Calcutta High Court
Black Diamond Beverages Ltd. vs Union Of India (Uoi) on 4 May, 1988
Equivalent citations: 1988(18)ECC16, 1988(18)ECR556(CALCUTTA), 1988(36)ELT225(CAL)
JUDGMENT Bhagabati Prasad Banerjee, J.
1. This writ application was moved by the petitioner for a declaration that Central Excise Notification No. 203/87, dated 9th September, 1987 issued in exercise of powers conferred by Rule 57A of the Central Excise Rules, 1944 whereby the Central Government made amendment in the notification of the Government of India and the Ministry of Finance (Department of Revenue) No. 177/86-Central Excise, dated 1st March, 1986 whereby the benefit of Modified Value Added Tax (referred to as MODVAT) system to aerated waters was withdrawn.
2. The fact of this case in short is that the petitioners are manufacturers of aerated waters viz. 'Gold Spot', 'Limca', Thums Up', 'Rim Zim' and 'Bisleri Soda' which are manufactured in the factory of the petitioners at Calcutta. It is stated that the petitioner company is manufacturing aerated waters on the basis of raw materials supplied by M/s. Parle (Exports) Private Ltd.
3. Aerated waters, as excisable commodity was brought under Excise Duty with effect from 1st of March 1970 under Item No. 1-D in the First Schedule to the Central Excises & Salt Act, 1944. While the said levy was in force, the Central Government under the provisions of Rule 8 of the Central Excise Rules, 1944 (referred to as the said Rule) issued a Notification No. 201/79-C.E., dated 4-6-1979 as amended from time to time, exempted all excisable goods on which the duty of excise is leviable and in the manufacture of which any goods falling under Item 68 of the First Schedule to the said Act, had been used as raw-materials or component parts from so much of duty of excise leviable thereon as was equivalent to the duty of excise already paid upon the said raw-materials are components upon the terms and conditions mentioned therein. On the basis of the said Notification No. 201/79-C.E., dated 4-6-1979, the petitioner company was availing the benefit of the exemption as a manufacturer of Aerated waters in regard to the bottles and crowns as well as synthetic essence known as 'Non-alcoholic Beverages' fee under Item 68 of the First Schedule to the said Act and accordingly the petitioner No. 1 availed of set-off under the said Notification No. 201/79-C.E., dated 4-6-1979 in respect of the excise duty paid upon the synthetic essence used in the manufacture of aerated waters.
4. Under the Proforma Credit system as contained Rule 56A of the said Rules, as manufacturer was permitted to receive raw-materials or components parts on which excise duty had been paid in his factory for the manufacture of excisable goods or for the more convenient distribution of the finished product, and was allowed a credit of duty already paid on such raw materials of component parts as the case may be. On the basis of the aforesaid rule, the petitioner No. 1 as a manufacturer was taking credit of duty already paid upon his raw materials and components while discharging their duty liabilities upon the finished product. However, the scheme under the Rule 56A of the said Rules, was restricted only to such raw-materials or component parts which fell under the same tariff item as the finish excisable goods. Again the proforma credit scheme was only applicable to those products which had been specifically notified under Sub-rule (1) of Rule 56A of the said Rules.
5. While the benefit of set-off procedure and/or proforma credit scheme as stated hereinbefore, was vogue, the provisions of the said Act was amended so as to delete the First Schedule thereto with effect from 28.6.1986 by the Notification dated 5.12.1986 and to make-all excisable goods subject to duty at the rate set forth in the Schedule to the Central Excise Tariff Act, 1985 (Act No. 5 of 1986). Under and in terms of Central Excise Tariff Act, 1985). Under and in terms of Central Excise Tariff Act, 1985 the goods produced by the petitioner No. 1 were being classifiable under Chapter No. 22 thereof as 'Beverages, Vinegars and spirits'.
