Andhra HC (Pre-Telangana)
Someswara Cements And Chemicals Ltd. vs Union Of India on 13 September, 1991
Equivalent citations: 1992(57)ELT593(AP)
JUDGMENT Sardar Ali Khan, J.
1. The petitioners herein are Mini- Cement Plants, who have come into production on the various dates mentioned in the writ petition. The Department of Industrial Development in the Ministry of Industry set up two working groups to study and make recommendations on setting up of Mini-Cement Plants for the manufacture of cement. One working group was to go into the question of the choice of technology and the other group was for studying the fiscal incentives to be granted to such mini cement plants to attract the entrepreneurs. The reports submitted by these working groups were considered by the Government of India and a decision was taken to facilitate speedy establishment of mini cement plants. The decision so taken by the Government of India offering incentives for establishment of mini cement plants is contained in a Press-Note No. 9-98/78 Com. dated 4th January, 1979. A brief reference to the said notification reveals that the Government of India was concerned with achieving a rapid increase in production of cement by the establishment of a large number of mini cement plants. The establishment of mini cement plants was considered desirable as it would result in exploitation of smaller limestone deposits, dispersal of cement production capacity all over the country, reduction of burden on railway transportation, lower capital cost and quicker installation and higher employment etc. The capacity for a mini cement plant was limited to a plant which can produce 200 tonnes per day or 66,000 tonnes per annum. The choice of technology to be utilised in setting up the mini cement plants was left to the entrepreneurs of the mini cement plant. In clause (iv) of the said press-note it is stated that the ex-works price of cement produced by the mini cement plants would be the same as the price admissible to new large sized plants viz., Rs. 296/- per tonne. This price was assured for a period of five years from the date of going into commercial production. Clause (v) of the said press-note says that mini cement plants will be allowed a rebate in the payment of excise duty up to 50% for a period of five years. It is significant to note that in so far as the rebate in the payment of excise duty upto 50% is concerned, it is not stated that this rebate will be allowed for a period of five years from the date of going into commercial production but it is merely stated that such rebate would be allowed for a period of five years, and nothing more. The rest of the matters contained in the press-note are concerned with the question of price control under the Cement Control Order and other allied matters which need not be considered for the purpose of this writ petition. Another notification bearing No. 194/79-C.E., dated 30-5-1979 was issued by the Central Government in exercise of the powers conferred under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 to the effect that the Central Government exempts cement falling under item No. 23 of the First Schedule to the Central Excises and Salt Act, 1944 and manufactured in a mini-cement plant from so much of the duty of excise as is in excess of Rs. 32.50 per Metric Tonne. This notification is not to made applicable to certain cement companies which are registered or registerable under Section 26 of the Monopolies and Restrictive Trade Practices Act, 1969. The expression "mini-cement plant" within the meaning of this notification means a cement plant consisting of one or more kilns and having a total installed capacity not exceeding 200 tonnes per day. In the end of this notification it is stated that it shall be in force upto and inclusive of 31st day of March 1984. This Notification bearing No. 194/79-C.E., dated 30-5-1979 as amended by Notification No. 81/82-C.E., dated 28-2-1982 was issued stating that cement falling under Item No. 23 and manufactured in mini-cement plant is exempt from so much of the duty of excise as is in excess of Rs. 100/- per Metric Tonne. This Notification dated 28-2-1982 is not to apply to cement manufactured by certain companies which have been enumerated therein. In para 3 of this notification it is stated that this notification shall be in force upon and inclusive of 31st day of March, 1984. A further Notification No. 60/83-Central Excise, dated 1st March, 1983 was issued by the Central Government in exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 194/79-C.E., dated 30th May, 1979. The notification says that the Central Government exempts cement falling under Item No. 23 of the First Schedule to the Central Excises and Salt Act, 1944 and manufactured in a mini-cement plant, from so much of the duty of excise leviable thereon under the said Act at the rate specified in the said First Schedule as is in excess of the amount calculated at the rate of Rs. 170/- per Metric Tonne. As in the case of the previous notification in this notification also it is stated that this notification shall be in force upto and inclusive of the 31st day of March, 1984. Thereafter, Notification No. 61/85-C.E., dated 17th March, 1985 was issued under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 by virtue of which the Central Government directed that the notifications mentioned therein shall be amended in the manner specified in the corresponding entry in Col. No. 3 of the table given in the said notification. The table itself is reproduced hereunder to enable a ready reference in so far as it is required for the purpose of this judgment, which is as follows :
TABLE
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Sl. Notification No. and date Amendment No.
