Mr. Amitava Roy V. Ministry of Industry and Commerce, Department of Industrial Policy and Promotion, Government of India and Ministry of Finance, Department of Revenue, Government of India and Government of Assam

WP(C)/750/2010

AI Insights

The case revolves around the withdrawal of excise duty exemptions for pan masala manufacturers in the Northeastern Region of India, initially granted under the Northeastern Industrial Policy of 1997. The petitioner, a company with multiple manufacturing units in Assam, challenged the notifications that revoked these exemptions, arguing that the withdrawal was arbitrary and violated their legitimate expectations based on the government's earlier commitments. The court examined the legal principles of promissory estoppel and legitimate expectation, the impact of the Finance Act of 2003, and the government's justification for the withdrawal based on public interest.

• Counselvise Citation: [] 140 COUNSELVISE.COM (IT) 698555 (HC-ASSAM)
• Appeal Type: Others
• Assessment Year: misc
• Other Referred Cases: R.C. Tobacco (P) Ltd. vs. Union of India, State of Bihar vs. Suprabhat Steel, Secretary, Ministry of Chemicals and Fertilizers vs. Union of India, State of Jharkhand vs. Tata Cummins Ltd., Global Energy Limited vs. Central Electricity Regulatory Commission, U.P. Power Corporation Ltd. vs. Sant Steels and Alloys (P) Ltd., Dai-chi Karkaria vs. Union of India, Sunrise Biscuits Co. Ltd. vs. Union of India, Praneswar Das vs. State of Assam, Vadilal Chemical Ltd. vs. State of A.P., Union of India vs. Shree Ganapati Rolling Mills Pvt. Ltd., M/s Tilokchand and Motichand vs. H.B. Munshi, Ramchandra Shankar Deodhar vs. State of Maharashtra, Hindustan Petroleum Corporation Ltd. vs. Dolly Das, MRF Ltd. vs. Asstt. Commissioner (Assessment), Sales Tax, State of Bihar vs. Kalyanpur Cements, Motilal Padampat Sugar Mills Co. Ltd. vs. State of U.P., Mahabir Vegetable Oils (P) Ltd. vs. State of Haryana, K.D. Sharma vs. Steel Authority of India, Continental Foundation Joint Venture vs. Commissioner of Central Excise, Chandigarh - I, P.T.R. Exports (Madras) Pvt. Ltd. vs. Union of India, Commissioner of Sales Tax, Orissa vs. Jagannath Cotton Company, State of Rajasthan vs. J.K. Udaipur Udyog, Bannari Amman Sugars Ltd. vs. Commercial Tax Officer, State of Punjab vs. Nestle India, Kolhapur Canesugar Works Ltd. vs. Union of India, Banshidhar vs. State of Rajasthan, M/s Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh, State of Orissa vs. M/s M.A. Tulloch and Co., Union of India vs. Hindustan Development Corporation, R.C. Tobacco (P) Ltd. vs. Union of India
• Laws Referred To: Central Excise Act, 1944, Finance Act, 2003, Central Excise Tariff Act, 1985, General Clauses Act, 1897
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: K N CHOUDHURY; B SHARMA
• Assessee Lawyers: A K BHATTACHARYYA
• Keywords: Excise duty exemption; Industrial Policy; Legitimate Expectation; Promissory Estoppel; Fiscal incentive
• Section: 154; 5A; 38A

Judgement Text

"WP(C) 750/2010 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY Feeling distressed by the withdrawal of the fiscal incentive professed under the new industrial policy in the Northeastern Region embodied in the office memoran dum No. EA/1/2/96-IPD dated 24/12/1997 of the Ministry of Industry and Commerce, Department of Industrial Policy and Promotion, Government of India by way of ex emption of duty under the Central Excise Act, 1944 (for short hereafter referred to as the Act) for its manufactured items of pan masala and other tobacco pro ducts the petitioner has mounted this assailment seeking invalidation of the imp ugned decision and restoration of the concession with all consequential benefits . By orders dated 9/3/2010, the operation of the impugned notifications 11/2007- CE dated 1/3/2007 and No. 21/2007-CE dated 25/4/2007 had been kept in abeyance. 01. I have heard Mr. A.K. Bhattacharyya, Sr. Advocate assisted by Mr . S.K. Medhi, Mr. R.K. Bharali, Mr. J. Das and Mr. A. Pathak, Advocates for the petitioner and Mr. K.N. Choudhury, learned Additional Advocate General, Assam, a nd Mr. B. Sharma, learned Central Government Standing Counsel, for the State as well as the Union respondents respectively. 02. The contentious pleadings dealt case wise lay the essential fact s. The petitioner in WP(C) 749/2010 has introduced itself to be a Company incorp orated under the Companies Act, 1956 with its registered office at 1711, S.P. Mu kherjee Marg, in New Delhi having fifteen units functional in the State of Assam out of which eight are exclusively engaged in the manufacture of pan masala. Th e Central Government in the Ministry of Industry and Commerce, Department of Ind ustrial Policy and Promotion, in order to provide a fillip to industrial growth in the Northeastern Region through its Northeastern Industrial Policy conveyed b y the office memorandum No. EA/1/2/96-IPD dated 24/12/1997 announced new initiat ives and incentives amongst others by way of central excise and income tax exemp tions on various excisable commodities/goods including pan masala for a period o f 10 years from the date of commencement of commercial production thereof or the date of issuance of the notification whichever was later. Consequent upon the a bove declaration, the Central Government issued notifications No. 32/99-CE and 3 3/99-CE dated 8/7/1999 under the Act read with other legal provisions as mention ed therein in reiteration. Thereunder the Central Government exempted the specif ied goods from excise duty or additional excise duty with regard to the units lo cated in certain areas/industrial estates etc. The exemption so granted was exte nded to new industrial units that had commenced their commercial production on o r after 24/12/1997 as well as those that had existed before that date but had un dertaken substantial expansion by way of increase in their installed capacity by not less than 25% on or after the said date. 03. According to the petitioner, though it was initially hesitant to set up its units in the Northeastern Region due to logistical and locational pr oblems as well as other difficulties, in view of the assurance of excise duty ex emption for a period of 10 years, it decided to do so and thus set up manufactur ing units within the areas specified in the aforementioned notifications. The co mmercial production in the fifteen units so established in the industrial estate , Bamunimaidam, Guwahati of which 8 were devoted to the manufacture of pan masal a commenced in the years 2001, 2002, 2006 and 2007. In the process it has invest ed huge amounts generating as well substantial employment to the locals besides stimulating industrialisation in the Region. The petitioner has claimed that its total investment in the projects as on 30/9/2009 is Rs. 90.65 crores. A chart h as been furnished by it disclosing the details of investment in the pan masala u nits and the dates of commencement of commercial production in them. It has main tained that its investment in the pan masala units has been to the tune of Rs. 2 9.09 crores which employ about 400 persons. According to it, it has also entered into various agreements for carrying out the manufacturing process and has sche med several new ventures in the Northeastern Region acting on the commitment tha t the exemption would continue for a full term of 10 years as alluded in the not ifications No(s) 32/99-CE and 33/99-CE. It having satisfied the eligibility crit eria as mentioned in the North East Industrial Policy, 1997, (for short hereafte r referred to as the Policy 1997) and being entitled, availed the benefit of exe mption from payment of excise duty on the finished goods manufactured and cleare d by it and was duly allowed the refund of such duty deposited by it since the y ear 2001 following the verification of its claims relatable thereto. 