Devi Udyog V. The Union of India and The Commissioner of Goods and Service Tax Bhangagarh Guwahati-05 Assam and The Assistant Commissioner of Goods and Service Tax Tezpur-784001 Assam

WP(C)/3199/2018

AI Insights

The case involves M/S Devi Udyog, a partnership firm, challenging a refund order issued by the Assistant Commissioner of Central Goods & Services Tax, Tezpur Division, Assam. The petitioner argued that the refund order denied them 100% exemption from excise duty as promised under various industrial policies and notifications, which was later reduced to 36% by subsequent notifications. The petitioner contended that these changes were contrary to earlier judicial decisions and violated principles of natural justice. However, the Supreme Court's recent judgment in Union of India vs V.V.F. Limited, which upheld the validity of the subsequent notifications and clarified their retrospective application, led to the dismissal of the petitioner's claims.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 813362 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 24-06-2020
• Assessment Year: misc
• Other Referred Cases: Union of India vs V.V.F. Limited
• Laws Referred To: Central Excise Act, 1944, Central Excise Tariff Act, 1985
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: S C KEYAL
• Assessee Lawyers: M L GOPE
• Keywords: Excise duty exemption; Industrial Policy; Public interest; Refund order; Tax Evasion
• Section: 9; 5A; 173G

Judgement Text

"Page No.# 1/19 GAHC010008112017 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 3199/2018 1:M/S. DEVI UDYOG A PARTNERSHIP FIRM HAVING ITS OFFICE AND FACTORY AT VILL- NALBARI, ORANG, DISTRICT UDALGURI, BTAD, P.O. ROWTA- 784508, ASSAM REP. BY SRI RAVI SUREKA VERSUS 1:THE UNION OF INDIA and 2 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI. 2:THE COMMISSIONER OF GOODS AND SERVICE TAX BHANGAGARH GUWAHATI-05 ASSAM 3:THE ASSISTANT COMMISSIONER OF GOODS AND SERVICE TAX TEZPUR-784001 ASSA Advocate for the Petitioner : MS. M L GOPE Advocate for the Respondent : ASSTT.S.G.I. Page No.# 2/19 BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA JUDGMENT Date : 24-06-2020 Heard Ms. N. Hawelia, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned ASGI for the respondents. 2. When the matter was listed on 22.06.2020, it was pointed out by Mr. Keyal, learned ASGI that in view of a recent judgment rendered by the Apex Court in the case of Union of India –Vs- V.V.F. Limited the claims of the writ petitioners have become infructuous and the writ petition should, accordingly, be dismissed. The learned counsel for the petitioner strongly disputed the said contention and submitted that notwithstanding the judgment rendered by the Apex Court, the claims made in the writ petitioner have not become infructuous and therefore, the same are required to be adjudicated upon. She, however, submits that the matter be listed some other day so as to enable her to submit before the Court that the matter has not become infructuous. Accordingly, the matter was listed again on 24.06.2020 on which date the matter was heard in presence of the learned counsels. 3. This writ petition has been filed challenging the refund order R-63/2017-18 dated 24.10.2017 issued by the Assistant Commissioner, Central Goods & Services Tax, Tezpur Division, Assam (respondent No. 3). The case of the petitioner is that it is a partnership firm having its Office and Factory at village Nalbari, Orang, District-Udalguri, BTAD, P.O. Rowta- 784508, Assam. The petitioner is a registered firm under the Central Excise holding Registration Number AAKFD6560AEM001 and is represented by Sri Ravi Sureka, one of the partners of the petitioner Firm. The petitioner Firm is engaged in the manufacture of the Paver Block (CEYSH 68159910), Mechanical Bricks (CETSH No. 681011-10) and Ordinary Portland Cement Dry (CETSH No. 25232910) from the manufacturing unit. 4. The case of the petitioner is that the Government of India by a notification dated 24th December, 1997 was pleased to announce a new Industrial Policy Resolutions (herein after referred to as ‘IPR’) containing a package of incentives and concessions for the entire North Eastern Region. The said IPR amongst others declared all industrial activities in growth Centers; integrated infrastructural development centers, export promotion and industrial parks, export processing zones, industrial estates as completely tax free zones for a period of 10 years. It was announced and promised by the Government of India that all the industrial activities for such areas would be free from, inter alia, Page No.# 3/19 income tax and central excise for a period of 10 years from the date of commencement of production and also that the State Government would be moved for exemptions of sales tax, municipal tax and other such local taxes on industrial activities in the said areas. In terms of the North-East Industrial Policy resolution contained in the Office Memorandum dated 24.12.1997 visualizing various benefits to be conferred to industries which are set up or/expanded in terms of the Industrial Policy Resolution, insofar as, the exemption of Central Excise Department was concerned, the respondent authorities/Central Excise Department issued notification No. 32/99-CE and 33/99-CE dated 08/07/09 respectively whereby exemptions were granted in respect of all excisable goods cleared from a unit located in the growth or