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1. 59/83 Central Excises, dated 1st In the said notification, March, 1983 for the words "Two hundred and five rupees per Metric Tonne" the words "Two hundred and twenty five rupees per Metric Tonne" shall be substituted.
2. 279/83-Central Excises, dated 1st In the said notification, December, 1983 the words, brackets and figures "sub-item (4) of shall be omitted.
3. 51/84-Central Excises, dated the In the table annexed to 1st March, 1984 the said Notification, S. No. 2 and the entries relating thereto shall be omitted.
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It may also be mentioned that a Parliamentary unstarred question No. 5223 was raised in the Lok Sabha on the 23rd day of December 1981 which was to seek clarification about the economic viability of mini-cement plants and about the suitable technology to be employed for the successful functioning of the mini-cement plants. The then Minister of Industry in his reply said that one of the main conclusions of the working group on incentives of Mini-Cement Plants was that the cost of production in the case of mini cement plants words out to about Rs. 50/- to Rs. 60/- per tonne over the price per tonne admissible to a large cement plant. It is further stated that the additional cost is neutralised by exempting mini cement plants from the operation of distribution control under the Cement Control Order, 1967 and by providing a rebate in the payment of excise duty upto 50% for a period of five years from the date of commencement of production. The relevant part of the reply given by the Minister of Industry to the Parliamentary unstarred question is re-produced above as it is being relied upon by the learned counsel for the petitioners in this matter to substantiate the point that the rebate in payment of excise duty upto 50% given to the Mini-Cement Plants should be from the date of the commencement of production of cement by the petitioners and not from the date of the notification itself.
2. Sri K. Srinivasa Murty, learned counsel appearing on behalf of the petitioners, has submitted that consequent upon the issue of press-note on 4-1-1979 concession of excise duty upto 50% was granted for the first years from the date of production of cement by the mini-cement plants. For instance, the 1st petitioner obtained a letter of intent on 10-6-1980 and placed orders for the supply of machinery for erecting the mini-cement plant. The plant was set up at Somappanagar, Asifabad taluka, Adilabad District. The 1st petitioner was granted industrial licence on 5-8-1981. Since 4-1-1979, i.e., the date of press-note the excise duty payable on cement manufactured by mini-cement plant was Rs. 32.50 as normal excise duty for cement was Rs. 65/- per tonne. This means that the rebate of 50% was given in the payment of excise duty to the mini cement plant. By Notification No. 81/82 the excise duty was revised for cement at Rs. 150/- per tonne and the Central Government issued a separate notification fixing excise duty for mini cement plant at Rs. 100/-, but it should have been half of Rs. 150/- i.e., Rs. 75/- per Metric Tonne. Subsequently by a Notification No. 60/83 dated 1-3-1983 the excise duty for cement was revised to Rs. 205/- per tonne and similarly the excise duty for cement manufactured by mini cement plants was revised at Rs. 170/-. Since 31-3-1985 even the mini-cement plant manufactures were paying excise duty at the rate of Rs. 205/- per tonne which was revised to Rs. 225/- from 1-4-1985. The submission of the learned counsel for the petitioners is that the 1st petitioner has gone into production on 17-3-1983 and it has been paying excise duty on the basis of the notifications referred to above. Similarly the others were also paying excise duty on the basis of the above referred notifications. On the above basis the principal contention of the learned counsel for the petitioners in this case is that each and every one of the petitioners is entitled to a rebate upto 50% in payment of excise duty for five years from the date they have gone into commercial production by virtue of notification issued on 4-1-1979. The notification dated 4-1-1979 was given effect to and another Notification No. 194/79-C.E., dated 30-5-1979 was issued by the Central Government exempting the cement manufactured in a mini-cement plant from so much excess of the duty of excise as is in excess of Rs. 32.50 per Metric Tonne as the full duty payable at that time was Rs. 65/- per Metric Tonne. It is further urged on behalf of the petitioners that since the petitioners believed the representations made by the Government of India in the Press-Note dated 4-1-1979 that they would be granted exemptions to the extent of 50% in the payment of excise duty for a period of five years from the date of going into commercial production, the Government of India should be deemed to have been estopped from taking away the concession before the completion of five years from the date of the mini-cement plants going into commercial production. It is also urged that it was only in the wake of these concessions that the mini-cement plants embarked upon the venture of manufacture of cement and now this concession cannot be taken away from them before the expiry of the five years period from the date of their going into commercial production as it would operate as a promissory estoppel against the Central Government in denying the exemption to the mini cement plants. It is in this connection that the petitioners rely upon the reply given to the unstarred question raised in the Lok Sabha by the then Minister of Industry in which he was stated that the rebate to the extent of 50% in payment of excise duty by mini cement plants would be given for a period of five years from the date of the units going into commercial production.