04. The North East Industrial and Investment Promotion Policy, 2007 (for short hereafter referred to as the Policy 2007) promulgated vide Office Mem orandum No. 10(3)/2007-DBA-II/NER dated 1/4/2007 by the Government of India in t he Ministry of Commerce and Industry, Department of Industrial Policy and Promot ion followed which though approved a package of fiscal incentives and other conc essions for the North East Region with effect from that date, catalogued pan mas ala covered under Chapter 21 of the First Schedule to the Central Excise Tariff Act, 1985 (for short hereafter also referred to as the Tariff Act, 1985) in the Negative List of industries identified as ineligible for the benefits thereund er. The petitioner, however, has insisted that the policy evinced that all exist ing industrial units that had commenced production on or before 31/3/2007 would enjoy the exemption benefits and that therefore though pan masala was included i n the Negative List of Policy, 2007, these units having commenced production on or before 31/3/2007 were entitled to avail the fiscal incentives under Policy 19 97. 05. By the impugned notification No. 21/2007-CE dated 25/4/2007, the benefits hitherto extended vide the notifications No. 32/99-CE and 33/99-CE to the petitioner were sought to be withdrawn vis-à-vis pan masala falling under Ch apter 21 of the First Schedule to the Tariff Act, 1985 signifying the mandate of payment of full excise duty by the manufacturers of the said commodity/goods. C ontending that such unilateral withdrawal is arbitrary and unwarranted as well a s annihilative of its legitimate expectation besides being impermissible qua the precept of promissory estoppel, the petitioner claims to have unsuccessfully re presented before the various authorities of the concerned Departments of both th e Governments and distraught by their gelid response has turned to this Court fo r judicial intervention. It, however, has referred to the office memoranda dated 22/11/2007, 24/1/2008 and 23/2/2009 of the Ministry of Commerce and Industries, Department of Industrial Policy and Promotion, Government of India, exhorting t he Ministry of Finance, Department of Revenue for a decision on the petitioner’s request for the reconsideration of the withdrawal of excise duty exemption to p an masala industries set up under the Policy 1997. 06. The respondents 1 to 4 have in two instalments submitted their r ecorded version. In the counter first in point of time represented to have been filed on behalf of the respondent No. 2 and affirmed by the Assistant Commission er of Central Excise, Guwahati, the promulgamation of the policy 1997 and the no tifications No. 32/99-CE and 33/99-CE dated 8/7/1999, the incentives thereunder including central excise holiday for a period of 10 years for the goods specifie d therein vis-à-vis the industrial units identified, the entitlement of the peti tioner and the grant thereof to it have been admitted. The answering respondents have averred that subsequent thereto though the Central Government issued notif ication No. 45 /99 dated 31/12/1999 under section 5A of the Act whereby the noti fications No. 32/99-CE and 33/99-CE dated 8/7/99 were amended with effect from t hat date excluding all tobacco related products including pan masala falling und er Chapter 24 or heading No. 21.06 of the First Schedule or Second Schedule of t he Central Excise Tariff Act, 1985, from the purview of the exemption, the benef it was, however, restored by the notification no. 1/2000 dated 17/1/2000. Therea fter by Notification No. 1/2001-CE dated 22/1/2001 the exemption on cigarettes w as withdrawn. This was followed by the notification No. 6/2001-CE dated 1/3/2001 withholding the excise duty exemption on all goods excluding the same from the ambit of the notifications No. 32/99-CE and 33/99-CE dated 8/7/99. According to the answering respondents, the Government of India, on a due consideration of th e achievements in the realm of industrial development in the North East Region, mushroom growth of tobacco related companies and heavy refund due to excise duty exemptions, in public interest by the Finance Act, 2003 inserted section 154 an d consequently rolled back the benefit of excise duty exemption with retrospecti ve effect thus effecting cessation of the benefits under Policy 1997 vis-à-vis p an masala. Reference to the determination made by the Apex Court in R.C. Tobacco (P) Ltd. versus Union of India, (2005) 7 SCC 725 sustaining the aforementioned amendment of the Central Act, 1944 by the Finance Act 2003 has been made in endo rsement of this stand. 07. According to the answering respondents, however, in view of the persistent demands of the affected companies/units, the Government of India issu ed another notification No. 69/03 dated 25/8/2003 also under section 5A of the A ct granting exemption to the extent of 50% of the central excise duty under cert ain conditions stipulating inter alia that the benefit would be extendable to th e units that had availed incentives under the notification No(s) 32/99-CE and 33 /99-CE and had continued their manufacturing activities on or after 28/2/2001. S ubsequent thereto vide notification No. 8/2004 dated 21/1/2004 under section 5A of the Act, the Government of India in suppercession of the notification No. 69/ 03 dated 25/8/2003 exempted all goods falling under sub-heading 2401.90, 2402.00 , 2404.49, 2404.50 or 2404.99 of the First Schedule or Second Schedule of the Ta riff Act, 1985 from the whole of the excise duty etc. payable thereon subject to certain conditions as enumerated therein. Under these notifications dated 25/8/ 2003 and 21/1/2004, the petitioner was entitled to retain amounts payable as exc ise duty and invested in the projects undertaken by it to be subsequently verifi ed and scrutinised by the Investment Appraisal Committee for issuance of a certi ficate on due satisfaction thereof. 08. On a post assessment of the arrangement so contemplated, the Gov ernment decided against the retention of Central Excise Duty for investment and thus issued notification No. 28/04 dated 9/7/2004 introducing Escrow Account Mec hanism System and accordingly amended the contents of the notification No. 8/200 4 dated 21/1/2004. The post escrow period also witnessed various problems accord ing to the answering respondents, as the Investment Appraisal Committee detected mis-utilisation of the investment as well as utilisation of the escrow fund. Th e Government decided to suspend the operation of the escrow account and eventual ly issued notification No. 11/07 dated 1/3/2007 also under the above provision o f the Act amending the one dated 21/1/2004 clarifying that the exemption contain ed therein would not be available to the goods cleared on or after the first day of March, 2007. 09. While reiterating that the promise of incentives under Policy 19 97 had ceased with the amendment vide the Finance Act, 2003 read with the Ninth Schedule thereto excluding pan masala and other products specified therein from the purview of the exemption, the partial respite from this levy granted by the notification No. 69/03 dated 25/8/2003 and 11/07-CE dated 9/7/2004 has been asse rted to be independent of the aforementioned policy and not by way of extension thereof. It has been stated that out of an amount of Rs. 100 crores represented by the petitioner to have been invested during the pre-escrow period, only an am ount of Rs. 34 crores had been certified by the Investment Appraisal Committee t o have been genuinely applied in its plants and machinery and social infrastruct ure projects. 10. Referring to the negative list in the Policy 2007, the answering respondents traced the radix of the said measure to section 154 of the Finance Act, 2003 whereby tobacco and goods covered under Chapter 21 of the First Schedu le of the Tariff Act 1985 including pan masala had been withdrawn from the ken o f the exemption of the central excise duty as evidenced by the Ninth Schedule th ereto. The impugned notification dated 25/4/2007 has been justified on this plea as well as on the ground of public interest bearing in mind the adverse ramific ations of the use of tobacco products and the resultant health hazards in the co untry. The answering respondents have insisted that the assurance of the continu ance of the benefit under Policy 1997 vis-à-vis industrial units that have comme nced commercial production on or before 31/3/2007 would not apply for tobacco an d tobacco based products. The impugned notification dated 25/4/2007 has also bee n endorsed stating that the grant of exemption of excise duty in respect of toba cco products did not yield any noticeable progress or industrial development as contemplated. 