integrated Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estates or Industrial Area or Commercial Estate, as the case may be as specified in the Annexures appended to the said notifications from such of the excise or additional duty of excise leviable thereon as is equivalent to the amount of the duty paid by the manufacture of goods from the account current maintained under Rule 9 read with Rule 173G of the Rules. In terms of the said notifications, the Excise exemptions were to be granted from the excise or additional duty of excise leviable thereon as is equivalent to the amount of the duty paid by the manufacturer of goods from the current account maintaining under Rule 9 read with Rule 173G of the Rules. The exemption contained in the said notifications were made applicable to only new Industrial Units which commenced their commercial production on or after the 24th December, 1997 and to the Industrial Units existing before the 24th December, 1997 but which undertook substantial expansion by way of increase in the installed capacity by not less than 25% on or after the 24th December, 1997. The exemption contained in the said notifications was made applicable to any of the above stated Industrial Unit for a period not exceeding 10 years from the date of publication of the Notification in the Official Gazette or from the date commencement of commercial production, whichever is later. 5. It is the case of the petitioner that the original notification No. 32/99 and 33/99 dated 08.07.1999 was amended several times subsequently. Thereafter, the new Industrial Policy namely the North-East Industrial and Investment Promotion Policy (NEIIPP), 2007 was also annexed which provided for financial concessions for industries in the Northeast Region. In the said new Industrial Policy of 2007 on the issue of excise duty exemption under clause(V), it is clearly noted that “hundred percent excise duty exemption will be continued, on finished products made in the North Eastern Region, as was available NEIP, 1997”. 6. The Central Excise Department in excise of powers conferred by under Section 5A of the Central Excise Act, 1944, issued notification No. 20/2007 dated 25.04.2007, whereby the goods Page No.# 4/19 specified for the first schedule on the Central Excise Tariff Act, 1985 were exempt from the duty of the Central Excise leviable thereon equivalent of the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilizing of CENVAT Credit under the capital CENVAT Credit Rules, 2004. 7. The petitioner contends that relying upon the assurance of promise offered by the Government the petitioner proceeded to set up manufacturing units at village Rowta, district Udalguri for manufacture of the Paver Block, mechanical bricks and ordinary Portland Cement Dry and invested substantial amounts for setting up the industry in view of the full exemption benefit being offered by the Government. The petitioner Firm also fulfilled the conditions mentioned in the Notification No. 20/2007 dated 25.04.2007 and was found eligible for the benefit of exemptions by way of refund of excise duty through PLA and Cenvat Credit for the products allowed to be manufactured and cleared from the said unit for a period not exceeding 10 years from the date of commercial production. The petitioner Firm was availing area based exemptions in terms of Notification No. 20/2007-CE dated 25.04.2007. 8. Thereafter by Notification No. 20/2008-CE dated 27.03.2008 and Notification No. 38/2008-CE dated 10.06.2008, the earlier notifications were amended. The amendment brought in by the subsequent Notifications had the effect of reducing the hundred percent exemptions which were given earlier under the North-East Region, Industrial Promotion Policy, 2007 and the Notification No. 20/2007 dated 25.04.2007. 9. The petitioner’s grievance is that the subsequent notifications completely modified the earlier promise/incentive which was offered by the Government for the period of 10 years. The amendments brought in by the later notifications reduced the quantum of excise exemption benefits which were claimed by the petitioner, from the original hundred percent exemption provided by the earlier notification No. 20/2007 dated 25.04.2007. The petitioner’s entitlement of excise exemption had been reduced from 100% to only 36% causing grave and irreparable hardships, damages and loss to the petitioner. 10. The petitioner submits that the notifications dated 20/2008-CE dated 27.03.2008 and 38/2008-CE dated 10.06.2008 were therefore challenged by other similar situated affected persons before this Hon’ble Court, the leading case being WP(C) 1707/2008. This Hon’ble Court vide judgment and order dated 24.06.2009 was pleased to set aside and quash the impugned notifications and held that the petitioners therein were entitled to 100% exemption from payment of Central Excise Duty in Page No.# 5/19 terms of the notification dated 08.07.99 and 25.04.2007. 11. Aggrieved by the said judgment, the Union of India filed a writ appeal before the Division Bench of this Hon’ble Court being Writ Appeal No. 243/2009. The Division Bench initially passed an interim order on 11.08.2009 whereby the refund in terms of the verdict in the writ petition was directed to be limited initially to the amount offered by the excise authorities. Subsequently, upon a Misc. Case being filed in the W.A. No. 243/2009, being M.C. No. 1999/2012, the interim order was modified, in terms of an interim order passed by the Apex Court in a similar case arising from the State of Gujarat and pending before the Apex Court. The interim order was modified and the Union of India was directed to release 50% of the amounts due in terms of the impugned Judgment and Order passed by the learned Single Judge. 