3. The contention of the petitioners that the 50% rebate in payment of excise duty should be given for a period of five years from the date of the mini-cement plants going into commercial production is totally incorrect. A reading of the relevant notifications reveals the point that the incentives for establishment of mini-cement plants have been given for a period of five years from the date of notification. The Press-Note bearing No. 9-98/78-Com. dated 4-1-1979, issued by the Government of India, Ministry of Industry, Department of Industrial Development, New Delhi merely mentions in clause (v) that the mini-cement plants will be allowed a rebate in the payment of excise duty upto 50% for a period of five years. A reading of this paragraph in the press note clearly reveals the fact that the rebate is to be allowed for a period of five years from the date of notification. In clause (iv) of the said press-note it is stated that "the ex-works price of cement produced by the mini-cement plants would be the same as the price admissible to new large sized plants, viz., Rs. 296/- per tonne. This price will be assured for a period of five years from the date of going into commercial production." It is quite true that in so far as the ex-words price of cement produced by the mini-cement plants has been fixed at Rs. 296/- per tonne for a period of five years from the date of the plants going into commercial production. In so far as the fixation of the price is concerned it is clear that it has been assured for a period of five years from the date of the mini-cement plants going into commercial production. But, the question of allowing a rebate in the payment of excise duty upto 50% is only for a period of five years and significantly it is not mentioned therein that this rebate also will be given for a period of five years from the date of the plant going into commercial production. In the absence of any such wording occurring in clause (v) of the notification dated 4-1-1979, mentioning the payment of excise duty upto 50%, it cannot be construed that the petitioners' mini-cement plants would be entitled to a rebate upto five years from the date of their going into commercial production. Any such interpretation of the press-note dated 4-1-1979 would lead to the result that any mini-cement plant going into commercial production, howsoever late it may be, would be entitled to a rebate in payment of excise duty upto 50%. This cannot be the intention of any scheme providing incentives for the establishment of mini cement plants. The period of five years will, therefore, have to be calculated only from the date when the notification has been issued. It is also significant to note that in all the subsequent notifications dated 30-5-1979, 28-2-1982 and 1-3-1983 the standard clause which has been included in the notifications as the last clause is that the notification shall be in force upto and inclusive of 31st day of March, 1984. The concessions are, therefore, meant to be in force only for a period of five years from the date of the notification as such and not from the various dates when the mini-cement plants are supposed to have gone into commercial production. The notification dated 30-5-1979, as amended by notification dated 28-2-1982 and the notification dated 1-3-1983 are all notifications which have been made in force upto and inclusive of 31st day of March, 1984 only. These notifications have been issued from time to time granting concessional rates of duty to cement produced in mini cement plants. The further contention of the petitioners that at present no concession of excise duty is given is quite correct but it will have to be seen in the light of the fact that these concessions to mini cement plants were to be in force only upto 31st day of March, 1984 and no concession is to be given beyond the said date and therefore the petitioners have no right to claim the concessions after the due date i.e., 31-3-1984, has expired.
4. The other contention raised on behalf of the doctrine of promissory estoppel operates in favour of the petitioners and the respondents should not be allowed to go back on the promises made by them in regard to the concession in payment of excise duty to the extent of 50% on the cement produced by the mini-cement plants for a period of five years from the date of the units going into commercial production. At the very outset there is an inherent contradiction in this assertion of the petitioners in the sense that the concession granted in regard to payment of excise duty is valid only upto a period of five years from the date of notification and not from the date of the units going into commercial production. As stated above, in all the notifications issued by the Central Government from time to time it is clearly mentioned that these notifications will remain in force upto and inclusive of 31st day of March 1984 and not beyond that date. Even otherwise, we fail to see how the doctrine of promissory estoppel can be pleaded in this case when it is an accepted principle of law that the promissory estoppel cannot operate against the Legislature in the exercise of its legislative functions nor can the Government or any public authority be debarred by the doctrine of promissory estoppel from enforcing a statutory prohibition.
