach the Government even after the aforesaid aggregate period of four years. The Court applied the principle of promissory estoppel on the basis that once the Government makes a promise, it should enforce it notwithstanding that there is no consideration for the promise and nor is it recorded in the formal contract under Article 299 of the Constitution of India. It reiterated that the doctrine is applicable against the Government in the exercise of its Governmental, public or executive functions and the 14 doctrine of executive necessity or freedom of future executive action cannot be invoked to defeat the applicability of the said principle. 23. In the case of State of Punjab vs. Nestle India (2004) 6 SCC 465, respondents were paying purchase tax on milk. The Chief Minister of Punjab in a State level function of dairy farmers declared that the State Government had abolished purchase tax on milk and milk products in the State. It was widely published in the newspapers. In the budget speech for the year 1996-97, the Finance Minister re-affirmed the declaration of the Chief Minister and stated that such exemption will assist the milk producers and milk cooperatives. The Financial Commissioner wrote a memo to the Excise and Taxation Commissioner, who, in fact, issued a circular intimating the Field Officers that the Government had decided to abolish purchase tax on milk. The representatives of the respondent Companies stood informed about the contents of the circular. In a meeting chaired by the Chief Minister and attended by the Finance Minister and Officers, the decision to abolish was reiterated and the formal notification was to be issued. The Finance Minister further announced that the Government had abolished the tax on milk and the Finance Department formally approved the proposal of the Administrative Department to abolish purchase tax on milk. The respondent milk purchasers did not pay the purchase tax for the period 1.04.1996 to 04.06.1997. This was reflected in their returns for the year. The returns were not rejected. The respondents contended that the benefit resulting from the exemption was passed on to the dairy farmers. For the first time, after a long period, on 04.06.1997, it was cryptically recorded in the meeting of the Council of Ministers that the decision of abolishing purchase tax on milk was not accepted. Notices were issued calling upon the respondents to pay purchase tax, which resulted in filing of the writ petitions. The Hon’ble Apex Court held in view of the various provisions in the Punjab General Sales Tax Act, 1948 that the State Government had power to exempt or abolish milk as a taxable commodity. Nothing stood in the way of their doing so. It is further held that the Government cannot rely on a representation made without complying with the procedure prescribed by the relevant statute, but a citizen may and can compel the Government to do so if the factors 15 necessary for founding a plea of promissory estoppel are established. It was also found that the Government was not able to establish any overriding public interest, which would make it inequitable to enforce estoppel. We may notice in this regard paragraph 48 of the judgment, where the Court has held as follow: “48. In the case before us, the power in the State Government to grant exemption under the Act is coupled with the word “may”—signifying the discretionary nature of the word. We are of the view that the State Government’s refusal to exercise its discretion to issue the necessary notification “abolishing” or exempting the tax on milk was not reasonably exercised for the same reasons that we have upheld the plea of promissory estoppel raised by the respondents. We, therefore, have no hesitation in affirming the decision of the High Court and dismissing the appeals without costs.” 24. We may also notice paragraph 28 of the judgment: “28. This Court rejected all the three pleas of the Government. It reiterated the well-known preconditions for the operation of the doctrine: (1) a clear and unequivaocal promise knowing and intending that it would be acted upon by the promise; (2) such acting upon the promise by the promisee so that it would be inequitable to allow the promisor to go back on the promise.” 25. We may, however, also advert to the following judgment of the Hon’ble Apex Court in the case of Monnet Ispat and Energy Limited vs. Union of India and others reported in (2012) 11 SCC 1. Therein, the Hon’ble Apex Court has declared the following principles: “The following principles must guide a court where an issue of applicability of promissory estoppel arises: 1. Where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the 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 upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. 2. The doctrine of promissory estoppel may be applied against the Government where the interest of justice, mortality and common fairness dictate such a course. The 16 doctrine is applicable agaisntthe State even in its governmental, public or sovereign capacity where it is necessary to prevent fraud or manifest injustice. However, the Government or even a private party under the doctrine of promissory estoppel cannot be asked to do an act prohibited in law. The nature and function which the Government discharges is not very relevant. The Government is subject to the rule of promissory estoppel and if the essential ingredients of this doctrine are satisfied, the Government can be compelled to carry out the promise made by it. 3. The doctrine of promissory estoppel is not limited in its application only to defence but it can also furnish a cause of action. In other words, the doctrine of promissory estoppel can by itself be the basis of action. 4. For invocation of the doctrine of promissory estoppel, it is necessary for the promisee to show that by acting on promise made by the other party, he altered his position. The alteration of position by the promisee is a sine qua non for the applicability of the doctrine. However, it is not necessary for him to prove any damage, detriment or prejudice because of alteration of such promise. 5. In no case, the doctrine of promissory estoppel can be pressed into aid 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 of the officer of the Government or of the public authority to make. No promise can be enforced which is statutorily prohibited or is against public policy. 6. It is necessary for invocation of the doctrine of promissory estoppel that a clear, sound and positive foundation is laid in the petition. Bald assertions, averments or allegations without any supporting material are not sufficient to press into aid the doctrine of promissory estoppel. 7. The doctrine of promissory estoppel cannot be invoked in abstract. When it is sought to be invoked, the Court must consider all aspects including the result sought to be achieved and the public good at large. The fundamental principle of equity must forever be present to the mind of the court. Absence of it must not hold the Government or the public authority to its promise, assurance or representation.” 