12. The Writ Appeal No. 243/2009 against the Judgment and Order preferred by the Union of India came to be disposed of by the Division Bench upholding the learned Single Judge’s order. The Division Bench held that all the industries set up pursuant to the policy of 1997 and 2007 shall continue to enjoy the benefits of full exemption as per the Industrial policy and the notifications thereunder granting full exemptions. Being aggrieved, the Union of India preferred Special Leave Petition against the judgment and order dated 20.11.2014 passed in writ appeal No. 243/2009 which was numbered as SLP(C) No. 5903/2015. 13. The Supreme Court vide order dated 15.04.2015 condoned the delay in filing the SLP and directed the said SLP to be connected to SLP No. 28194/2010. However, no interim stay was granted to the Union of India. 14. It seems that in respect of some of the units, no relief whatsoever was granted by the respondent Department despite the orders passed by the Division Bench of this Hon’ble Court in W.A. No. 243/2009. As a result, contempt petitions were filed by some of those units. The petitioner, however, did not file any such contempt petition. 15. Faced with contempt petitions filed by those units, the Union of India, filed an application before the Hon’ble Supreme Court in the SLPs pending, praying for stay of the operation of the Judgment in those cases. The Hon'ble Supreme Court, on 7th December, 2015 ordered stay of the operation of the judgment provided 50% of the exemption was given by the Department to those units. Page No.# 6/19 16. The Hon’ble Supreme Court by order dated 07.12.2015 passed in I.A. 3/2005, which is as follows:- “ORDER Heard. Pending further orders, we direct that subject to the petitioners releasing 50% of the amount due to the respondent in terms of the impugned judgment on the respondents furnishing solvent surety to the satisfaction of the jurisdictional commissioner, the operation of the impugned judgment shall remain stayed. We further direct that contempt proceedings initiated against the petitioners shall subject to their releasing 50% of the amount as stated above remain stayed. The needful shall be done within four weeks from today. I.A No. 3 of 2015 is accordingly allowed and disposed of”. 17. Thereafter, while the Department was in the process of releasing 50% of the amount due as directed by the Hon’ble Supreme Court, some of the manufacturers raised grievances before the Department disputing the refunds sought to be made as per the interpretation of the Department (50% of the amount due). According to those units/industries in terms of the Supreme Court order, the 50% to be refunded by the department shall be 50% of the total amount claimed by the said petitioners. These manufacturers filed a batch of writ petitions and contempt petitions before the Hon’ble Gauhati High Court. It is to be mentioned here that the present petitioner did not file any such writ petition. Accordingly, the Hon’ble Gauhati High Court vide Judgment and Order dated 01.12.2016 in these batches of writ petitions as well as contempt petitions filed by manufacturers similarly situated like the petitioner herein were disposed of directing that the benefit of the relief given by the Division Bench in W.A No. 243/2009 vide Judgment and Order dated 20.11.2014 was extended to cover all the industries set up pursuant to 1997 and 2007. Therefore, this Court directed that observations of this Court on the receivable amount will universally apply to all the eligible industries and therefore the interim relief is not to be restrictive to only the litigants before this Court. 18. According to the petitioner the Central Board of Excise & Customs also vide its letter dated 25.01.2017 informed that the Board had examined the issue and decided that Commissionerate needs to follow the direction of High Court given in their Order dated 01.12.2016. However, even after the aforesaid orders as well as the instructions issued by the CBD’I‘, the Respondent No. 3, by the Page No.# 7/19 impugned order of refund No. 63/2017-18 dated 24.10.2017 for the month of January, 2017 to March, 2017, denied the benefits given under the Judgment and Order dated 20.11.2014 and 01.12.2016 passed by this Hon'ble Court read with the order dated 07.12.2015 passed by the Hon'ble Supreme Court of India. 19. The petitioner, being aggrieved by the impugned Refund Order No. 63/2017-18 dated 24.10.2017 has approached this Court challenging the rejection of the claims of refund of 100% by the Central Excise Department and has sought for a Writ of Mandamus to be directed to the respondents to confer of 100% exemptions to the petitioner in terms of the earlier orders passed by the Hon’ble Gauhati High Court. 20. The respondent Department contested the case by filing in its affidavit. The Department contended that the interim order passed by the Apex Court is equally applicable to them although they are not a party to it. According to the Department the petitioner is entitled to a refund of 36% of the value addition made. The Department also contended that the Gauhati High Court order dated 20.11.2014 was sub-judiced before the Apex Court and therefore they are not entitled to get 100% refund. 