5. The notifications dated 30-5-1979, 1-3-1985 and 17-3-1985 have been issued by the Central Government in exercise of the powers conferred on the Central Government under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944. It is, therefore, necessary to reproduce the said sub-rule (1) Rule 8 of the Central Excise Rules, 1944 hereunder, which is in the following terms :
"Rule 8. - Power to authorise exemption from duty in special cases :-
(1) The Central Government may from time to time, by notification in the Official Gazette, exempt subject to such conditions as may be specified in the notification any excisable goods from the whole or any part of duty leviable on such goods :
Provided that, unless specifically provided in any notification issued under this sub-rule, any exemption therein shall not apply to excisable goods produced or manufactured in a free trade zone and brought to any other place in India :
Provided further that, unless specifically provided in any notification issued under this sub-rule, any exemption therein shall not apply to excisable goods produced or manufactured in a hundred per cent export-oriented undertaking and allowed to be sold in India.
XX XX XX"
It is thus clear that under this sub-rule the Central Government has got the authority to issue notifications from time to time, which shall be published in the Official Gazette, granting exemption from the whole or any part of duty leviable on the goods specified therein. This power of the Central Government can be exercised by it in accordance with the decisions taken by the Central Government keeping in view the various factors which may be relevant for this purpose. The Rule further provides that such notifications shall be published in the Official Gazette. Consequent upon such publication the notification comes into effect as one which has been published in exercise of the statutory power vested in the Central Government under Rule 8 of the Central Excise Rules, 1944. Rule 8 has now been omitted vide Notification No. 19/88-C.E., dated 1-7-1988, but it was in force at the time when the various notifications, referred to above, were issued and published in the Official Gazette. In this connection it is relevant to refer to Section 38 of the Central Excises and Salt Act, 1944 (Act No. 1 of 1944) which is in the following terms :
"Section 38. - Publication of rules and notifications and laying of rules before Parliament :-
(1) All rules made and notifications issued under this Act shall be published in the Official Gazette.
(2) Every rule made under this Act and every notification issued under sub-section (1) of Section 5A and Section 11C shall be laid, as soon as may be after it is made or issued, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or successive session aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule should not be made or the notification should not be issued would be notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification."
It may be seen that sub-section (1) of Section 38 has been substituted by the Central Excises and Salt (Amendment) Act, 1973 (Act 22 of 1973) and sub-section (2) has been substituted by Customs & Central Excises Laws (Amendment) Act, 1988 (Act No. 29 of 1988) and has come into force from 1-6-1988 vide Notification No. 18/88-C.E. (N.T.), dated 29-6-1988. The original Section 38 was in the following terms :-
"38. Publication of rules and notifications :-
All rules made, and notifications issued, under this Act, shall be made and issued by publication in the Official Gazette. All such rules and Notifications shall thereupon have effect as if enacted in this Act :
Provided that every such rule shall be laid, as soon as may be, after it is made, before the Parliament, while it is in session, for a total period of thirty days, which may be comprised in one session or two or more sessions, and if before the expiry of that period, Parliament makes any modification in the rule or directs that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be."