11. In reiteration and reaffirmation of its pleaded assertions, the petitioner has highlighted the inconsistency in the approach of the respondents in withdrawing the exemption from central excise duty on pan masala and tobacco while sustaining the income tax exemption/rebate extended by the Policy 1997. Ac cording to it, the grant of exemption of excise duty after the incorporation of section 154 of the Finance Act, 2003 by the notification No. 69/2003-CE dated 25 /8/2003 patently belied the plea of extinction of the promise qua the said incen tive by such amendment. While insisting that the Policy 2007 saved the petitione r’s pan masala manufacturing units that had commenced production on or before 31 /3/2007 it reiterated its assailment of the impugned notification dated 25/4/200 7 as illegal, arbitrary and malafide. Protection of section 38A of the Act has a lso been insisted upon and the justification of public interest vis-à-vis the im pugned notification has been refuted. 12. In their additional affidavit, the respondent No. 1 to 4 have be sides contending that the counter filed by the respondent No. 2 is also on behal f of the remaining respondents has questioned the maintainability of the writ pe tition on the ground of delay as the impugned notification is dated 25/4/2007. A part from asserting that the petitioner even otherwise has failed to lay any fac tual foundation to invoke the doctrine of promissory estoppel they have accused it of suppression of the material fact that it had, the impugned notification no twithstanding, been paying central excise duty for the pan masala manufactured i n terms of Pan Masala Packing Machines (Capacity, Determination and Collection o f Duty) Rules, 2008 (hereafter referred to as the Duty Rules). As the withholdin g of the said fact had a vital and decisive bearing on the grant of interim orde r in its favour, the respondents have pleaded that the petitioner has thereby di sentitled itself for any equitable relief from this Court. 13. The petitioner in its reply to this additional affidavit of the respondents has in substance sought to explain the time lag by referring to its persistent efforts with the various authorities of the Government Departments fo r the mitigation of the prejudicial consequences of the impugned notification. A ssurances to it for restoration of the benefit of exemption made by concerned au thorities but eventually departed from has also been cited as a reason for the i nterval. While denying the imputation of suppression of any material the petitio ner has insisted that following the issuance of the notification No. 11/2007 dat ed 1/3/2007, it was obliged in law to pay the consequential excise duty and that , therefore, the charge is wholly misplaced. According to it, having regard to i ts pleadings and the documents on record, a sound foundation exists for invocati on of the principles of legitimate expectation and promissory estoppel in denunc iation of the impugned decision. 14. The petitioner’s pleaded version in WP(C) 750/2010 is substantia lly akin to those as above except for a few factual variations. It is aggrieved by the notification No. 11/07 dated 1/3/2007 alluded hereinbefore seeking to wit hdraw the benefits under the Central Excise Notifications No. 32/99-CE and 33/99 -CE dated 8/7/99 issued in furtherance of the Policy 1997 so far as tobacco prod ucts as referred to therein are concerned. According to the petitioner, it is en gaged in the manufacture of zarda (scented tobacco/pan masala) in the four out o f its 15 manufacturing units located in the Industrial Estate, Bamunimaidan, Guw ahati. Further three more such tobacco manufacturing units have also been set up at Agartala being incentivised by the representations made in the aforementione d policy. Contending that the commercial production in the said units had commen ced in the years 1999, 2000, 2001, 2002, 2003, 2007 and 2008 respectively, it ha s asserted that it has thereby provided employment to about 2200 local persons t hereat. It has claimed to have invested Rs. 6911.03 lakhs in its said units till September, 2009, and has claimed to have been sanctioned the benefit of refund under the said Policy during the period 17/11/2000 to 28/2/2001. It has referred to the notifications dated 31/12/1999, 17/1/2000, 22/1/2001, 1/3/2001, 25/8/200 3, 21/1/2004 and 9/7/2004 mentioned by the Union respondents in their affidavits in WP(C) 749/2010. 15. The petitioner has maintained that pursuant to the notifications dated 21/1/2004 and 9/7/2004, it had entered into a tripartite escrow agreement with the concerned respondents on 21/6/2005. Reiterating its entitlement to the privileges granted by the Policy 1997 also under the Policy 2007, vis-à-vis its tobacco products, it has impugned the notification dated 1/3/2007 whereby the e xemptions contemplated in those dated 21/1/2004 and 9/7/2004 had been withdrawn vis-à-vis the goods cleared after 1/3/2007. It has assailed this notification as well as the one dated 25/4/2007 to be repugnant to the Policy 2007 besides bein g in arbitrary repudiation of the doctrines of promisory etoppel and legitimate expectation. Its failure, inspite of persistent representations to elicit redres sal of its grievances has also been recited. 16. The answering respondents have defended the impugned notificatio n dated 1/3/2007 to be in public interest and has denied the petitioner’s charge of arbitrariness, illegality and malafide. In their additional affidavit they h ave pleaded that the notification dated 25/8/2003 was not pursuant to any promis e held out by the Union Government and being under section 5A of the Act, it was permissible to rescind, vary and amend the grant accorded by it. They accused t he petitioner of suppression of the fact that the withdrawal of the benefit of e xemption granted to tobacco manufacturing units under the Policy 1997 by the ins ertion of section 154 in the Finance Act, 2003 had been upheld by the Apex Court in R.C. Tobacco versus Union of India, (2005) 7 SCC 725, for which the writ pet ition is liable to be dismissed in limine. They further contended that as pleade d by the petitioners, four of its seven units engaged in the manufacture of toba cco had admittedly commenced production after 2001 and were thus not eligible to avail the exemption under the notifications dated 21/1/2004 and 9/7/2004, the c ut off date therefor being 28/2/2001. They have urged as well against the applic ability of the doctrine of promissory estoppel and legitimate expectation. 17. The petitioner in its affidavit in reply has categorically denie d the allegation of misutilisation of funds and has instead urged that faced wit h numerous arbitrary and unfair decisions it was compelled to approach this Cou rt to invoke its writ jurisdiction on more than one occasion. It refuted as well the respondents plea that the notifications dated 25/8/2003, 21/1/2004 and 9/7/ 2004 had failed to achieve their objectives and charged the respondents of causi ng hindrances against it on one hand and accused it of the non-implementation th ereof on the other. It contended that the Investment Appraisal Committee though had certified the investment of Rs. 35 crores out of its claim of Rs. 96 crores, it did not reject the petitioner’s investment claims of the remaining amount. 18. In this narrated backdrop of the rival assertions, Mr. Bhattacha ryya has emphatically argued that having regard to the underlying objective of t he policies involved and the unequivocal and conscious assurances of the highest administrative authorities, a purposeful interpretation for the effectuation th ereof ought to be adopted. As the petitioner admittedly was entitled to the bene fit amongst others of exemption from excise duty on its products as involved und er the Policy 1997, having duly complied with all the stipulations as embodied t herein, it is evidently qualified for the same under the Policy 2007 as well as is apparent from Clause 2 thereof. As the Policy 2007 has specifically identifie d the industrial units which have commenced commercial production on or before 3 1/3/2007 to be eligible to avail the benefits/incentives under the Policy 1997 a s endorsed by the office memorandum No. 10(3)/2007-DBA-II/NER dated 1/4/2007, th e impugned notifications dated 1/3/2007 and 25/4/2007 being obtrusively in repud iation thereof are patently illegal and nonest in law. The learned Sr. Counsel h as insisted that though pan masala and tobacco products manufactured by it have been included in the Negative List in the Policy 2007, in view of