21. Mr. S.C. Keyal, learned ASGI appearing for the respondents submits in Court that the issue raised in this writ petition and other connected writ petitions have now been finally decided by the Apex Court in a judgment rendered in the case of Union of India –Versus- V.V.F. Limited vide judgment and order dated 22.04.2020. According to Mr. Keyal, the Supreme Court has touched upon the entire gamut grievances raised by the petitioner including the claims for 100% exemptions. The challenge made to the subsequent amendment notifications by the industries which were allowed, set aside and interfered with by the judgments rendered by various High Courts including Gauhati High Court have now been quashed and set aside by the Apex Court. The Apex Court by this judgment allowed the appeals produced by the Union of India and consequently upheld the decision of the Central Government to reduce the amount of exemption granted by way of subsequent notification. The amended notifications were held to be clarificatory in nature. However, the amount of Excise duty already refunded prior to the amended notifications impugned before the respective High Courts were not to be re-opened. The Apex Court however while disposing of the SLPs preferred by the Union of India, clarified that pending refund application shall be decided as per the subsequent notifications/industrial policies which were impugned before the respective High Courts and that they should be decided in accordance with law and on merits and as per subsequent notification/Industrial policies impugned before the respective High Courts. Page No.# 8/19 22. The relevant paragraphs by the Apex Court Judgment are extracted herein below:- “10. By the impugned Judgment and Order, the High Court has set aside the subsequent notification No. 16 of 2008 dated 27.03.2008 mainly on the ground that the same is retrospective and not retro-active in nature and the same is hit by the Doctrine of Promissory Estoppel. It is the case on behalf of the Union of India that the subsequent notification is as such in continuation of the earlier notification and the same is clarificatory and therefore can be made applicable retrospectively. It is also the case on behalf of the Union of India that the subsequent notification/amendment in the original notification did not in any way alter the basis of the original first notification of 2001. It is also the case on behalf of the Union of India that the subsequent notification of 2008 has been issued in the public interest and has been issued in exercise of the powers conferred under Section 5A of the Central Excise Act. Therefore, the questions which are posed for consideration of this Court are whether in the facts and circumstances of the case the subsequent notification which has been quashed and set aside by the High Court being notification No. 16 of 2008 dated 27.03.2008 can be said to be clarificatory in nature and can it be said that it takes away the vested right conferred pursuant to the earlier notification of 2001 and whether the same can be made applicable retrospectively and whether the same has been issued in the public interest and whether the same is hit by the Doctrine of Promissory Estoppel? 11. While considering the aforesaid questions and before considering the nature of the subsequent notification of 2008, few decisions of this Court on retrospectivity/clarificatory/applicability of promissory estoppel in the fiscal statute are required to be referred to, which are as under: 11.1 In the case of Kasinka Trading (supra), in paragraphs 12, 20 and 23, it is observed and held as follows:- “12. It has been settled by this Court that the doctrine of promissory estoppel is applicable against the Government also particularly where it is necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or the public authority “to carry out a representation or promise which is contrary to law or which was outside the Page No.# 9/19 authority or power of the officer of the Government or of the public authority to make”. There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. In our opinion, the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be present to the mind of the court, while considering the applicability of the doctrine. The doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation. 20. The facts of the appeals before us are not analogous to the facts in Indo- Afghan Agencies [(1968) 2 SCR 366 : AIR 1968 SC 718] or M.P. Sugar Mills [(1979) 2 SCC 409 : 1979 SCC (Tax) 144 : (1979) 2 SCR 641] . In the first case the petitioner therein had acted upon the unequivocal promises held out to it and exported goods on the specific assurance given to it and it was in that fact situation that it was held that Textile Commissioner who had enunciated the scheme was bound by the assurance thereof and obliged to carry out the promise made thereunder. As already noticed, in the present batch of cases neither the notification is of an executive character nor does it represent a scheme designed to achieve a particular purpose. It was a notification issued in public interest and again withdrawn in public interest. So far as the second case (M.P. Sugar Mills case [(1979) 2 SCC 409 : 1979 SCC (Tax) 144 : (1979) 2 SCR 641] ) is concerned the facts were totally different. In the correspondence exchanged between the State and the petitioners therein it was held out to the petitioners that the industry would be exempted from sales tax for a particular number of initial years but when the State sought to levy the sales tax it was held by this Court that it was precluded from doing so because of the Page No.