26. Thus, clear and positive foundation has to be laid in the petition. Bald assertions, averments or allegations without any supporting material do not suffice. The Court is obliged to also consider all aspects, including the results sought to be achieved and the public good at large. The promisee must establish that by acting on the promise made by the other parties, he has altered his position. It is not necessary 17 to prove any damage, detriment or prejudice on account of the alteration. The promise must be clear and unequivocal. It may be produced by words or held out by conduct. It must be intended to create legal relation or affect a legal relationship to arise in the future. Undoubtedly, it is not merely a defence, it also furnishes a cause of action by itself. Underlying the principle is the principle of equity and in the words of the Court in the case of Manuelsons Hotels Pvt. Ltd. vs. State of Kerala (2016) 6 SCC 766, it is based essentially on the premise that an unconscionable departure by one party from the subject matter of an assumption, be it a fact or law, present or future, which has been accepted by other party as the basis of some course of conduct, act or omission should not be permitted. 27. Firstly, we must find out, what are the pleadings before the Court in this regard. We may refer to paragraph 2, where there is reference to Memorandum dated 7th January, 2003 promising 100 percent outright Excise Duty exemption for a period of ten years besides other benefits: “1. That Respondent NO. 1, by Memorandum dated 7th January 2003 had published its Policy document (hereinafter referred to as “the said industrial Policy”) to provide a package of incentives to enable Environment of industrial development, improve availability of capital and increase market access to provide a fillip to the private investment for the states of Uttaranchal and Himachal Pradesh. As per the above said policy document the major fiscal incentives promised to new industrial units and to existing units on their substantial expansion were [a] 100 % outright excise duty exemption for a period of tenyeas from the date of commencement of commercial production and [b] 100% Income Tax exemption for initial period of five years and thereafter 30% for companies and 25% for other than companies for a further period of five years from the date of commencement of commercial production.” 28. Next paragraph is Paragraph 3, which reads as follows: “3. That in implementation of the excise duty exemption promised by the said Industrial Policy and in exercise of power conferred under Section 5A of the Act, Respondent No. 2 issued a Notification bearing No. 50/2003 CE dated 10th June 2003 (hereinafter referred to as “the Notification”) thereby granting full exemption from duty of excise levied on the goods specified in Schedule I and Schedule II of the 18 Tariff Act in respect of specified excisable goods, subject to, amongst other, the fulfillment of condition that the excisable goods are cleared by new industrial undertaking set up located in the area of the State of Uttarakhand or in the State of Himachal Pradesh, during the period of June 2003 upto 31st March 2010.” 29. We may further notice paragraphs 7 & 8 of the writ petition: “7. That the Petitioner attracted by the fiscal incentives promised by the said Industrial Policy and duly put into effect by the said Notification, set up a new Industrial Unit in the specified area of State of Uttarakhand viz. Pantnagar, Integrated Industrial Estate. 8. That it is an admitted position that the Petitioner has duly complied with all the conditions set out by the said Notification and had commenced commercial production in April 2007 i.e. well before the cut-off date of 31st March 2010.” 30. Our attention was also drawn by the learned Senior Counsel for the appellant in this regard to Grounds ‘B’ and ‘D’, which read as follows: “B. Because it is settled law that implementing Notification has to be read in the context of the Industrial Policy, when an assessee is promised with a tax exemption for setting up an industry in the backward area as a term of the Industrial Policy. (State of Jharkhand and Others vs. Tata Cummins Ltd. and Others ((2006) 4 SCC 57)). D. Because by settled law implementing notification has to be interpreted liberally and the general principle of strict interpretation of an exemption notification in taxation is not applicable.” 31. In the counter affidavit filed on behalf of respondent no. 3, we must indeed notice in regard to allegation of Paragraph-7, it is stated that the contents of Paragraph 7 need no comments. In regard to Paragraph 8, it is stated that the contents relate to record and need no comments. There is no plea of promissory estoppel, per se, which is seen raised except for perhaps what is stated in Paragraph 7, which we have adverted to already. There is no detail of any investment made and number of workers employed. In fact, on perusal of Paragraph-7, what we find is that the appellant attracted by the fiscal incentives promised by the industrial policy and duly put into effect by the said Notification, 19 a new industrial unit was set up, and there is no case for the appellant that the Notification did not adhere fully to the promise that there would be 100 % outright Excide Duty exemption. On the other hand, the averments clearly bear out our finding that the Notification is not at logger heads with the industrial policy, nor opposed with it. We must proceed, therefore, on the basis that whatever is promised in the policy finds reflection in the Notification. We also find these pleadings quite inadequate or rather non-existent to successfully found the plea of promissory estoppel. A glance at the admitted factual position may be highly relevant. The policy is dated 07.01.2003. The Notification was issued on 10.06.2003. All that is stated in the writ petition is that the petitioner has been manufacturing at the Pant Nagar Industrial Estate since April, 2007 after obtaining Central Excise Registration. We must bear in mind that an indispensable pre-requisite to found the plea of promissory estoppel is that a person must change its position acting on the basis of the promise. Can we safely conclude in the state of pleadings, which we have adverted to that the appellant has established that it was acting on the promise contained in the Office Memorandum dated 07.01.2003, namely, that there will be 100 percent outright Excise Duty exemption, that the unit was set up in the sense that it is understood by the appellant that it would cover NCCD and other cesses on the same, also as part of the Excise Duty. In this regard, we must, at once, consider the express terms of the Notification. In the Notification, reference is, no doubt, made to Section 5-A of the Act, Section 3(3) of the Additional Duties of Excise (Goods of Special Importance) Act 1957 and Section 3(3) of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. These sections are provisions, which enable Government to grant exemption. The Central Government, thereafter, it is recited on being satisfied that it is necessary in the public interest so to do, exempts the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985, other than certain goods which are excluded. The Notification is clearly an area based exemption Notification. However, the cardinal question to be posed and answered is, what does the Notification purport to exempt? It is clear as