the above savi ng clause, it having commenced its commercial production thereof on or before 31 /3/2007, cannot be denied the benefit of the incentives/exemptions sanctioned by the Policy 2007. This, Mr. Bhattacharyya, has pleaded is amply demonstrated amo ngst others by the office memorandum dated 22/11/2007, 24/1/2008 and 23/2/2009 o f the Department of Industrial Policy and Promotion, Government of India, urging upon the Finance Department to reconsider its decision of withdrawal of the pri vilege of exemption of excise duty on the said products. The notification dated 25/4/2007 has been denounced as well on the count that the grant of public inter est as mentioned therein is visibly vague and unintelligible in the attendant fa cts and circumstances. Referring to sections 5A and 38A of the Act, Mr. Bhattach aryya had maintained that the Policy 1997 has its roots in the legislative schem e outlined thereby, continuance of the benefit held out by it (policy 1997) bein g the mandate of section 38A. Any ’different intention’ as envisaged in this leg al provision thus necessarily has to be informed with relevant considerations in espousal of public interest to justify a departure, he urged and there being no ne in t he face of the two Policies as well as the notification dated 1/4/2007, in reinforcement thereof, the impugned notifications are null and void. In any c ase, the respondents having utterly failed to discharge their burden of demonstr ating such a different intention to promote public interest, the impugned notifi cations are visibly invalid, he contended. In any view of the matter, there bein g an apparent conflict on the issue between the two Ministries of the Central Go vernment which is constitutionally irreconcilable, the impugned notifications ar e liable to be adjudged as nonest, he pleaded. The learned senior Counsel refute d the plea that the notification dated 25/8/2003 is independent of the Policy 19 97. Referring to the various clauses of this notification as well, Mr. Bhattacha ryya has contended that it is obviously pursuant to the Policy 1997 and is to re main in force for a period of 10 years. 19. He argued that the impugned notification dated 1/3/2007 in parti cular having been issued before the Policy 2007, the reason therefor cannot thus be logically linked with the interpretation of the respondents based on the Neg ative List. The learned Sr. Counsel has profusely relied upon the pleaded averme nts demonstrating the steps taken by the petitioner in setting up its units for manufacture of pan masala and other tobacco products in the region specified by the Policy 1997, investments in connection therewith, employment statistics, dat e of commencement of production thereat as well as the excise duty paid so as to bolster its plea founded on legitimate expectation and promissory estoppel. Con tending that the petitioner inspite of its high and low in its business ventures pertaining to the units involved has still been pursuing the same inter alia by reinvesting its earnings in the plants and machineries inspite of heavy odds an d thus contributing to the economic growth of the region, Mr. Bhattacharyya has urged that in absence of any overwhelming evidence of overriding public interest justifying withdrawal of the exemption granted by the policies the impugned not ifications are palpably illegal and ought to be adjudged as such. 20. On the aspect of delay, the learned Sr. Counsel has persuasively argued that the concerned respondent authorities having failed to respond to th e repeated requests of the petitioner for redressal, it ought not to be non-suit ed on this ground. This is more so as the Department of Industrial Policy and Pr omotion, Government of India, held the view against the impugned decision and ha d been urging upon the Ministry of Finance for reconsideration thereof. As the p etitioner was thus waiting in bonafide expectation that its grievances would be mitigated without indulging in avoidable litigation, it ought not to be penalise d for the inexplicable omission on the part of the respondents. Mr. Bhattacharyy a pleaded that as with the issuance of the notification dated 1/3/2007, the peti tioner had no other alternative but to pay the excise duty as leviable on its pr oducts, the charge of suppression of this fact is wholly misplaced. As the Reven ue has not been prejudiced in any manner by the payment of the impost by it and thus it has not reaped any undue benefit out of the interim order granted, this plea as well ought to be dismissed, he contended. He also referred amongst other s to the prayers made in the writ petition to repeal this plea of the respondent s. Following decisions were relied upon to substantiate his arguments: State of Bihar and others versus Suprabhat Steel and others, (1999) 1 SCC 31 Secretary, Ministry of Chemicals and Fertilizers, Government of India, (2003) 7 SCC 1 State of Jharkhand and others versus Tata Cummins Ltd. and another, (2006) 4 SCC 57 Global Energy Limited and another versus Central Electricity Regulatory Commissi on, (2009) 15 SCC 570 U.P. Power Corporation Ltd. versus Sant Steels and Alloys (P) Ltd. and others, ( 2008) 2 SCC 777 (2000) 4 SCC 57 Dai-chi Karkaria vs Union of India. (2006) SUPPL GLT 211 Sunrise Biscuits Co. Ltd. & Anr. vs. Union of India. Praneswar Das and another versus State of Assam and others AIR 73 GHY 51, Vadilal Chemical Ltd. vs. State of A.P. & Anr (2005) 6 SCC 292 Union of India and others versus Shree Ganapati Rolling Mills Pvt. Ltd. and othe rs, (2006) 4 GLT 1 M/s Tilokchand and Motichand and others versus H.B. Munshi and another, (1969) 1 SCC 110 Ramchandra Shankar Deodhar and others versus State of Maharashtra and others, (1 974) 1 SCC 317 Hindustan Petroleum Corporation Ltd. versus Dolly Das, (1999) 4 SCC 450 (1982) 1 SCC 379 R.S. Makashi & Ors vs. I.M. Menom & Ors. (1972) 3 SCC 432 P.B. Roy vs. Union of India. 2009 (235) ELT 5 Gillete India Ltd. vs. Union of India. MRF Ltd., Kottayam versus Asstt. Commissioner (Assessment), Sales Tax and others , (2006) 8 SCC 702 (2008) 2 SCC 777 U.P. Power Corporation Ltd. and Another vs Sant Steels & Alloys (P) Ltd. and Others. (2010) 3 SCC 274 State of Bihar vs Kalyanpur Cements. (1979) 2 SCC 409 M/s. Motilal Padampat Sugar Mills Co. Ltd. vs State of U.P. and Ors. (2006) 8 SCC 702 MRF Limited, Kottayam vs Asstt. Commissioner (Assessment) Sales Tax and Ors. Union of India and others versus Hindustan Development Corporation and others, ( 1993) 3 SCC 499 (1998) 1 SCC 572 Sales Tax Officer & Another vs Shree Durga Oil Mills and anothe r. Mahabir Vegetable Oils (P) Ltd. versus State of Haryana and others, (2006) 3 SCC 620 21. In controversion of the above, the learned Additional Advocate G eneral, Assam, reiterated the assailment on the maintainability of the writ peti tions on the ground of delay and shielding of material facts. Mr. Choudhury has urged that the omission on the part of the petitioner to mention about the payme nt by it of excise duty on its products in its pleadings amounts to a conscious failure to make candid disclosure of relevant facts which is a sine qua non for the invocation of the equitable jurisdiction of this Court under Article 226 of the Constitution of India. As admittedly the petitioner had been making such pay ment, its intentional suppression of the above fact weighed in its favour facili tating the grant of the interim order. There being no explanation worth the name for the appreciable time lag between the issuance of the impugned notifications and the institutions of the writ petitions, those are liable to be dismissed in limine on the ground of delay and laches as well, he urged. 