Under the original Section 38, all rules made and notifications issued under the Act were to be made and issued by publication in the Official Gazette and thereupon they were deemed to have the effect as if enacted under the Act. Under the original Section 38 it is also provided that every rule made under this Act and every notification issued under sub-section (1) of Section 5A and Section 11C shall be laid as soon as may be after it is made or issued, before each House of Parliament while it is in session for a total period of thirty days and shall come into effect only in such modified form or be of no effect, as the case may be, as directed by the Parliament. There was no provision for placing the notification before the Parliament under the original Section 38. Only the rule was to be placed before the Parliament as such. In the amended Section 38, which is reproduced above, it can be seen that all rules made and notifications issued under this Act come into force on publication in the Official Gazette. In sub-section (2) of Section 38, as amended vide Amendment Act No. 29 of 1988 it is provided that every rule made under this Act and every notification issued under sub-section (1) of Section 5A and Section 11C shall be laid, as soon as may be after it is made or issued, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule should not be made or the notification should not be issued, the rule or notification shall thereafter have effect with such modification or in such form as is directed by the Parliament. Under sub-section (2) of Section 38, therefore, every rule made and every notification issued under sub-section (1) of Section 5A and Section 11C is to be laid before each House of Parliament and shall come into effect in such modified form as is approved by the Parliament. Sri K. Srinivasa Murty, learned counsel appearing for the petitioners, has strenuously argued that there is no evidence to show that these notifications granting rebate in the payment of excise duty to the extent of 50% or otherwise have not been laid before each House of the Parliament as required under sub-section (2) of Section 38 and, therefore, cannot be deemed to have any statutory force. It may be seen that the practice of laying rules before Parliament is of a routine nature. The main idea behind the law providing for laying the rules or notifications before each House of Parliament is to ensure a check on the delegated power to the executive to make the rules or the notifications. In other words, it is to ensure to control over delegated legislation that such provisions are made by virtue of which the Legislature retains control over its delegate by exercising its power of repeal. (Vide N.K. Papaiah & Sons v. Excise Commissioner. According to Craies on Statute Law, rules can be laid before Parliament in three ways (i) laying without further procedure, (ii) laying subject to negative resolution and (iii) laying subject to affirmative resolution. The wording employed in sub-section (2) of Section 38 clearly shows that it follows the second method of laying subject to negative resolution. It is significant to note that in sub-section (2) of Section 38 it is stated that the rules or the notifications shall be laid before each House of Parliament for a total period of 30 days which may be comprised in one session or in two or more successive sessions and if during the said period both Houses agree in making any modification in the rule or notification or both Houses agree that the rule should not be made or the notification should not be issued, the rule or notification shall thereafter have the effect or be of no effect, as the case may be. A close reading of Section 38(2) therefore shows that these rules fall within the category of being laid subject to negative resolution. If there is no negative resolution by both Houses of Parliament the rules will continue to be in operation as drafted and notified in the Official Gazette. The fact that the rules have not been laid before the Parliament or that having been laid does not affect the situation that the provisions of sub-section (2) of Section 38 continue to be directory and the use of the word "shall" for laying the notifications before the Parliament, since it is not mandatory to lay such rules, by the imputation of the word "shall" therein it cannot be said that the notifications are rendered void and inoperative by the force of law. It is a negative procedure which has been followed in sub-section (2) of Section 38 and unless there is a resolution passed by both Houses of Parliament the rules will continue to be in force. The direction given in sub-section (2) of Section 38 is purely directive in its character and does not assume the position of a legal obligation on the part of the Central Government to lay the rules before both Houses of Parliament, in mandatory fashion. Failure to place the rules before the Houses of Parliament does not affect the validity of the rules merely because they have not been placed before the Houses of Legislature. In Jan Mohd. v. State of Gujarat the Supreme Court has held that the rules framed under Section 26(5) of Bombay Agricultural Produce Markets Act (22 of 1939) does not prescribe that rules require validity only from the date on which they were placed before Houses of Legislature. The rules were held to be valid on the date on which they were made u/s 26(1) of the said Act. The Supreme Court further observed that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature but failure to place the rules before the Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of the Legislature. This judicial dictum of the Supreme Court is fully applicable to the facts of the present case also. Under Section 38(2) of the Central Excises and Salt Act, 1944, it is no doubt stated that the rules shall be laid before both the Houses of the Parliament, but it is nowhere stated that failure to place the rules before both the Houses of Parliament, would result in invalidation of the Rules as such. In Atlas Cycle Industries Ltd. v. State of Haryana the Supreme Court was considering the question of validity of Iron and Steel Control Order, 1956 by virtue of which fixation of maximum selling prices of various categories of Iron and Steel was made. The said notification was not placed before the Houses of Parliament. The Supreme Court held that the Legislature never intended that non-compliance with the requirement of laying as envisaged by sub-section (6) of Section 3 of the Essential Commodities Act should render the order void. Consequently, non-laying of the notification fixing the maximum selling prices of various categories of iron and steel before both Houses of Parliament cannot result in nullification of the notification. Therefore, even if it is taken for granted that the notifications have not been laid before both the Houses of Parliament which does not derogate that non-laying of the said notifications cannot result in the invalidation of the notification issued from time to time by the Central Government by virtue of sub-section (1) of Section 38, all rules made and notifications issued under the Act shall come into force on their publication in the official gazette. These rules and notifications take effect as soon as they are published in the official gazette and do not have to wait for their statutory force to be laid down before the Parliament.