6. With a view to rationalise the input duty relief scheme as hitherto in operation viz.'set-off procedure, 'Proforma credit procedure', another new procedure known as 'Modified Value Added Tax' (referred to as MODVAT scheme) was introduced in the said Rules immediately upon the presentation of the Budget proposals for 1986-87 by the Notification No. 176/86-C.E., dated 1.3.1986 by inserting Section AA in Chapter V incorporating Rule 56A to 56-I laying down the procedure for MODVAT - Credit of duty paid on excisable goods used as inputs. Later Rule 56J was also inserted in Section AA by Notification No. 197/86-C.E., dated 14th March, 1986. Originally the MODVAT scheme covered inputs and final products falling under 37 chapters of Schedule to Central Excise Tariff Act, 1985, vide Notification No. 177/86-C.E., dated 1.3.86 Chapter 31 was also added by Notification No. 371/86-C.E., dated 29.7.1986 bringing the number of chapters to 38. The excepted heading Nos. 36.03 and 37.05 were also substituted by heading Nos. 36.05 and 37.06 by Notification No. 13/87-C.E., dated 23.1.1987 with effect from 10.2.1987. It may be mentioned that the extended MODVAT scheme was introducted by Shri Rajiv Gandhi the Prime Minister and Finance Minister of India in the Budget Speech 1987-88 on 28th February, 1987 in the Parliament, Budget Speech published by the Government of India in this behalf was produced before this Court and the following paragraphs of the said Speech from the Prime Minister and Finance Minister of India referred to are as follows:
'The MODVAT introduced in the 1986-87 Budget was a major innovation. We covered 38 chapters of the Excise Tariff last year. I now propose to extend MODVAT to all the remaining chapters except those relating to textiles, tobacco and the petroleum sectors, MODVAT will now be extended to cover food products, mineral products, leather and travel goods, footwear paper and paper board, wood and cork products, asbestos cement products and precious metals.
Last year, in order to ensure revenue neutrality, the introduction of MODVAT was accompanied by an increase in the duty on the final product to balance the set-off being given of the duty paid on inputs This year, keeping in view the nature of products, the duty on the final product is not being increased except in a few items. This will reduce the effective duty on a large number of items.
In the case of food products, for example, the total number of items covered by MODVAT will be over 100. The duty increase for revenue neutrality is being done only in case of cheese, malt preparations and aerated soft drink. The effective rate of taxation of other food products, such as biscuits, skimmed, milk powder, butter, jams and jellies and confectionery will be significantly reduced. Farmers and horticulturists are benefited by the expansion of the market of value-added food products.
Some increase in the final duty is necessary in five of the items which were covered last year where we have found that set-off given last year was very much larger than initially estimated. There are zinc-oxide, adhesives based on synthetic resin, organic surface-active agents, electric motors and primary batteries A number of important procedural changes are also being introduced to simplify the operation of MODVAT. Some of the concessions are:-
(1) Refund in cash of input duty credit it the final product is exported by the manufacturer in certain circumstances.
(2) Availability of credit of duties in respect of inputs lying in stock.
(3) Adjustment of input duty credit if additional duty is demanded from input manufacturers in case of change in classification of inputs.
(4) Receipt of inputs directly by the job-workers will be permitted for all items under the MODVAT scheme.
With these measures, we will have successfully eliminated the cascading effect of excise duty and given a measure of excise relief."
7. After presentation of the Budget Speech for the year 1987-88 and obtaining legislative sanction for framing rule for giving credit of money with respect of raw-materials used in the manufacture of excisable goods as introduced under Section 96 of the Finance Bill, 1987, MODVAT scheme was subsequently extended vide Notification No. 83/87-C.E., dated 1.3.1987 to the goods falling in Chapters in the First Schedule of Central Excise Tariff Act including aerated waters produced and manufactured by the petitioner No. 1 on the basis of the aforesaid provisions of law, the petitioner No. 1 was availing the benefit of MODVAT scheme from 1st of March 1987. Thereafter, by Notification No. 203/87, dated 9th September, 1987 issued in exercise of the powers conferred by Rule 57A of the said Rules, the Central Government amended the notification extending the benefit of the MODVAT scheme and withdrew the benefit of MODVAT scheme in respect of goods falling under sub-headings No. 2201.11, 2201.12, 2201.19, 2202.11, 2202.12, 2202.13, 2202.14 or 2202.19. The withdrawal of the MODVAT scheme insofar as the aerated concerned has, it is stated seriously affected the petitioners' business in the following manner:
8. When the petitioner was allowed to avail the benefit of MODVAT scheme, the duty was increased from Rs. 7.20 per crate to Rs. 12/- per crate and the duty payable by the petitioner per crate came to Rs. 10.10p (Rs. 12/- less Rs. 0.65 for essence Rs. 1.20 for crown cork less Rs. 0.05 for miscellaneous and after the withdrawal of the MODVAT scheme so far as the aerated water is concerned, the duty payable came back to Rs. 12/-per crate as against Rs. 6.55 payable prior to 1.3.1987 and Rs. 10.10 after the introduction of the MODVAT scheme and during the period from 1st March, 1987 to 30th September, 1987.