22. Mr. Choudhury argued that Policy 2007 not being under challenge and as admittedly pan masala is included in the Negative List as incorporated th erein, the petitioner’s impugnment of the notification dated 25/4/2007 is wholly misconceived. As the power and the discretion to alter a policy on relevant con siderations paramount whereof is public interest is available to the state and t here being no vested right in any one to restrain it, the petitioner’s assailmen t is vacuous and is not worth any analytical scrutiny, he insisted. As the impug ned notification dated 25/4/2007 has been issued to give effect to the Policy 20 07, which incidentally has been spared of any challenge, the aspect of public in terest need not be strictly enquired into as well. In that view of the matter, t he decisions cited by the petitioner emphasising scrupulous compliance of a publ ic policy in effect reinforce the validity of the impugned notification dated 25 /4/2007, he contended. Not only the plea of promissory estoppel is unavailable t o the petitioner against the exercise of a statutory and or a legislative power, it having omitted to question the validity of the Policy 2007, its contentions founded on promissory estoppel and legitimate expectation are unworthy of any at tention, he argued. While pleading that the Policy 2007 is in public interest, t he learned Additional Advocate General underlined that in absence of any materia l on record to the contrary, the notification dated 25/4/2007 in conformity ther ewith is wholly unassailable. Reiterating that the withdrawal of the benefit of the exemption vide section 154 of the Finance Act, 2003 read with Schedule IX th ereof had been upheld by the Apex Court, Mr. Choudhury pointed out that as the P olicy 1997 remained in vogue even thereafter, the notification dated 25/8/2003 w as issued granting partial exemption from payment of excise duty to the units as specified therein which had commenced production on or after 24/12/1997 but not later than 28/2/2001. The stipulations contained in the notification dated 25/8 /2003 being conditioned by the prescriptions of the one dated 1/3/2001, it was e vidently independent of the Policy 1997, he argued. The impugned notification da ted 1/3/2007 being a precursor of Policy 2007 and as both are complementary of e ach other, in absence of any challenge to the said policy, this notification on this count as well is unimpeachable. 23. With reference to section 38A of the Act, the learned Additional Advocate General has insisted that as the Policy 2007 promulgated after the exp iry of 10 years as envisaged by the Policy 1997 conveys an unmistakeable dictum of exclusion of the units engaged in the manufacture of goods included in the ne gative list, it is wholly inconceivable that the benefits and incentives under t he former policy were intended to continue based on the date of commencement of production. Mr. Choudhury has thus urged that having regard to the progression o f events culminating in the Policy 2007, application of section 38A to secure th e benefit of incentives/exemptions hitherto sanctioned by the Policy 1997 to the manufacturing units commencing production on or before 31/3/2007 is incomprehen sible. In order to endorse his assertions, the learned Additional Advocate Gener al pressed into service the following decisions. (2008) 12 SCC 481 K.D. Sharma vs. Steel Authority of India. (2007) 10 SCC 337 Continental Foundation Joint Venture Holding Nathpa, H.P. vs Commissioner of Cen tral Excise, Chandigarh - I. P.T.R. Exports (Madras) Pvt. Ltd. versus Union of India and others, (1996) 5 SCC 268 Sales Tax Officer and another versus Shree Durga Oil Mills and another, (1998) 1 SCC 572 Commissioner of Sales Tax, Orissa and another versus Jagannath Cotton Company an d another, (1995) 5 SCC 527 (2004) 7 SCC 673 State of Rajasthan vs. J.K. Udaipur Udyog. DAI-ICHI Karkaria Ltd. versus Union of India and others, (2000) 4 SCC 57 Bannari Amman Sugars Ltd. versus Commercial Tax Officer and others, (2005) 1 SCC 625 State of Punjab versus Nestle India and another, (2004) 6 SCC 465 U.P. Power Corporation Ltd. and another versus Sant Steels and Alloys (P) Ltd. a nd others, (2008) 2 SCC 777 Kasinka Trading and another versus Union of India and another, (1995) 1 SCC 274 Shrijee Sales Corporation and another versus Union of India, (1997) 3 SCC 398 M/s Motilal Padampat Sugar Mills Co. Ltd. versus State of Uttar Pradesh and othe rs, (1979) 2 SCC 409 Kolhapur Canesugar Works Ltd. versus Union of India and others, (2000) 2 SCC 536 Bansidhar and others versus State of Rajasthan and others, (1989) 2 SCC 557 State of Orissa and another versus M/s M.A. Tulloch and Co. etc., AIR 1964 SC 12 84 (2003) 5 SCC 437 Union of India and another vs. International Trading Co. and an other. Sethi Auto Service Station and another versus Delhi Development Authority and ot hers, (2009) 1 SCC 180 Dhampur Sugar (Kashipur) Ltd. versus State of Uttaranchal and others, (2007) 8 S CC 418 Novopan India Ltd., Hyderabad versus Collector of Central Excise and Customs, Hy derabad, 1994 SUPP 3 606 Tata Iron and Steel Co. Ltd. versus State of Jharkhand and others, (2005) 4 SCC 272 R.C. Tobacco (P) Ltd. and another versus Union of India and another, (2005) 7 SC C 725 24. Before venturing into the issues of moment stirred by the compet ing pleadings and the arguments founded thereon, politic it would be to attend t o the challenge to the maintainability of the writ petitions at the threshold. T he respondents have sought for summary dismissal thereof on the grounds of delay and suppression of material facts. Whereas they contend that the petitioner had wilfully withheld the factum of payment of excise duty subsequent to the impugn ed notification dated 1/3/2007 and under the Duty Rules as well as the validatio n of the withdrawal of exemption of the benefits/incentives under the Policy 199 7 by the amendment of the Finance Act 1994 in the year 2003, it (petitioner) has denied the asseveration pleading its legal obligation to pay the impost. The pl ea of delay has been sought to be thwarted by referring to the string of represe ntations submitted by it as well as the communications issued by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Governmen t of India, persistently requesting the Ministry of Finance, Department of Reven ue, Government of India for a response to its (petitioner) request for a reconsi deration of the decision of withdrawal of the exemption of excise duty granted u nder the Policy 1997. As the parties have cited authorities in support of their respective assertions, the same need be surveyed to outline the essential legal perspective. 25. The Apex Court in M/s Trilok Chand and Moti Chand, supra, while observing that the Limitation Act does not in terms apply to claims against the State in respect of violation of fundamental rights did acknowledge the discreti on of a Court exercising writ jurisdiction to refuse a relief even though on mer its there is a substantial complaint, in case of long or unreasonable delay. 26. In P.B. Roy, supra, the Apex Court declined to interfere with th e discretion exercised against the plea of delay on the ground that after the ad mission of the writ petition and hearing of the arguments the rule that delay ma y defeat the rights of the parties is relaxed and need not be applied, if the ca se is positively good . That the rule against enquiry into belated and stale claims is n ot one of law but of practice was reiterated by the Apex Court in Ram Chandra Sh ankar (supra). While underlining that there is no inviolable rule that the Court must necessarily refuse to entertain a cause on the ground of delay, it ruled t hat each case must be appraised on its own facts. It was propounded that the pri nciple of refusing relief on that count is that the rights, which have accrued, to others in the interregnum ought not to be allowed to be disturbed unless ther e is a reasonable explanation for the interval. 27. The preliminary objection based on delay was sustained in the co ntextual facts of R.S. Makasi and others, supra, by the Apex Court noticing that during the intervening period of 8 years vested rights regarding seniority rank and promotions had accrued to a large number of respondents therein. 28. In Hindustan Petroleum Corporation, supra, the Apex Court in the context of the avowal of laches of the respondents therein observed that delay by itself may not defeat the claim for relief unless the position of the adversa ry is so altered that it cannot be retracted on account of lapse of time on the inaction of the other party. That the appellants therein would not be put to und ue hardship in any manner by reason of the delay as pleaded was also taken note of. 29. Delay thus is not an irremediable vitiating malady acknowledged by the rule of law eventuating refusal of relief though otherwise justified on t he merit of the claim. It is a matter of discretion exercisable in the facts of a given case, premium however not extendable to a party consciously guilty of in action, negligence and laches resulting in conferment and consolidation of right s on the adversary. While delay ought not to be applied as an obdurate rule to d ecline relief in law, if otherwise allowable, inordinate delay would justify ref usal of judicial intervention more particularly, if the same would result in div estiture of a right acquired meanwhile. 