# 10/19 categorical representation made by it to the petitioners through letters in writing, who had relied upon the same and set up the industry. 23. The appellants appear to be under the impression that even if, in the altered market conditions the continuance of the exemption may not have been justified, yet, Government was bound to continue it to give extra profit to them. That certainly was not the object with which the notification had been issued. The withdrawal of exemption “in public interest” is a matter of policy and the courts would not bind the Government to its policy decisions for all times to come, irrespective of the satisfaction of the Government that a change in the policy was necessary in the “public interest”. The courts, do not interfere with the fiscal policy where the Government acts in “public interest” and neither any fraud or lack of bona fides is alleged much less established. The Government has to be left free to determine the priorities in the matter of utilisation of finances and to act in the public interest while issuing or modifying or withdrawing an exemption notification under Section 25(1) of the Act.” Thus, it can be seen that this Court has specifically and clearly held that the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the objective to be achieved and the public good at large. It has been held that while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must forever be present to the mind of the court, while considering the applicability of the doctrine. It is further held that the doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation. It is further held that an exemption notification does not make items which are subject to levy of customs duty etc. as items not leviable to such duty. It only suspends the levy and collection of customs duty, etc., wholly or partially and subject to such conditions as may be laid down in the notification by the Government in “public interest”. Such an exemption by its very nature is susceptible of being revoked or modified or subjected to other conditions. The supersession or revocation of an exemption notification in the “public interest” is an exercise of the statutory power of the State under the law itself. It has been Page No.# 11/19 further held that under the General Clauses Act an authority which has the power to issue a notification has the undoubted power to rescind or modify the notification in a like manner. It has been observed that the withdrawal of exemption “in public interest” is a matter of policy and the courts would not bind the Government to its policy decisions for all times to come, irrespective of the satisfaction of the Government that a change in the policy was necessary in the “public interest”. It has been held that where the Government acts in “public interest” and neither any fraud or lack of bonafides is alleged, much less established, it would not be appropriate for the court to interfere with the same. 11.2 In the case of Shrijee Sales Corporation (supra), it is observed and held that the principle of promissory estoppel may be applicable against the Government. But the determination of applicability of promissory estoppel against public authority/Government hinges upon balance of equity or “public interest”. In case there is a supervening public interest, the Government would be allowed to change its stand; it would then be able to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. Once public interest is accepted as the superior equity which can override individual equity, the aforesaid principle should be applicable even in cases where a period has been indicated for operation of the promise. 11.3 In the case of Shree Durga OH Mills (supra), it has been held that when the withdrawal of exemption is in public interest, the public interest must override any consideration of private loss or gain. In the said case, the change in policy and withdrawal of the exemption on the ground of severe resource crunch have been found to be a valid ground and to be in public interest. 11.4 In the case of Mahaveer Oil Industries (supra), after considering the decision of this Court in the case of Kasinka Trading (supra), a similar view has been taken and it has been observed that public interest requires that the State be held bound by the promise held out by it in such a situation. But this does not preclude the State from withdrawing the benefit prospectively even during the period of the Scheme, if public interest so requires. Even in a case where a party has acted on the promise, if there is any supervening public interest which Page No.# 12/19 requires that the benefit be withdrawn or the scheme be modified, that supervening public interest would prevail over any promissory estoppel. 