9. The petitioners challenged the validity of the Notification No. 203/87, dated 30th September, 1987 on the following grounds:
(a) The said MODVAT scheme was introduced in the Parliament by the Prime Minister who was also the Finance Minister of India on 28th February, 1987 with the assurance that this was a long term fiscal policy. In this connection, the relevant portion of the said Speech of the Prime Minister and Finance Minister on which reference was also made is as follows:
"I do not propose any changes in the rate structure for personal and corporate taxes. This is the line with long term fiscal policy" and that "I now propose to extend MODVAT to all remaining chapters except those relating to textile, tobacco and petroleum sectors, MODVAT will now be extended to cover food products, mineral products...."
10. From the Speech of the Prime Minister and Finance Minister of India it was pointed out that a composite and unequivocal promise was given by the Prime Minister and Finance Minister to the Industry that increase in the rate of duty was made conditionally upon giving corresponding relief under the MODVAT scheme for eliminating the cascading effect of excise duty and giving measure of excise relief and as such it is submitted that the said Budget Speech had clearly created a promissory estoppel under which the Central Government had no jurisdiction to take away the said benefit of the MODVAT scheme so far as the aerated water is concerned without reducing the rate of excise duty and restoring the rate of duty prevailing before the said budgetary changes.
(b) That withdrawal of the MODVAT scheme insofar as the aerated water is concerned without withdrawing the said benefits from other items of the food-stuff was discriminatory and violative under Article 14 of the Constitution of India.
(c) That the purported action amounts to an unreasonable restriction on the petitioner's right to carry on trade or business guaranteed under Article 19(1)(g) of the Constitution of India.
(d) That when MODVAT scheme was extended aerated water by the Prime Minister and Finance Minister in the Parliament the same could not be withdrawn by means of a notification issued under Rule 56A of the said Rules.
(e) The notification in question was issued in violation of principle of natural justice, in as much as, the petitioners were not heard before the said scheme was withdrawn.
11. Mr. Bhaskar Masoodkar, Senior Advocate appearing on behalf of the petitioners submitted that the Prime Minister and the Finance Minister in his said Budget Speech made a composite promise to the industry in the Parliament and that on the basis of such a composite promise and assurance the petitioner company fixed the price on a long term policy and because of withdrawal of the scheme, the petitioner company is suffering and would be suffering huge loss and injury. It was submitted that the rate of duty was increased from Rs. 7/- to 12/- in the said Budget and at the same time relief was given under the scheme under which the petitioner company had to pay only Rs. 10.10p as duty and now after the withdrawal of the said scheme, the petitioner is liable to pay the duty at a higher rate i.e. at the rate of Rs. 12/-. It was suggested by Mr. Masoodkar that the Prime Minister and the Finance Minister's speech in the Parliament had created an estoppel on the part of the Central Government under which Central Government cannot be allowed to withdraw the said concession under the MODVAT scheme. It is submitted by Mr. Masoodkar that the long term fiscal policy statement made by the Prime Minister and the Finance Minister clearly represented that the MODVAT scheme was extended to food products and other products and that the programme would be implemented in a phased manner within a period of one year and that when acting on such representation, the petitioner company had fixed a price on a long term basis, the action on the part of the Respondent No. 1 in withdrawing the MODVAT benefit to aerated waters was illegal and contrary to the principle of promissory estoppel.
12. The principle of promissory estoppel is well-known. In order to establish and enforce the principle of promissory estoppel there must exist firstly, a promise to be given by a promisor and that secondly, the other party to whom such assurance and promise is given, had changed or altered the position on the assurance contained in the representation. If the two conditions are fulfilled, in that event, it can be said that promisor is bound to keep his word. In this context reference was made by the learned Counsel appearing on behalf of the petitioner to the case of Supreme Court In Delhi Cloth & General Mills Ltd. v. Union of India wherein Supreme Court observed that Supreme Court explained this principle and also held that "it is however, quite fundamental that the doctrine of the promissory estoppel cannot be used to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power. The doctrine, therefore, cannot always be invoked if it is found to be inequitable or unjust in its enforcement". Further it was observed in the said judgment that for the purpose of finding whether an estoppel arises in favour of the person acting on the representation, it is necessary to look into the whole of the representation made and that the representation must be clear and unambiguous and tentative or uncertain.