30. The impugned notifications though dated 1/3/2007 and 25/4/2007, the writ petitions have been instituted on 1/2/2010 and 21/12/2009 respectively. The petitioner has averred on oath that following the decision of the withdrawa l of exemption by these notifications, a series of representations had been file d by it and others to the various authorities of the Central Government seeking restoration of the incentives assured by the Policy 1997. The representations an nexed to the writ petitions bear out the correctness of the contents thereof to this effect and range from 14/7/2008 to 13/6/2009. Coupled with this are the off icial communications made by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India, with the Ministry of Fin ance, Department of Revenue, Government of India, urging upon the latter to take a decision on the petitioner’s request for reconsideration of notifications of withdrawal of exemption. In the first office memorandum dated 22/11/2007 of the Deputy Secretary to the Government of India, Department of Industrial Policy and Promotion, it had inter alia been mentioned that though pan masala was includ ed in the negative list under Policy 2007, no such list was contemplated in the earlier policy and that in terms of the office memorandum No. 10(3)/07-DBA-II/NE R dated 1/4/2007, the industrial units which had commenced industrial production on or before 31/3/2007 were to continue to receive the benefits/incentives unde r the earlier policy for a period of 10 years. A request was thus made to recons ider the plea of the petitioner in the above premise. The office memorandum date d 24/1/2008 and 23/2/2009 are in reiteration of the above. 31. While the representations submitted by the petitioner to the var ious authorities clearly relate to the grievances as expressed by it in the inst ant petitions seeking their remedial intervention, the official correspondences of the Ministry and Commerce and Industry, Department of Industries Policy and P romotion had the potential of generating some expectations in it of the forthcom ing steps for the mitigation of its remonstrance. The materials on record do not demonstrate that the omission on the part of the petitioner to immediately appr oach this Court following the issuance of the impugned notifications has vested any right in the respondents, which if the issues are scrutinised and disposed o f on merits, would be prejudicially affected. The facts and circumstances of the case do not in the estimate of this Court portray deliberate and wilful inactio n and laches on the part of the petitioner so as to disqualify its impugnment to be adjudicated on merits. The plea therefor is unsustainable. 32. On the aspect of suppression of facts, the Apex Court in K.D. Sh arma, supra, while emphasising that the petitioner seeking prerogative writs mus t come with clean hands and disclose all facts failing which his petition may be dismissed at the threshold, observed that such a consequence would ensue if the Court, on a scrutiny of the textual facts is satisfied that it had been misled and or deceived by such concealment or retraction. 33. While dwelling on the import of the word suppression employed in the proviso to section 11A of the Central Excise Act, 1944, the Apex Court, i n Continental Foundation etc. (Supra) elucidated that mere omission to give corr ect narration would not be so unless it is deliberate to evade payment of duty. It observed that when the facts are known to both the parties, omission by one p arty to do what he might have done would not render it to be a suppression. 34. The pleaded averments in the writ petitions truly do not refer e ither to the determination made in R.C. Tobacco, supra, vis-à-vis section 154 of the Finance Act 2003 as well as the payment of excise duty by the petitioner su bsequent to the impugned notification dated 1/3/2007 under the aforementioned Ru les. It, however, has sought for amongst others a direction to the respondents t o refund such duty deposited by it after 1/3/2007/25/4/2007 respectively togethe r with interest thereon. That it had been paying the impost under the said Rules after 1/3/2007 is a matter of record. Non-disclosure of the above fact, however , in the opinion of this Court does not enfeeble the petitioner’s challenge othe rwise to the notifications and the decision preceding the same for withdrawal of the exemption from payment of excise duty vis-à-vis its products. The revelatio n of the fact of payment of excise duty by it after 1/3/2007 though might have h ad some bearing on the mentations qua the prayer for interim relief, omission to do so per se does not amount to, in the opinion of this Court, a distortion of the facts disclosed or suppression of any vital information having a material an d decisive bearing on the merit of its challenge. Noticeably no appeal had been preferred by the respondents against the interim order and evidently on the paym ent of excise duty by the petitioner, it has not suffered any prejudice on accou nt thereof. Deposit of levy as well cannot act as an estoppel against the petiti oner to pursue its impeachment of the impugned decisions/notifications. The part ies have articulated weighty contentious issues, which demand judicial scrutiny. The decisions cited by the respondents in the factual panorama as above, do not clinch this issue in their favour. The objection based on suppression of facts as well is unsustainable. 35. Apt it would be next, to be abreast with the judicial elucidatio ns on the other legal propositions encompassed in the rival assertion. DELEGATED LEGISLATION 36. In State of Bihar versus Suprabhat Steel Limited and others, sup ra, a notification issued by the State Government in exercise of power under sec tion 7 of the Bihar Finance Act, 1981, was contended to be repugnant to the Biha r Industrial Incentive Policy, 1993, as thereby certain category of industrial u nits were sought to be excluded from the benefits envisaged thereunder. The Apex Court while observing that the notification under the aforementioned legal prov ision was an instrument to enable the industrial units to avail the incentives a nd benefits declared by the State Government in the Policy, it would not be perm issible for it, in the exercise of such power to deny any benefit which is other wise available to an industrial unit thereunder. Noticing that the policy had be en issued on being approved by the Cabinet, it was held that any notification so issued if found to be inconsistent therewith, would be bad to that extent. Unmi stakeably, the legal premise of the conclusion is that a notification under sect ion 7 of the Bihar Finance Act, 1981 was comprehended to further the attainment of the objectives of the Policy and not to scuttle those. 37. While enumerating the grounds on which the vires of a subordinat e legislation which in the contextual facts in DAI-CHI, KARKARI Limited, supra, was a notification under section 25 of the Customs Act, 1962, could be questione d namely (i) non-conformance with the parent statute (ii) conflict with any othe r enactment (iii) unreasonableness and manifest arbitrariness and (iv) violation of the principles of industrial justice, the Apex Court observed that in situat ions where, the State power is one to be exercised in public interest, the same necessarily has to be wielded in accordance with the spirit of the constitution. While dealing with the notifications whereby exemption from duty under the Cust oms Act, 1962, was partially withdrawn, it was held that the Government having f ailed to establish any overriding public interest necessitating such reduction, those were unsustainable and were thus interfered with. In this context, the Ape x Court observed that in respect of exemptions that may have been made by the Go vernment, the doctrine of promissory estoppel would not be applicable if the cha nge is impelled by public policy. 