daylight that in the Notification, the Author has clearly expressed its intention to exempt the whole of the duty of excise or additional duty of excise, as 20 the case may be leviable thereon under any of the said Acts. The words “under any of the said Acts” referred necessarily to the three enactments, which we have adverted to. Therefore, the Notification is, beyond the shadow of doubt, concerned with only the Excise Duty and additional duties, which are payable under the said Acts. Is NCCD levied under any of the three Acts? The answer can only be in the negative. NCCD is imposed by the Finance Act of 2001. It is not imposed by amending the Excise Act. It may be true that in Section 136 of the Finance Act, 2001, NCCD purports to be a surcharge, which is, no doubt, mentioned as a duty of Excise. It is also true that it is provided that it shall be in addition to any other duty of Excise chargeable on such goods under the Act or any other law for the time being in force. Equally, in Section 136(3) of the Finance Act, it is provided as follows: “136. National Calamity Contingent duty.— (1) … (2) … (3) The provisions of the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty, shall, as far as may be, apply in relation to levy and collection of the National Calamity duty leviable under this section in respect of the goods specified in the Seventh Schedule as they apply in relation to levy and collection of the duties of excise on such goods under that Act or those rules, as the case may be.” 32. Therefore, we can safely proceed on the basis that the Notification does not extend the benefit of exemption from NCCD. This interpretation flows from the plain words used and there is no room for ambiguity or construction. 33. The appellant has no case that it has changed its position relying upon the policy decision dated 07.01.2003. The policy decision dated 07.01.2003 is followed up by the Notification to effectuate the policy decision is what apparently understood by the Authorities. The Notification took shape in a little over six months from the date of the policy decision. It is nearly after four years that the Industrial Unit commences the commercial production. By the time, the industrial unit was set up, in fact, the appellant must be attributed with clear notice of the express terms of the Notification, which does not provide for 21 exemption from NCCD. This is, as already noted in Paragraph 7 of the writ petition, the appellant’s case that the Notification has duly put into effect the policy. 34. Still further, we must notice that NCCD was levied by the Finance Act of 2001. The Author of the Notification must indeed be attributed with the knowledge that NCCD was a product of the Finance Act of 2001, which was an existing levy provided for by an enactment different from laws, which are expressly referred to in the Notification. Consciously, the Author of the Notification has not included the Finance Act of 2001 or NCCD in the Notification. Non-inclusion of NCCD or the Finance Act of 2001 is not made a complaint in the pleadings. 35. Had NCCD been levied by an enactment later than the Notification, it may have been open for the appellant to contend that it involves a breach of the promise contained in the policy decision of 07.01.2003. 36. In fact, the learned Senior Counsel for the appellant drew our attention to Annexure-5 communication dated 25.03.2009, which is a response of the appellant to the Audit Objection and the letter based thereon. Therein, we notice, the following statement by the appellant: “The reason for the stated non-payment of duty of excise viz. NCCD is that in fact and at law we are eligible to exemption from payment of the NCCD. It is submitted that on a true and proper interpretation of the prevailing law the NCCD is exempted under Notification No. 50/2003 CE dated 10/06/2003 as amended.” 37. Still further in the very same communication, it is mentioned that: “From the legal position explained above it is established that the exemption granted under the above said Notification No. 50/2003 CE dated 10/06/2003 from the duty levied under Section 3 of the CEA, 1944 on the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1986, stands extended to and is applicable with full force to the NCCD levied under the Finance Act 2001.” 22 38. An indispensable element to successfully found the case of promissory estoppel is that the promise must be clear and unambiguous. Its content cannot fall under the shadow of doubt. Even taking the announcement of the Prime Minister, as later embodied in the Office Memorandum dated 07.01.2003, what is stated is that there will be 100 percent outright exemption of Excise Duty. Excise Duties per se are those, which are levied under the Act. Section 3 of the Act provides for levy of Excise Duty and additional Excise Duty. There is no case for the appellant that the said Excise Duties are being demanded of them. Could it be said with certainty, therefore, that the words ‘Excise Duty’ as mentioned in the Office Memorandum dated 07.01.2003 were understood or are capable of being understood as comprehending within its scope only the duty of excise under the Act. Contrast this fact scenario with that obtaining in the case of Manuelsons Hotels Pvt. Ltd. vs. State of Kerala (2016) 6 SCC 766. Therein, the promise was clear that the building, which was put up for the purpose mentioned, would be exempted from building tax. It is the said promise, which was sought to be breached. In the cases, which have been cited, there could be no doubt about the content of the promise. 39. Therefore, we can safely conclude that the appellant cannot be permitted to raise a plea of promissory estoppel in the facts of this case based on the policy decision dated 07.01.2003 as there is neither pleading nor materials placed to support a finding that the appellant had altered its position acting on a promise as is said to be contained in the policy decision dated 07.01.2003. Is the Notification Contrary to the Policy and Whether the Notification Being An Implementing Notification is entitled to beneficial interpretation 40. In the case of Lloyd Electric and Engineering Limited vs. State of Himachal Pradesh and others reported in (2016) 1 SCC 560, on which much reliance is placed by the appellant, the question, which was raised before the Hon’ble Apex Court was, whether the appellant 23 was liable to pay Central Sales Tax at concessional rate of 1% on the inter-State sales in view of the industrial policy of the State for the period from 1-4-2009 to 17-6-2009. The appellants were beneficiaries of concessional rate till 31.03.2009. The Cabinet took a decision to extend the period of concession upto 31.03.2013 or till CST is phased out. The Department of Industries had, in fact, issued a Notification extending the concessions in terms of the policy, but the Notification was issued by the Excise and Taxation Department on 18.06.2009, whereby also concession was given beyond 31.03.2009 till March 2013 or till CST is phased out, but it was stated to be with immediate effect. In such circumstances, the Court proceeded to take the following view: “14. The State Government cannot speak in two voices. Once the Cabinet takes a policy decision to extend its 2004 Industrial Policy in the matter of CST concession to the eligible units beyond 31-3-2009, upto 31-3-2013, and the Notification dated 29-5-2009, accordingly, having been issued by the Department concerned viz. Department of Industries, thereafter, the Excise and Taxation Department cannot take a different stand. What is given by the right hand cannot be taken by the left hand. The Government shall speak only in one voice. It has only one policy. The departments are to implement the Government policy and not their own policy. Once the Council of Ministers has taken a decision to extend the 2004 Industrial Policy and extend tax concession beyond 31-3-2009, merely because the Excise and Taxation Department took some time to issue the notification, it cannot be held that the eligible units are not entitled to the concession till the Department issued the notification. 