6. The notifications, therefore, acquired statutory force from the date of their publication in the official gazette. These notifications have been issued in exercise of the power of delegated legislation vested in the authorities and once they acquire the statutory force in accordance with the terms of sub-section (1) of Section 38, they are deemed to be as much a legislative measure as any other enactment can be. This being the position, the further discussion with regard to the question of promissory estoppel is curtailed down to a very large extent in the light of the principle that there cannot be a promissory estoppel against the Legislature, in the exercise of its legislative functions. In Vasantkumar Radhakisan Vora v. Board of Trustees of the Port of Bombay the Supreme Court held that the doctrine of promissory estoppel has been evolved by equity to avoid injustice. It is neither in the realm of contract nor in the realm of estoppel. Its object is to interpose equity shorn of its form to mitigate the rigour of strict law. In the same judgment the Supreme Court has cited with approval the passage in Motilal 'P' Sugar Mills' case which is in the following terms :
"There can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the government of public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the government or public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the government, or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires, it can be shown by the government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority."
In the same Judgment, the Supreme Court has pointed out a further limitation on the operation of the doctrine of promissory estoppel by holding that a promissory estoppel cannot be used to compel the government or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make. It was also held that if the promise made by a public authority is ultra vires the authority of the public authority, it cannot be enforced against the Government or the public authority as the act itself is rendered patently illegal and void for want of jurisdiction. In Haryana Urban Development Authority v. Sunita it has been recognised that there cannot be any estoppel against a legislature. But the action of the State Government, if it infringes a right vested in an individual can be rendered inoperative by the application of the doctrine of estoppel. In this case there is no act of the State Government or the Central Government which is questioned by the petitioners. The notifications which have been issued from time to time are in exercise of the Legislative power vested in the authority and are deemed to be legislative measure against which the doctrine of estoppel cannot be pleaded. In Union of India v. Godfrey Phillips India Limited it has been held in unequivocal terms that the doctrine of promissory estoppel is applicable against the Government in the exercise of its governmental, public or executive functions and it cannot be defeated by invoking the defence of executive necessity, but no such promissory estoppel operates against the legislature in the exercise of its legislative functions nor can the Government or the public authority be debarred by promissory estoppel from enforcing a statutory prohibition.
7. In the light of the above discussion, two conclusions are to be clearly drawn - firstly, that the period of five years mentioned in the notification dated 4-1-1979 for the grant of rebate in the payment of excise duty to the extent of 50% cannot be deemed to be from the date of the Mini Cement Plant going into commercial production. As stated earlier, there is no warrant in reading the words "from the date of the Unit going into commercial production in the matter of grant of rebate of 50% of excise duty in the notification issued by the Central Government. It is also as clear as day light that in all the notifications issued by the Central Government, cut off date 31-3-1984" has been mentioned as a standard clause beyond which the concession in regard to the payment of excise duty does not exist. The petitioners, who are the Mini Cement Plants, therefore, cannot claim the benefit of any rebate in the matter of payment of excise duty beyond 31-1-1984. Secondly, the doctrine of estoppel being a doctrine of equity is enforceable within certain prescribed limits. The latest decisions of the Supreme Court referred to above, are clear on the point that the doctrine of promissory estoppel cannot be pleaded against a legislative measure. There is a unanimity of judicial opinion throughout, on this point, that an act of a Legislature is not liable to challenge on the basis of the doctrine of promissory estoppel. In fact, the operation of the doctrine of promissory estoppel is not available for the enforcement of a promise made by an authority which is ultra vires the power of the public authority making such a promise. The doctrine is said to be applicable only in the context of things which may be existing at a particular time taking into consideration the matters of State policy and the effect that the operation of such a doctrine is likely to create a public interest. The notifications which have been issued by the Central Government about the rebate of payment of excise duty to the extent indicate therein have acquired their statutory force on their publication in the official gazette. They are therefore, manifestations of the exercise of the delegated legislative powers vested in the authorities and have statutory force which cannot be challenged by the application of doctrine of promissory estoppel against the Central Government.
8. In view of the above discussion, we do not see any merit in this writ petition which is accordingly dismissed. In the circumstances, there will be no order as to costs.
9. An oral request for leave to appeal to the Supreme Court under Art. 133 of the Constitution was made by the learned Counsel for the petitioner. Since the matter does not involve any substantial question of law of general importance which needs to be decided by the Supreme Court, leave is refused.