38. The Apex Court in Secretary, Ministry of Chemical and Fertiliser , supra, held that the contents of a policy document ought not to be interpreted as statutory provisions but the Government which assumes the dual role of polic y maker and the delegatee of legislative power cannot in its megrim give a go by to the policy guidelines evolved by itself and is required to adopt a transpare nt criteria so as to minimise the scope of subjective approach. The delegated le gislation thus should be broadly and substantially in conformity with the policy formulations as otherwise it would be exposed to the challenge on the ground of arbitrariness, it held. While acknowledging that the breach of policy decision simpliciter would not be a ground to invalidate a delegated legislation, it emph asised that the subordinate law making authority is to be essentially guided by the policy and the objectives of the primary legislation and it would not be ope n for the government to stray haywire and flout or debilitate the said norms. 39. The Apex Court in State of Jharkhand and others versus Tata Cumi n Limited and another, supra, underlined that the implementing notifications in the context of an industrial policy, promising tax exemption for setting up an i ndustry in the backward area should be read liberally keeping in mind the object ives envisaged thereby (policy). While recognising the right of an authority gra nting an exemption to revoke the same, the Apex Court in U.P. Power Corporation Limited, supra, interfered with a notification issued under section 49 of the El ectricity (Supply) Act, 1948, reducing the concession of the hill development re bate earlier allowed to the industrial units as specified principally on the gro und that the said legal provision did not stipulate the withdrawal of the benefi t so granted unreservedly at any point of time. The Apex Court was of the view t hat the impugned notification being in the form of a delegated legislation such curtailment in the manner effected was impermissible. The plea of public interes t in support of such action in the facts was also rejected to be not borne out b y the facts. In this context, their Lordships observed that the Government or it s instrumentality ought to abide by their commitments in order to sustain the fa ith of the polity in the governance more particularly in the domain of represent ations made by them so as to attract entrepreneurs to act on those by altering t heir position. 40. That delegated legislation ought to follow formulations designed by a statute or a policy and operate in conformity therewith was reiterated in Global Energy Limited, supra. Government cannot speak in two voices 41. With reference to section 7 of the Bihar Finance Act, 1981, the Apex Court in State of Bihar and others versus Suprabhat, supra, had remarked th at as the notification thereunder is comprehended to extend the benefits of the industrial incentive policy of the State, the exercise of power thereunder canno t be in nullification of the said purpose. That the State which is represented by various departments has to speak in one v oice was underlined by the Apex Court in Vadilal Chemicals Limited in which the exemption under the liberalised state incentive scheme granted to the appellants units on the certification of the industries department of the State was sought to be withdrawn by the Deputy Commissioner of Commercial Tax, Hyderabad. 42. A Division Bench of this court in Union of India and others vers us Shri Ganapati Rolling Mills Pvt. Ltd. and others, supra, in the context of th e Government of India’s industrial policy and other concessions to new industrie s in the North East Region and a subsequent notification occasioning modificatio ns thereto, had in emphatic terms declared that in the Cabinet form of Governanc e in vogue in the country, the decisions taken by the Government are bound to be implemented by each and every wing thereof. It held that the concerned departme nts are required to effectuate a policy decision so taken by the Cabinet even if it involves drafting of a legislation or framing of Rules as the case may be. T heir Lordships were of the view that as issuance of notifications in the exercis e of statutory functions in order to give effect to a broad policy decision of t he Cabinet is construed to be a ministerial act, it would be futile to contend t hat the policy decisions would remain a dead letter unless the concerned departm ent moves in the matter and issues notification implementing the same. Their Lor dships observed that the citizens cannot be made scape goats in the cross fire b etween interdepartmental feuds or deadlocks. Protection under Section 38A of the Central Excise Act, 1944 43. Whereas in Gillete India Limited, supra, the High Court of Himac hal Pradesh interpreted Clause (c) of section 38A of the Act to be protective of a right, privilege, obligation or liability acquired, accrued or incurred under any rule, notification or order amended, repelled, superceded or rescinded and thus annulled the impugned notification whereby the benefit of exemption from wh ole of excise duty availed by the petitioners, was recalled by the Allahabad Hig h Court in Simbholi Sugar Mills Limited, supra, while tracing the insertion of t he above provision in the Act w.e.f. 28/2/1944 adjudged in favour of continuance of a proceeding under Rule 10 of the Central Excise Rules, 1944, which stood om itted w.e.f. 17/11/1980 vide a notification dated 12/1/1980 as referred to there in. Vis-à-vis the scope of section 38A and the applicability thereof, their Lord ships of the Allahabad High Court propounded in favour of the savings otherwise contemplated thereby in absence of a different intention to the contrary. 44. A constitution Bench of the Apex Court in State of Orissa and an other versus M/s M.A. Tulloch and Company, supra, authoritatively declared the p rinciple on which the saving clause in section 6 of the General Clauses Act, 189 7, was based. Their Lordships propounded that every latter enactment which super cedes an earlier one or puts an end to an earlier state of law is presumed to in tend the continuance of the right accorded and liability incurred under the supe rceded enactments unless there were sufficient indications-express or implied-in the later enactment designed to completely obliterate the earlier state of law. While highlighting that legislative intent is the final determinant, it was hel d that there was no distinction between an express provision and one implied, fo r it is only the form that differs in the two cases. 45. That for the application of a saving clause in the event of a re peal of a statute accompanied by a re-enactment of a law on the same subject, a scrutiny of a contrary intention in the new legislation is of considerable relev ance was reiterated by the Apex Court in Banshidhar versus State of Rajasthan, s upra. 46. The application of section 6 of the General Clauses Act was prop ounded to be extendable only on the repeal of a Central Act or Regulation and no t to a Rule in Kolhapur Canesugar Works Ltd. and another Versus Union of India a nd others, supra. It was further observed that, if a provision of a statute is u nconditionally omitted without a saving clause in favour of pending proceedings, all actions would stop and if final relief has not been granted before the omis sion, it cannot be granted afterwards. Their Lordships, however, remarked that s avings of the nature contained in section 6 or in special Acts may modify the po sition and thus the operation of repeal or deletion as to the future and past ev ents would largely depend on the savings applicable. VALIDITY OF SECTION 154 OF THE FINANCE ACT, 2003 47. The challenge to the vires of section 154 of the Finance Act, 20 03, which arose as an offshoot of a pending litigation following the denial of t he exemption from duty under the Act in respect of cigarettes in terms of the no tifications dated 8/7/1999 pursuant to the Policy 1997 was answered in the negat ive in RC Tobacco (P) Ltd. and another versus Union of India and Another, supra, by the Apex Court. The determination made therein also disposed of the appeals filed by the Union of India assailing the decision of the Division Bench of this Court directing refund of excise duty on the aforementioned commodity manufactu red by the petitioners therein. While the legislative competence of the Parliame nt to enact laws with retrospective effect was conceded on behalf of the petitio ners, absence of reason justifying retrospective withdrawal of the benefit of ex emption was highlighted. The impugned legislation was thus impeached to be unrea sonable and thus violative of Article 14 and 19 of the Constitution of India. It was pleaded that the change in policy with retrospective effect would unsettle the vested right and deprive people of the benefits already enjoyed and cause fi nancial burden, which were clearly unreasonable and arbitrary. It was argued as well that although estoppel operates only against the executive and not against a statute, violation of the promises and representations of the Government by th e legislature would indeed be a facet of unreasonableness afflicting the restrai ned law with the vice of the outrage of Article 14 and 19. That the reasonablene ss of the law whereby the benefit of exemption is withdrawn with retrospective e ffect ought to be judged in the light of the representations to that effect made by the Government was also pleaded. 