15. It has to be noted that the Finance Department of the State Government had concurred with the proposal of the Department of Industries to extend the tax concession beyond 31-3-2009 till 31-3-2013 and the Council of Ministers had accordingly taken a decision also. No doubt, the statutory notification issued by the Excise and Taxation Department under Section 8(5)(b) of the Act on 18-6-2009 has stated that the eligible units will be entitled to the concession with immediate effect. Merely because such an expression has been used, it cannot be held that the State Government can levy the tax against its own policy. The State Government is bound by the policy decision taken by the Council of Ministers and duly notified by the Department concerned viz. Department of Industries.” 41. We cannot also be oblivious to the following passages from the judgment: 24 “17. Even otherwise, it is not altogether a new concession that has been notified by the Excise and Taxation Department in the impugned Notification dated 18-6-2009. As we have noted above, it is an extension of the 2004 Industrial Policy and the resultant tax concession to the eligible units which was available upto 31-3-2009. Therefore, for all purposes, what is notified by the Excise and Taxation Department on 18-6-2009 is an extension of the said concession beyond 31-3-2009 and that is why the notification has used the expression “…for the period ending 31-3-2009” without otherwise indicating the concession already being enjoyed by the eligible units till 31-3-2009. 18. The High Court, with great respect, has gone wrong in not appreciating the background of the case and the decision of the Council of Ministers to extend its own Industrial Policy announced in 2004 and the tax concession beyond 31-3-2009. Once the Council of Ministers takes a policy decision, the implementing Department cannot issue a notification contrary to the policy decision taken by the Government.” 42. The Court, we notice, relied on the judgments of the Hon’ble Apex Court in the cases of State of Bihar vs. Suprabhat Steel Ltd. reported in (1999) 1 SCC 31 and State of Jharkhand vs. Tata Cummins Ltd. reported in (2006) 4 SCC 57. Since the appellant has also referred to the said judgments, we deem it appropriate to first advert to the judgment of the Hon’ble Apex Court in the case of State of Bihar vs. Suprabhat Steel Ltd. reported in (1999) 1 SCC 31. Therein, notification was issued under Section 7 of the Bihar Finance Act by the State Government in the Finance Department purporting to carry out the objectives and the policy decisions taken in the industrial policy itself. The question, which arose, was, whether the industrial units, which had started production prior to 1.4.1993 and whose investment in plant and machinery did not exceed Rs. 15 crores on 1.4.1993 would be entitled to facilities of sales tax exemption on the purchase of raw material for a period of seven years. The Government had introduced a new industrial policy in 1993. The Policy Resolution had been made applicable to the industrial units, which came into production from 01.04.1993 to 31.03.1998. The persons, who were aggrieved, approached the High Court of Patna seeking to quash the notification, which was issued on 04.04.1994 by way of exemption under Section 7 of the Bihar Finance 25 Act to the extent it made the old industrial units of the respondents ineligible for the facility of sales tax exemption on purchase of raw materials and direction was sought to extend the benefit of exemption. The Court took the view that reading the policy as a whole, respondent units were found entitled to the benefit of facility for a period of seven years from 01.04.1993, whereafter, the Court proceeded to hold as follows: “7. Coming to the second question, namely, the issuance of notification by the State Government in exercise of power under Section 7 of the Bihar Finance Act, it is true that issuance of such notifications entitles the industrial units to avail of the incentives and benefits declared by the State Government in its own industrial incentive policy. But in exercise of such power, it would not be permissible for the State Government to deny any benefit which is otherwise available to an industrial unit under the incentive policy itself. The industrial incentive policy is issued by the State Government after such policy is approved by the Cabinet itself. The issuance of the notification under Section 7 of the Bihar Finance Act is by the State Government in the Finance Department, which notification is issued to carry out the objectives and the policy decisions taken in the industrial policy itself. In this view of the matter, any notification issued by government order in exercise of power under Section 7 of the Bihar Finance Act, if is found to be repugnant to the industrial policy declared in a government resolution, then the said notification must be held to be bad to that extent. In the case in hand, the notification issued by the State Government on 4-4-1994 has been examined by the High Court and has been found, rightly, to be contrary to the Industrial Incentive Policy, more particularly, the policy engrafted in clause 10.4(i)(b). Consequently, the High Court was fully justified in striking down that part of the notification which is repugnant to sub- clause (b) of clause 10.4(i) and we do not find any error committed by the High Court in striking down the said notification. We are not persuaded to accept the contention of Mr. Dwivedi that it would be open for the Government to issue a notification in exercise of power under Section 7 of the Bihar Finance Act, which may override the incentive policy itself. In our considered opinion, the expression “such conditions and restrictions as it may impose” in sub- section (3) of Section 7 of the Bihar Finance Act will not authorize the State Government to negate the incentives and benefits which any industrial unit would be otherwise entitled to under the general policy resolution itself. In this view of the matter, we see no illegality with the impugned judgment of the High Court in striking down a part of the notification dated 4-4-1994.” 