13. The next case that was relied on behalf of the petitioners in support of a question of promissory estoppel is the case of Supreme Court of India in Pournami Oil Mills v. State of Kerala wherein the Supreme Court considered the exemption granted under the Kerala Sales Tax Act, 1963. In this case, in exercise of power conferred by Section 10 of the Kerala General Sales Tax Act, 1963, the Government of Kerala granted exemption in respect of taxespayable under the Act on the turnover of the sale of goods produced and sold by the new industrial units under the small scale industries for a period of five years from the date of commencement of sale of such goods by the said units subject to certain conditions and that by the said notification, new industrial units under Small Scale Industries set up after 1.4.1979 was exempted for payment of sales tax for a period of five years from the date of the production. 1n this context, it was held by the Supreme Court of India that such exemption relating to tax cannot be withdrawn before the expiry of the five years inasmuch as, on the basis of the promise contained in the notification in question small scale concerned had been set up and that they would be entitled to plea the rule of estoppel in their favour when the State of Kerala purported to act differently.
14. Reliance was also placed to the decision of the Supreme Court in the case of Indian Express Newspaper v. Union of India and Ors. wherein the Supreme Court considered the effect of notification issued under Section 25(1) of Customs Act granting, modifying or withdrawing the exemption of duty on newspaper. It is held by the Supreme Court that when such notification was issued after taking into consideration all relevant factors which bear on the reasonableness of the levy on the newsprint, the Government cannot withdraw the said concession without taking relevant factors to the consideration. In this case, Supreme Court considered the role of the newspaper in the society and also considered the effect of putting a restriction upon a freedom of speech and expression of the newspaper. Supreme Court was of the view that if duty is levied on the newspaper by the Government, by necessity implication it has to be passed on by the purchaser of newspaper and that in order to pass on the duty to the consumer, the price of the newspaper has to be increased and that such increase naturally affect the circulation of the newspaper adversely. In this context, it was held by the Supreme Court that the Government should be considered the question of levy of import duty on such newspaper on the basis of guidelines given by the Supreme Court.
15. In this context I have to examine whether the said Budget Speech made by the Prime Minister and Finance Minister amounts to a promise to the petitioner company and others and secondly, I have to ascertain whether there was any alteration of position by the parties to their prejudice and to their detriment on the basis of such promise and/or representation made by the Prime Minister and Finance Minister of India and whether such a representation was clear and unambiguous and/or certain. In this connection, it is necessary to examine the legal effect of a Budget Speech made by the Prime Minister and Finance Minister of India in the Parliament according to the Parliamentary Practice.
16. The consideration of the financial statement for the financial year made by the Finance Minister is most important business by ways and means. When the Finance Minister has completed his estimate as probable income and expenditure for the financial year, it is introduced in the Parliament in the form of a statement familiarly known as 'the Budget'. In such speech the Minister develops the Government's views of the resources of the country, communicates calculation of the probable income and expenditure and declares whether the burdens of the people are to be increased or diminished. The economic aspect of the budget is important and taxes are imposed for their economic effects as well as for raising revenue to meet the expenditure for the year. The resolution which form the usual basis of the Finance Minister's statement are the resolutions for the continuance during the financial year of income tax and corporation tax and the imposition of any new duties or alteration of permanent duties necessary for the purpose of adjusting from revenue expenditure of the year and upon this and any other necessary resolutions, the bill is introduced which gives legislative effect to the financial proposal of the Government confined to the financial year. This is the position of the Budget Speech as is evident from Erskine May's Parliamentary Practice, 19th Edition at pages 785-86.
17. In my view, on the basis of the position highlighted in May's Parliamentary Practice referred to above and in view of the Constitutional provisions, the Budget Speech is only limited to the financial year in question and secondly, whenever statement is made before the Parliament the same is nothing but financial policy of the Central Government. This is not a representation made to the people at large that such policy's statement should be adhered for a particular period inasmuch as, in our Constitution a law made to-day, may be amended tomorrow if felt necessary by the Government and that it could not be said that once a law is made, the same could not be amended or altered or repealed in near future. If the Government has power to make law today and to repeal the law next day, in that event, an action taken on the basis of the policy statement made before the Parliament by the Prime Minister and Finance Minister can be altered, modified and/or changed altogether at any moment according to the policy of the Government. In my view, the budgetary statement made by the Finance Minister did not create any right in favour of anybody and cannot be enforced by a writ inasmuch as, this is a matter which is entirely within the domain of the Parliament and not within the domain of the courts of law and accordingly, I hold that such statement made in the Parliament could not be enforced by invoking the power of High Court under Article 226 of the Constitution of India. Further in my view, writ Court does not function as the Court for execution of the speeches made in the Parliament or in the legislature of the State by any Minister. As such, in my view, writ Court had no jurisdiction in the matter of enforcing the policy statement made by the Prime Minister in the Parliament. Further I am of the view that such a policy statement made in the Parliament by a Minister does not create any estoppel in the matter and the principle of the promissory estoppel is wholly inapplicable in such case.