11.5 In the case of Shree Sidhbali Steels Ltd. (supra), in paragraphs 32 and 33, it has been observed and held as follows:- “32. The doctrine of promissory estoppel is by now well recognised and well defined by a catena of decisions of this Court. Where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 229 of the Constitution. The rule of promissory estoppel being an equitable doctrine has to be moulded to suit the particular situation. It is not a hard-and-fast rule but an elastic one, the objective of which is to do justice between the parties and to extend an equitable treatment to them. This doctrine is a principle evolved by equity, to avoid injustice and though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. For application of the doctrine of promissory estoppel the promisee must establish that he suffered in detriment or altered his position by reliance on the promise. 33. Normally, the doctrine of promissory estoppel is being applied against the Government and defence based on executive necessity would not be accepted by the court. However, if it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the court would not raise an equity in favour of the promisee and enforce the promise against the Government. Where public interest warrants, the principles of promissory estoppel cannot be invoked. The Government can change the policy in public interest. However, it is well settled that taking cue from this doctrine, the authority cannot be compelled to do something which is not allowed by law or prohibited by law. There is no promissory estoppel against the settled proposition of law. Doctrine of promissory estoppel cannot be invoked for Page No.# 13/19 enforcement of a promise made contrary to law, because none can be compelled to act against the statute. Thus, the Government or public authority cannot be compelled to make a provision which is contrary to law.” Thus, as held by this Court, when the public interest warrants, the principles of promissory estoppel cannot be invoked. It is further held that the rule of promissory estoppel being an equitable doctrine has to be moulded to suit the particular situation. It is not a hard-and- fast rule but an elastic one, the objective of which is to do Justice between the parties and to extend an equitable treatment to them. 12. Now, so far as the decisions relied upon by the learned counsel appearing on behalf of the respective original writ petitioners-respondents herein are concerned, once it is held that the subsequent notifications/industrial policies impugned before the respective High Court are clarificatory in nature and it does not take away any vested rights conferred under the earlier notifications/industrial policies, none of the decisions relied upon shall be applicable to the facts of the case on hand. ………………………………………………….. 14. Applying the law laid down by this Court in the aforesaid decisions to the subsequent notifications/industrial policies which were the subject-matter before the High Court and for the reasons stated hereinbelow, we are of the opinion that the respective notifications/industrial policies impugned before the High Courts can be said to be clarificatory in nature and it can be defined as an Act to remove doubts. It cannot be said that by the subsequent notifications/industrial policies the benefits which were accrued/granted under the earlier notifications were sought to be taken away. It also cannot be said that by the subsequent notifications/industrial policies, the rights which have been accrued under the earlier notifications had been taken away. 14.1 The main objective of the earlier respective notifications/industrial policies was to encourage the entrepreneurs to put new industries in the area so as to generate employment and for that an incentive was offered to get back by way of refund the excise duty paid either in cash or PLA, namely, the amount of duty paid by the manufacturer of goods other than the amount of duty paid Page No.# 14/19 by utilization paid by CENVAT credit. The same was subject to conditions that it will be applied to the new industrial units, i.e. the units which are set up on and after the publication of the said notification in the Official Gazette, i.e. not later than 31.07.2003. The notification was modified from time to time. However, during the operation of the earlier notifications, it was noticed that the provision of granting refund of cash paid portion of duty and eligibility of credit the entire amount of duty to the buyers of such excisable goods had prompted certain unscrupulous manufacturers to indulge in different types of tax evasion tactics. It was revealed on analysis of cases booked by the Excise Department and even the representations received from the Industry Association about misuse of exemptions granted by the Government, which was meant to be available only for genuine manufacturers. It was noticed as under:- i) Reporting of bogus production by mere issuance of sale invoices without actual production of goods and supply/clearance of excisable goods. This would result in availment of CENVAT credit by buyers of such excisable goods in other parts of the country without actual production being carried out and in absence of actual receipt of goods. ii) Reporting of bogus production by such units in these areas where actual production takes place elsewhere in the country. iii) Over valuation of goods resulting in availment of excess credit by buyers. iv) Goods are supplied by manufacturers, importers to these units without issuance of sales invoice and these are backed by bogus sale invoices issued by traders who do not undertake actual supply of goods. The actual supplier of these goods issue bogus duty paid invoices to other manufacturers who take credit based on such invoices without receipt of goods. Therefore, the Government came out with the impugned notifications/industrial policies that the refund of excise duty shall be provided on actual and calculated on the basis of actual value addition. On a fair reading of the earlier notifications/industrial policies, it is clear that the object of granting the refund was to refund the excise duty paid on genuine manufacturing activities. The intention would not have been that irrespective of actual manufacturing/manufacturing activities and even if the goods are not actually Page No.