26 43. In the case of State of Jharkhand and others vs. Tata Cummins Ltd. and another reported in (2006) 4 SCC 57, the Hon’ble Apex Court was dealing with a case, where the Government of Bihar had announced an industrial policy to attract investments and setting up of industries in the State. The policy envisaged amongst other things sales tax exemptions to attract investment and to sustain industrial development in the State. The new units were allowed the facility of either set off or exemption at their choice, of sales tax on purchase of raw materials during the period. One of the preconditions, however, for availing the exemption was that the proprietor / partner /holding company must have exclusive ownership over the building in which the factory of the unit was located and if the factory of the unit was installed on a leased land or in a building taken on lease, the exemption was to be granted only when such land or building or both have been acquired by way of a registered lease for a minimum period of 15 years. The lease was to be in favour of the proprietor of the unit or any partner of the firm or in favour of the holding company. 44. The Court proceeded to hold as follows: “16. Before analysing the above policy read with the notifications, it is important to bear in mind the connotation of theword “tax”. A tax is a payment for raising general revenue. It is a burden. It is based on the principle of ability or capacity to pay. It is a manifestation of the taxing power of the State. An exemption from payment of tax under an enactment is an exemption from the tax liability. Therefore, every such exemption notification has to be read strictly. However, when an assessee is promised with a tax exemption for setting up an industry in the backward area as a term of the industrial policy, we have to read the implementing notifications in the context of the industrial policy. In such a case, the exemption notifications have to be read liberally keeping in mind the objects envisaged by the industrial policy and not in a strict sense as in the case of exemption from tax liability under the taxing statute. 17. Applying the above tests to the facts of the present case, the object behind enactment of the Industrial Policy, 1995 was to confer incentives on industries set up in the State. As part of the incentives, the industrial policy envisaged allotment of land / building in growth centres to companies for setting up industrial units on lease for 99 years with an option for renewal. As a part of the incentives, it was also envisaged under clause 16 that sales tax benefit / exemption shall be granted to attract 27 investments in order to sustain industrial development in the State. It is this background, that we have to consider clause 16.1 and clause 16.2 of the Industrial Policy, 1995. The two notifications are merely instruments giving effect to the policy envisaged under the Industrial Policy, 1995.” 45. It is also a case, where both the Notifications were sought to be quashed as being repugnant to the incentive policy. We may, however, also notice the following findings: “13. The facts found by the High Court are, that, after obtaining 37.19 acres of land from TELCO, out of the lands held by TELCO from TISCO under a sub-lease, TATA Cummins Ltd. established its factory in its building. The building was constructed by TATA Cummins Ltd. The industry started its production on and from 1-1-1996. TELCO was the 50% owner in the joint venture known as TATA Cummins Ltd. The object of insisting on the ownership of the building or a lease for 15 years was only to ensure that the industry did not run away after taking the advantage of the benefit granted under the policy and that the company was really a bona fide investor of capital in the industry intended to be run in the State for a reasonable length of time. It is in this background that one has to see the investment made by Tata Cummins Ltd. As stated above, Rs. 302 crores were invested by Tata Cummins Ltd. which employs more than 800 workmen and which has paid taxes of about Rs.600 crores. In the context of these facts, we are of the view that the assessee herein is not a fly-by- night operator. We are confining this judgment to the facts of the present case. The above figures are not disputed. We are satisfied on the basis of the above figures that the industry set up by Tata Cummins Ltd. will contribute to the industrial growth and development of the State.” 46. No doubt, it is thereafter, that the Court proceeded to appreciate the scheme of the policy. 47. In the context of the aforesaid case law, we must appreciate, whether there is any merit in the case of the appellant that the Notification is contrary to the policy. We have already adverted to paragraph 7 of the writ petition. Besides this, we have also referred to the correspondence indulged in by the appellant. Far from setting up a case that the Notification is opposed to be a policy, the case appears that the Notification is in consonance with the policy (an argument, which 28 we shall consider in later stage in this judgment). Indisputably, there is no challenge to the Notification. The justification for the omission to challenge is stated to be that if the appellant challenges the Notification, it would amount to questioning the benefits, which the appellant is admittedly entitled to. It is pointed out, however, that the reliefs sought by way of Prayer No. 1, namely, declaration that the appellant is entitled to the benefit of exemption under Notification in respect of levy of duty of Excise as NCCD for a period of 10 years would suffice. 48. We may also at this juncture refer to the case of Commissioner of Customs (Import), Mumbai vs. Konkan Synthetic Fibers reported in 2012 (278) E.L.T. 37 (S.C.). Matter arose in the said case under the Notification No. 17/01-Cus., dated 01.03.2001, as amended by Notification No. 44 /2001-Cus., dated 26.04.2001 and the question was, whether he was entitled to the benefit of Notification. It is a case, where the Court laid store by the opinion of the experts and, thereafter, the Court proceeded to also refer to the principle of beneficial notifications and the manner of interpreting them. Relevant paragraphs of the said case read as follows: “10. Before we discuss the issue involved, we intend to notice how this Court has construed beneficial notifications issued under the Act. In Commissioner of Customs (Preventive), Mumbai v. M. Ambalal and Company, (2011) 2 SCC 74=2010(260) E.L.T. 487 (S.C.), (in which one of us was the party) has observed that the beneficial notification providing the levy of duty at a concessional rate should be given a liberal interpretation: 16. It is settled law that the notification has to be red as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment in so many words. In fact, majority of judgments emphasise that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A close scrutiny will reveal that there is no real contradiction amongst the judgments at all. 29 The synthesis of the views is quite clearly that the general rule is strict interpretation while special rule in the case of beneficial and promotional exemption is liberal interpretation. The two go very well with each other because they relate to two different sets of circumstances.” 