48. It was responded on behalf of the Union of India that the operat ion of the notification did not attain the objective of the Policy to ensure lon g lasting benefit to the State in the form of investment in industries with cons equential benefits by way of increased employment opportunities to the local pop ulation. It was argued as well that retrospective levy of excise duty was justif ied particularly when the liability to pay the same was merely suspended by the exemption notifications. Their Lordships while observing that the competence of the Parli ament and the State Legislature to repeal, amend or supercede an exemption notif ication was unquestionable and that a law cannot be held to be unreasonable mere ly because it is retrospective in operation recorded that the obvious intention behind the grant of the package of incentives including exemption from payment o f excise duty was to stimulate further industrial growth in the area with enduri ng benefits not only to the local populace by way of employment opportunities bu t also to promote economic welfare of the State. The Court took notice of the st and of the Union of India that the exemption notification did not attain that ob jective. The Apex Court reiterated that a delegated legislation is essentially r equired to actualise the policies and guidelines outlined by the legislation in the statute and that the executive in discharging that role is expected to mirro r the said notions. Their Lordships were of the view that if the executive fails to carry out the objective of the parliament, the latter in exercise of its con trol over the delegatee can permissibly enact retrospectively to achieve what th e former ought to have secured. The exemption notifications issued under section 5-A of the Act were construed as subordinate legislations and thus subject to t he amendment effected. The constitutionality of section 154 of the Act was uphel d and consequentially the Union of India was also allowed to recover the duty du e. Their Lordships though observed that the retrospective operation of the amend ment would result in harsh consequences, the same would not per se invalidate th e demand as principles of equity are to give way to express statutory provisions . 49. The essence of the precedential formulations on promissory estop pel and legitimate expectation in generic terms, as well as in the perspective o f executive policy can be gleaned from the authorities cited at the Bar. Promis sory estoppel variously described as equitable estoppel , quasi estoppel and new estoppel is not really based on principle of estoppel but is a doctrine ev olved in equity in order to prevent injustice when a promise is made by a person knowing that it would be acted upon by the promisee so that if it is so it woul d be inequitable to allow the promisor to renege therefrom. In the context of t he Government, if it, thus makes a promise knowing or intending that it would be acted upon by the promisee and in fact by doing so the latter alters his positi on, the former would be bound by the promise and then a plea of executive necess ity simpliciter would not be a sufficient justification for the former to absolv e itself of the consequences of recession. If a change in policy is sought to b e urged by the Government as a justification for his departure from the promise, it would have to establish the reason and the basis thereof to demonstrate that overriding public interest which is a superior equity over individual equity wo uld render it inequitable to enforce the resultant liability against it. In abse nce of such supervening public interest it may as well be competent for the Gove rnment to resile for the promise on giving reasonable notice according thereby a n opportunity to the promisee to redeem his position, provided of course it is s o possible for him to restore status quo ante .The doctrine of promissory estopp el is essentially founded on the rule of equity and logically cannot be enforced to permit or condone a breach of law or to compel an act prohibited by law. 50. That there is no promissory estoppel against a statute was reite rated by the Apex Court in Sales Tax Officer & Anr. -Vs- Shree Durga Oil Mills & Anr. in (1998) 1 SCC 572, in which a notification U/s.6 of the Orissa Sales Tax Act, 1947 was issued granting exemption of tax. The same view was taken in Kas inka Trading -Vs- Union of India (Supra) where the Apex Court referring to an e xemption notification issued U/s.25 of the Customs Act, 1962. Their Lordships h eld that there was no unequivocal representation in the exemption and that the n otification could be revoked without falling foul of the principle of promissory estoppel and that it would not be necessary for the Government in the circumsta nces to establish a overriding equity in its favour. It was however held by the Apex Court in MRF Ltd.(Supra) by placing reliance of its earlier determination made in Pournami Oil Mills. v. State of Kerala 1986(Supp) SCC 728 that the doctr ine on promissory estoppel is applicable to statutory notifications as well. T his understandably would be subject to the language and purport of the relevant statutory provision. 51. In a later decision, the Apex Court in U.P. Power Corporation Lt d.(Supra) recognized that public interest and repugnancy with a statute were exc eptions to the doctrine. The Apex Court in the facts of that case however rejec ted the Corporation’s plea of overriding public interest as a justification of t he reduction of the rebate sought to be effected. 52. The Apex Court in State of Rajasthan -Vs- J.K. Udaipur Udyog Ltd . (Supra) had declared that an exemption granted under a statutory provision in a fiscal statute is a concession granted by the State Government so that the ben eficiaries thereof are not required to pay the tax or duties otherwise liable to be exacted and thus the recipient of the concession has no legal enforceable ri ght against the Government for the grant of it except to enjoy the benefits ther eof during the period of the grant. Referring amongst others to its decision in Shree Bakul Oil Industries -Vs- State of Gujrat (1987) 1 SCC 31 the appellate C ourt held that this right to enjoy was defeasible so much so that it could be ta ken away in exercise of the very power under which the exemption is granted. 53. The judicially evolved and time tested essentialities for the in vocation of the doctrine of promissory estoppel are synopsized thus: (a) a party must make an unequivocal promise or representation by word or conduc t to the other party, (b) the representation is intended to create legal relatio ns or affect the legal relationship, to arise in the future,(c) a clear foundati on has to be laid in the petition with supporting documents, (d) it has to be sh own that the party invoking the doctrine has altered its position relying on the promise, (e) it is possible for the Government to resile from its promise when public interest would be prejudiced if the Government were required to carry out the promise if enforced would result in a coreach of any law, the Court will no t apply the doctrine in abstract. 54. The Apex Court in Union of India -Vs- Hindustan Development Corp oration (Supra) succinctly crystallized the notion of legitimate expectation in the following excerpt- On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a prom ise or withdrawing "