# 15/19 manufactured, but are manufactured on paper, there shall be refund of excise duty which are manufactured on paper. Therefore, it can be said that the object of the subsequent notifications/industrial policies was the prevention of tax evasion. It can be said that by the subsequent notifications/industrial policies, they only rationalizes the quantum of exemption and proposing rate of refund on the total duty payable on the genuine manufactured goods. At the time when the earlier notifications were issued, the Government did not visualize that such a modus operandi would be followed by the unscrupulous manufacturers who indulge in different types of tax evasion tactics. It is only by experience and on analysis of cases detected the Excise Department the Government came to know about such tax evasion tactics being followed by the unscrupulous manufacturers which prompted the Government to come out with the subsequent notifications which, as observed hereinabove, was to clarify the refund mechanism so as to provide that excise duty refund would be allowed only to the extent of duty payable on actual value addition made by the manufacturer undertaking manufacturing activities in the concerned areas. The entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption/refund of excise duty paid was to provide such exemption only to actual value addition made in the respective areas. As it was found that there was misuse of excise duty exemption it was considered expedient in the public interest and with a laudable object of having genuine industrialization in backward areas or the concerned areas, the subsequent notifications/industrial policies have been issued by the Government. Therefore, the subsequent notifications/industrial policies impugned before the respective High Courts were in the public interest and even issued after thorough analysis of the cases of tax evasion and even after receipt of the reports. The earlier notifications were issued under Section 5A of the Central Excise Act and even the subsequent notifications which were issued in public interest and in the interest of Revenue were also issued under Section 5A of the Central Excise Act, which cannot be said to be bad in law, arbitrary and/or hit by the doctrine of promissory estoppel. 14.2 The purpose of the original scheme was not to give benefit of refund of the excise duty paid on the goods manufactured only on paper or in fact not Page No.# 16/19 manufactured at all. As the purpose of the original notifications/incentive schemes was being frustrated by such unscrupulous manufacturers who had indulged in different types of tax evasion tactics, the subsequent notifications/industrial policies have been issued allowing refund of excise duty only to the extent of duty payable on the actual value addition made by the manufacturers undertaking manufacturing activities in these areas which is absolutely in consonance with the incentive scheme and the intention of the Government to provide the excise duty exemption only in respect of genuine manufacturing activities carried out in these areas. 14.3 As observed hereinabove, the subsequent notifications/industrial policies do not take away any vested right conferred under the earlier notifications/industrial policies. Under the subsequent notifications/industrial policies, the persons who establish the new undertakings shall be continue to get the refund of the excise duty. However, it is clarified by the subsequent notifications that the refund of the excise duty shall be on the actual excise duty paid on actual value addition made by the manufacturers undertaking manufacturing activities. Therefore, it cannot be said that subsequent notifications/industrial policies are hit by the doctrine of promissory estoppel. The respective High Courts have committed grave error in holding that the subsequent notifications/industrial policies impugned before the respective High Courts were hit by the doctrine of promissory estoppel. As observed and held hereinabove, the subsequent notifications/industrial policies which were impugned before the respective High Court can be said to be clarificatory in nature and the same have been issued in the larger public interest and in the interest of the Revenue, the same can be made applicable retrospectively, otherwise the object and purpose and the intention of the Government to provide excise duty exemption only in respect of genuine manufacturing activities carried out in the concerned areas shall be frustrated. As the subsequent notifications/industrial policies are “to explain” the earlier notifications/industrial policies, it would be without object unless construed retrospectively. The subsequent notifications impugned before the respective High Courts as such provide the manner and method of calculating the amount of refund of excise duty paid on actual manufacturing of goods. The Page No.