11. In Commissioner of Sales Tax v. Industrial Coal Enterprises, (1999) 2 SCC 607, this Court has observed: “11. In CIT v. Straw Board Mfg. Co. Ltd. this Court held that in taxing statutes, provision for concessional rate of tax should be liberally construed. So also in Bajaj Tempo Ltd. v. CIT it was held tha provision granting incentive for promoting economic growth and development in taxing statutes should be liberally construed and restriction placed on it by way of exception should be construed in a reasonable and purposive manner so as to advance the objective of the provision.” 12. In Commissioner of Central Excise, Shillong v. North-Eastern Tobacco Co. Ltd., (2003) 1 SCC 161= 2002 (146) E.L.T. 490 (S.C.), this Court has held: “10. The other important principle of interpreting an exemption notification is that as far as possible liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed.” 13. In Associated Cement Companies Ltd. v. State of Bihar (2004) 7 SCC 642, this Court while explaining the nature of the exemption notification and also the manner in which it should be interpreted has held: “12. Literally “exemption” is freedom from liability, tax or duty. Fiscaly it may assume varying shapes, specially, in a growing economy. In fact, an exemption provision is like an exception and on normal principle of construction or interpretation of statutes it is construed strictly either because of legislative intention or on economic justification of inequitable burden of progressive approach of fiscal provisions intended to augment State revenue. But once exception or exemption becomes applicable no rule or principle requires it to be construed strictly. Truly speaking, liberal and strict construction of an exemption provision is to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in the nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction. (See Union of India v.Wood Papers Ltd. and Mangalore 30 Chemicals and Fertilisers Ltd. v. Dy. Commr. Of Commercial Taxes to which reference has been made earlier.)” 14. In G.P. Ceramics Private Limited v. Commissioner, Trade Tax, Uttar Pradesh, (2009) 2 SCC 90, this Court has observed thus: “29. It is now a well-established principle of law that whereas eligibility criteria laid down in an exemption notification are required to be construed strictly, once it is found that the applicant satisfies the same, the exemption notification should be construed liberally. Se CIT v. DSM Group of Industries (SCC para 26); TISCO v. State of Jharkhand (SCC paras 42 to 45); State Level Committee v. Morgardshammar India Ltd.; Novopan India Ltd. v. C.C.E. & Customs; A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala and Reiz Electrocontrols (P) Ltd. v. C.C.E.]” 49. We may notice that the Hon’ble Apex Court in the case of Associated Cement Companies Ltd. v. State of Bihar (2004) 7 SCC 642 has laid down that when the question is, whether a subject falls in the notification or in the exemption clause then it being in the nature of an exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification, then full play should be given to it and it calls for a wider and liberal construction. The Court also the view that liberal and strict construction of the Notification is to be invoked at different stages as stated above. It is, no doubt, true that exemptions, which are beneficial in nature for the purpose of encouragement or promotion of the activities should be liberally construed. 50. We may also notice that in the case of Commissioner of Customs (Preventive), Mumbai vs. M. Ambalal and Company reported in (2011) 2 SCC 74, the Court, no doubt in Paragraph 16, took the view that the synthesis of the views is quite clearly that the general rule is strict interpretation while special rule of beneficial and promotional exemption is liberal interpretation and they are related to two different sets of circumstances. This paragraph is extracted by the Apex Court as already noted in 2012 (278) E.L.T. 37. It is pertinent to notice that in the said judgment, in the very next paragraph, namely, 31 Paragraph 17, which was quoted from (2011)2 SCC Page 74, the Court held as follows: “17. The notification issued by the Central Government is exercise of the powers conferred by Section 25(1) of the Act exempts the articles enumerated in the Table annexed when imported into India from payment of duty under the Act. The language used in the notification is plain and unambiguous. Therefore, we are required to consider the same in their ordinary sense. A construction which permits one to take advantage of one’s own wrong or to impair one’s own objection under a statute should be disregarded. The interpretation should as far as possible be beneficial in the sense that it should suppress the mischief and advance the remedy without doing violence to the language. From the wording of the above exemption notification, it is clear that the benefit of the exemption envisaged is for those goods that are imported.” 51. Thus, the Court specifically declared that the interpretation should, as far as possible, be beneficial in the sense that it should suppress the mischief and advance the remedy without doing violence to the language. We notice that similar reasoning is adopted by the Court in the judgment in the case of Commissioner of Central Excise, Shillong v. North-Eastern Tobacco Co. Ltd., (2003) 1 SCC 161, which is in paragraph 12 of the judgment in 2012 (278) E.L.T. 37 (S.C.), namely, that as far as possible, liberal interpretation should be imparted to the language provided no violence is done to the language employed. 52. We have already appreciated the language as employed in the Notification in question. It expressly exempts Excise Duty and additional duties under three enactments only. It necessarily would involve violence to the language, which is clearly employed if we were to import the sense into the Notification that even NCCD, a levy under a separate enactment, is covered by the Exemption Notification. We have no hesitation, therefore, in rejecting the contention based on the beneficial construction as canvassed by the learned Senior Counsel for the appellant. We are reinforced in this view by the unreported judgment in Civil Appeal No. 1654 of 2008 dated 24.03.2015. There, the Notification was issued under the Kerala General Sales Tax Act and the dealer, whose turn over was exempted, was poultry farmer including 32 hatcheries in the State and the exempted turnover was the turn over of sale of chicks and chickens. The issue was, whether it would apply to the case of those poultry farmers, who effected inter-State purchase of one- day chicks and subsequently reared and sold the chicken within the State. The case of the State was that such activity does not fall within the Notification. The Court held as follows: “16. The respondent-State has urged before us that the object of the notification ought to be considered in placing correct interpretation on the entries employed thereunder and thus, must receive a liberal construction. It is well settled that a provision providing for an exemption has to be construed strictly. In cases wherein the language of the exemption contained in the notification is simple, clear and unambiguous, the exemption notification must be given its natural meaning and the object and purpose of the notification need not be looked into. (CCE v. Favourite Industries, (2012) 7 SCC 15). In Novopan India Ltd. v. CCE and Customs, 1994 Supp (3) SCC 606, dealing with the same issue in relation to an exemption notification, a three-Judge Bench of this Court, stated the principle as follows: 16. We are, however, of the opinion that, on principle, the decision of this Court in Mangalore Chemicals and Fertilisers Ltd. vs. CCT, 1992 Supp (1) SCC 21 and in Union of India v. Wood Papers Ltd., (1990) 4 SCC 256 referred to therein—represents the correct view of law. The principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee—assuming that the said principle is good and sound—does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the taxliablity must establish clearly that he is coverd by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reasonexplained in Mangalore Chemicals and other decisions viz. each such exception / exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is fond applicable to him, full effect must be given to it. As observed by a Constitution Bench of This Court in Hansraj Gordhandas v. CCE and Customs, AIR 1970 SC 755 that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification i.e. by the plain terms of the exemption.” 33 17. As we have already noticed, Entry 24 of the notification contemplates two categories of dealers, (i) a poultry farmer and (ii) hatcheries. What is exempted under the notification is the turnover from sales of chicks and chickens by both types of dealers. It is not specified that if a poultry farmer imports or effects inter-State purchase of chicks and chickens, it would be ousted from the purview of the notification andthus, not be entitled to the benefits of the notification. In our considered opinion, language of the notification is clear and precise. The plain reading of the entry in the notification herein neither reflects any ambiguity nor creates confusion as to contents of the notification and therefore, we need no look into the object and purpose of the notification which prompted the State authorities to frame and issue the aforesaid notification.” 53. The language of the Notification in question does not permit us to read into the notification the levy with which the appellant stands visited. We would be guilty of torturing out of shape the clear expressions found in the Notification. This is impermissible even if it is in the wings of the theory of beneficial construction or it being an implementing notification. 54. The last point to be considered is whether in the absence of Notification exempting NCCD, we could, on the strength of the Notification, as issued, vouchsafe the benefit of exemption to the appellant? 55. The sheet anchor of the appellant in this regard is the line of decisions starting with the case of Banswara Syntex Ltd. vs. Union of India reported in 2007(216) E.L.T. 16 (Raj.). It is, therefore, necessary to examine the facts of the said case. The petitioner, therein, was engaged in the manufacture of yarn, gray fabrics and in getting man made fabrics processed. It paid Excise Duty, including Education Cess under the provisions of the Finance Act, 1994. The man made processed fabrics were exported. Thereupon, it filed a refund claim under Rule 18 of the Central Excise Rules. The claim for rebate relating to Education Cess was rejected in Appeal and the Appellate Order was confirmed by the Revisional Authority. Section 91 of the Finance Act provided that it would be levied and collected, in accordance with the provisions of the Chapter as surcharge for purposes of the Union, a Cess to be called as the Education Cess. Section 93 provided that Education Cess levied 34 under Section 91, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985, being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Education Cesson excisable goods), at the rate of two per cent, calculated on the aggregate of all duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess on excisable goods) which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue), under the provisions of the Central Excise Act, 1944 or under any other Law for the time being in force. It was further declared in Section 93(2) that the Education Cess shall be in addition to any other duties of excise chargeable on such goods under the Central Excise Act, 1944 or any other law for the time being in force. The provisions of the Excise Act and the Rules, including those relating to refunds and exemptions from duties and imposition of penalty was to apply in relation to the levy and collection of the Education Cess. The dispute related to the period 09.07.2004 to 05.09.2004. This is for the reason that on 06.09.2004, a Notification was issued, in which an explanation was appended defining ‘Duty’ for the purpose of notification. ‘Duty’ was defined as including Education Cess on excisable goods as levied under the Finance Act of 2004. It is on the basis of the same that the Authorities took the view that from the date of Notification alone, rebate on Education Cess would be allowed as the Notification defined ‘Duty’ as including the Education Cess. The reasoning of the Court, however, was that the Notification dated 26.06.2001 allowed rebate on Duty of excise payable by the manufacturer in respect of the goods manufactured and exported out of India. The explanation in the said Notification included within the ambit of Excise Duty any special Excise Duty collected under any Finance Act, therefore, when under the Finance Act of 2004, it was directed that Education Cess to be collected as surcharge on Excise Duty payable on excisable goods and shall be a Duty of Excise, it became a special Duty of Excise by way of Education Cess chargeable and collected under Finance Act, 2004 and it fell within the ambit of clause (3) of Explanation, appended to the Notification dated 26.06.2001. It was, therefore, that the Court took the view that the rebate became available on collection of surcharge on Excise Duty under Finance Act, 2004 in 35 terms of existing Notification dated 26.06.2001 immediately. The later Notification dated 06.09.2004, including the Education Cess in enumerative definition was held to be clarificatory and by way of abundant caution and it was not a new rebate in relation to Excise Duty or any part thereof. At the time of surcharge it had taken the character of parent levy and it became subject to the provisions relating to Excise Duty applicable to it in the manner of collecting the same obligation of the tax payer in respect of its discharge as well as exemption concession by way of rebate. The surcharge was for the purpose of Union and was to be utilized to provide and finance unversalised quality of basic education. 56. On reading of Section 93, as a whole, it was found that the existing Notification providing exemption to the Duty of Excise was otherwise applicable to the Education Cess also w.e.f. it became payable as part of the duty of Excise or at any rate special Excise Duty collected under the Finance Act and it did not require a separate Notification in that regard. These were the facts, on which, the Court took the view that the orders impugned in the petition were unsustainable. Undoubtedly, the Special Leave Petition and the Civil Appeal were dismissed; the Court saw no reason to interfere. Apparently, this has been followed later on in the cases of Vipore Chemicals Pvt. Ltd. vs. Union of India 2009 (233) E.L.T. 44 (Guj), Loyal Textile Mills vs. Jt. Secretary, MF 2012 (280) E.L.T. 8 (Mad) and CCE, TVS Motor Co. Ltd. vs. CCE, Mysore 2013 (295) E.L.T. 42 (Ker). 