# 17/19 notifications impugned before the respective High Courts can be said to be providing mode on determination of the refund of excise duty to achieve the object and purpose of providing incentive/exemption. As observed hereinabove, they do not take away any vested right conferred under the earlier notifications. The subsequent notifications therefore are clarificatory in nature, since it declares the refund of excise duty paid genuinely and paid on actual manufacturing of goods and not on the duty paid on the goods manufactured only on paper and without undertaking any manufacturing activities of such goods. …………………………………… …………………………………… 16. Under the circumstances, the respective High Courts have committed a grave error in quashing and setting aside the subsequent notifications/industrial policies impugned before the respective High Courts on the ground that they are hit by the doctrine of promissory estoppel and that they are retrospective and not retroactive. Consequently, all these appeals are ALLOWED. The impugned Judgments and Orders passed by the respective High Courts, which are impugned in the present appeals, quashing and setting aside the subsequent notifications/industrial policies impugned in the respective writ petitions before the respective High Courts, are hereby quashed and set aside. Consequently, the original writ petitions filed by the respective original writ petitioners before the respective High Courts challenging the respective subsequent notifications/industrial policies stand dismissed and for the reasons stated hereinabove, the challenge to the respective subsequent notifications/industrial policies impugned before the respective High Courts FAIL. However, it is CLARIFIED that the present judgment shall not affect the amount of excise duty already refunded, meaning thereby, the cases in which the excise duty is already refunded prior to the subsequent notifications/industrial policies impugned before the respective High Court, they are not to be reopened. However, it is further CLARIFIED that the pending refund applications shall be decided as per the subsequent notifications/industrial policies which were impugned before the respective High Courts and they shall be decided in accordance with the law and on merits and Page No.# 18/19 as per the subsequent notifications/industrial policies impugned before the respective High Courts. All these appeals stand disposed of accordingly. NO COSTS”. 23. The writ petition has been filed by the petitioner assailing the refund order dated 24.10.2017 (Annexure- VII) solely on the premise that the denial of the 100% exemption by the respondent authorities is contrary to the Judgment and Order dated 20.11.2014 passed in W.A No. 243/2009, Judgment and Order dated 01.12.2016 passed in WP(C) No. 269/2016(Raj Coke) read with the interim order dated 07.12.2015 passed by the Supreme Court in I.A. 3/2005 in the SLPs preferred by the Union of India. There is no other ground on which the refund order has been assailed in the present proceedings. It is not the pleaded case of the petitioner that the refund order impugned is violative of the CENVAT Rules and/or is contrary to the Notification No. 20/07 CE dated 25.04.2007. It is also not the pleaded case of the petitioner that the calculation arrived at by the respondent authorities and/or the procedure prescribed in arriving at the refund calculated by the respondent authorities is erroneous or is in conflict with any Rules/Notifications. The only ground pleaded for questioning the impugned refund order, is the non-compliance of the directions contained in the Judgment and Order rendered by this Hon’ble High Court as indicated above and that the refund order is passed in violation of the Rules of natural justice by denying a personal hearing. 24. The respondent authorities have categorically stated in their counter-affidavit that the refund payable to the petitioner as calculated by the Department in the refund order impugned is as per the Notification No. 20/07. Such stand of the Department is not disputed by the petitioner. 25. Since the Apex Court has rendered its Judgment and Order dated 22.04.2020 (VVF Ltd and others) in the appeals preferred by the Union of India against the Judgment and Orders rendered by the High Courts across the country and has upheld the subsequent notifications while setting aside and quashing the judgments passed by the different High Courts including this Hon’ble High Court, the very foundation on which the petitioner has challenged the impugned refund order has become non-est. Further, the Apex Court besides upholding the validity of the said Central Excise Notifications as being clarificatory in nature, has also held the same to have a retrospective effect. Under the circumstances and in view of the discussions made above, the writ petition is disposed of with a direction to the respondents authorities to re-consider the claims made for refund in terms of the Page No.# 19/19 judgment and order dated 22.04.2020 rendered by the Apex Court in case of Union of India -vs- V.V.F. Limited. Upon such re-consideration by the department, appropriate orders if required, will be passed by the department in respect of the refunds claimed by the petitioner. The entire exercise will be completed within a period of 4 (four) months from the receipt of the certified copy of this order. The writ petition is accordingly disposed of. No order as to costs. JUDGE Comparing Assistant "