57. We would think that the appellant is not justified in seeking to draw support from the principle enunciated in the said cases in the facts of the present case. Therein, the Court relied upon the fact that the Education Cess was treated even under the earlier Notification as an additional Duty of Excise. This is for the reason that the statutory Notification of an earlier date, included within the ambit of Excise Duty, any special Excise Duty collected under any Finance Act. It was, therefore, that when the Education Cess was treated as a Duty of Excise under the Finance Act 2004, Education Cess became a special Duty of Excise in terms of the 2001 Notification. Therefore, naturally rebate became available in respect of the levy immediately; whereas here, we are dealing with a Notification dated 10.06.2003, which provided for 36 exemption only from the Excise Duty payable under three enactments, which, undoubtedly, included the Excise Act. It may have been different, if the Author of the Notification had not included the words “leviable thereon under any of the said Acts”. In other words, if in the Notification, there was only reference to Section 5-A of the Central Excise Act of 1944, besides the other provisions under other two enactments being enabling provisions conferring power to grant exemption from the duties under the enactments() and the paragraph would have ended with only the words “the whole of the duty of the excise or additional duty of excise, as the case may be”, at least an attempt could have been made to rope in NCCD and other levies within the scope of the Notification. But, here we would think that merely for the reason that in Section 136 of the Finance Act of 2001, it is mentioned that NCCD will be levied by way of surcharge and it will be a duty of Excise and further that it shall be in addition to any other duties of excise chargeable on such goods under the Act or any other law for the time being in force or even that the provisions of the Act and the Rules will apply for collection of NCCD, it would certainly not be enough to dislodge the unambiguous intent conveyed by the Author of the Notification by addition of the words “leviable thereon under any of the said Acts”. NCCD is not a levy under any of the Acts mentioned in the Notification. On the other hand, it is admittedly a levy under the Finance Act of 2001, which is a separate enactment. As far as the duties of excise, which are covered under the Excise Act, as already noticed, are concerned, they would be the excise duties payable under Section 3 of the Central Excise Act, 1944 or any other duties that is levied under the Act and the other enactments. We cannot lose sight of the fact that what is mentioned in Section 136 is that it is stated to be a duty of Excise or that it is in addition to the duties of Excise chargeable under the Act would not make a duty of Excise levied under the Act. It is, no doubt, true that sub section (3) of Section 136, it is also to be noticed that NCCD is a duty in respect of the goods, which is specified in the Seventh Schedule of the Finance Act, 2001. In the Notification, the goods specified in the First and Second Schedule to the Central Excise Tariff Act, 1985, other than the goods specified in Annexure 1, are exempted from the duties under the Excise Act and the other two Acts. It 37 may be true that the goods manufactured by the appellant is to be found in the seventh schedule to the Finance Act of 2001 as also the schedule to the Excise Act mentioned in the notification. It is true that by virtue of sub-section (3) of Section 136, the provision relating to exemption from duty is made applicable to NCCD. This only means that it is open to the Authority acting under Section 5-A of the Excise Act to grant exemption from NCCD invoking the power therein, but that is of far cry from saying that since the Notification was issued under Section 5-A, it must be treated as having also impliedly granted exemption from payment of NCCD. Thus, we see no scope for applying the principles laid in Banswara Syntex Ltd. vs. Union of India reported in 2007(216) E.L.T. 16 (Raj.) and other cases. 58. The upshot of the above discussion is that on no ground canvassed before us by the appellant, we are persuaded to grant relief to the appellant. 59. Next, it is contended that there is no authority to impose interest. It is pointed out that after the judgment of the learned Single Judge, the order of assessment has been passed, wherein the appellant has been mulcted with interest, besides penalty at the rate of 100%. Learned Senior Counsel Sri Arshad Hidayatullah would submit that it is settled law that interest in a taxing statute must be traced to a substantive provision authorizing levy of interest. He relied on the decisions in CCE, Ahmedabad V. Orient Fabrics Pvt. Ltd. 2003 (158) E.L.T. 545 (S.C.), J.K. Synthetics Ltd. V. Commercial Taxes Officer (1994) 4 SCC 276 (S.C.), Indian Carbon Ltd. and others vs. State of Assam (1997) 6 SCC 479. 60. We notice that the said contention is not reflected in the judgment of the learned Single Judge. Learned Senior Counsel would point out that it was indeed argued and in fact, the argument note also, contains this contention. He does not dispute that at the relevant time, there was indeed a provision in the Excise Act, which provided for levy of interest. In respect of interest, no doubt, learned Senior Counsel would contrast the provision relating to interest as contained in the levy of Swachh Bharat. We must notice that the impugned order of assessment is not even produced before us or impugned before us. Having regard to Section 136(3) of the Finance Act, 2001, prima facie 38 provisions of the Act were available to the Authorities for all purposes would come to the rescue of the respondent if the interest is levied from the relevant time, but we do not wish to finally conclude this issue as we would allow the appellant to raise this contention before the statutory authority duly constituted. We also leave open the contention of the appellant to impugn the quantum of interest. In regard to the fate of the argument relating to imposition of penalty, it is to be answered against the appellant. No doubt, the case of the appellant is that even if it is found that NCCD was payable, to impose penalty and that too at the rate of 100 per cent is absolutely harsh, unjust and uncalled for. All that the appellant did is that it came over to a backward State, invested in the State. The amount (100 percent) is enormous, according to the appellant. We see no reason to go into this question. We notice that in Section 136(3) with regard to power to impose penalty, we would think that there is indeed express power as provision of imposition of penalty is available in respect of NCCD. As regards the quantum and even whether penalty should be imposed, we direct that it is open for the appellant to raise the contentions in a duly constituted proceeding. 61. Subject to the observations as above, finding the Appeal to be meritless, the same will stand dismissed. There will be no order as to costs. (Alok Singh, J.) (K.M. Joseph,C.J.) 16.03.2017 16.03.2017 Rathour "