18. In any event, in the instant case on its merit, in my view, there was no promise given in so many clear words by the Prime Minister and Finance Minister to the manufacturers of the aerated waters that MODVAT scheme was a part of a long term policy of the Central Government which could not be altered within a few months from its introduction and that the rate on the terms in question were increased conditionally upon grant of concession under the MODVAT scheme and secondly, I do not find that there was any alteration of position on the part of the petitioner to their prejudice on the basis of such budgetary statements. The only allegation in the writ petition is that on the basis of such scheme introduced in the Parliament through MODVAT scheme, the petitioners fixed the price on a long term basis. There cannot be any binding and enforceable assurance in the Parliament in our Constitution by any Minister to the manufacturers regarding pricing strategy or there cannot be any assurance that price of a particular commodity should remain fixed and unaltered for some years. On the basis of changing the policy of the Government in fiscal matters, prices are bound to fluctuate and that the petitioners cannot have any right, legal, constitutional or otherwise with regard to a particular fixed price. Accordingly, I hold that merely because the petitioners had increased the price of aerated waters on the basis of the policy of the Central Government, does not and cannot amount to acting to the prejudice and alter the position of the petitioners to his detriment and under such circumstances, I hold that the necessary ingredients for establishing promissory estoppel are wholly absent in this case. Accordingly, I reject the contention raised by Mr. Masoodkar that the said Budgetary statement made by the Prime Minister and Finance Minister of India as aforesaid amounted to a promise to the petitioner No. 1 and that the doctrine of promissory estoppel could not be invoked in this case.
19. Mr. Roy Chowdhury learned Counsel appearing on behalf of the Respondents placed strong reliance on full bench judgment of the Delhi High Court in the case of Bombay Conductors & Electricals Ltd. v. Government of India and Ors. wherein it was held by the full bench of Delhi High Court that the principle of promissory estoppel was wholly inapplicable to the exemption notification. It was held that an estoppel could not be invoked where the result will be to compel the Government who was under the law validly authorise to withdraw in the public interest at anytime. In public interest exemption can be granted and can also be rescinded. In other words, rights of individuals are subordinated in paramount interest of the public good. Section 25 of the Customs Act underlines the importance of the common good. Public interest dominates the economic scene. If in public interest the Central Government finds that it is necessary to protect its own industry by putting up a tariff wall, it will be futile to say that it cannot do so because it is bound by its promise to continue the exemption upto a particular line. The legislature is in effect saying to the importer "we give you exemption in the public interest but if the public interest demands otherwise we will withdraw the exemption". This is implied in the promise.
20. In my view, in the instant case, even assuming that the principle of promissory estoppel is applicable in case of any matter like this, necessary ingredients for pleading promissory estoppel are wholly absent. In the instant case, there was no and could not be any promise given by the Prime Minister and Finance Minister in the Parliament to the industry that the MODVAT scheme is introduced or extended in aerated water that the rate of duty was increased by giving corresponding benefit for the MODVAT scheme and that this would continue for a certain period. Secondly, the most important ingredient of promissory estoppel is that on the basis of the promise persons who seek to enforce promissory estoppel must establish that the party had acted to his prejudice on the basis of such representation. In the instant case, as a matter of fact, there was no question of altering the petitioner's position acting to his detriment on the basis of such promise. It is not unknown or unususal that on the basis of the budgetary changes prices of particular commodities may increase and/or decrease according to policy of the Government.
21. On fact I hold that the principle of promissory estoppel could not be attracted and secondly, I hold that in a matter of granting exemption and/or withdrawing the exemption, a question of promissory estoppel could not be invoked and I fully agree with the view expressed by the full bench of Delhi High Court in the case of Bombay Conductors & Electricals Ltd.
22. It is now firmly established principle that there cannot be any estoppel against the legislative power of the Centre and the State and further the Rule Making Authorities and the Authorities who are empowered to issue and/or withdraw the notification in exercise of the powers are also not bound by the principle of estoppel at all. "A public authority cannot effectively disable itself by contractual or other undertakings from making or enforcing a by law, refusing or revoking a grant of permission or exercise any other statutory power of primary importance such as a power of compulsory purchase nor can it effectively by itself to exercise such a power in any particular way. Similarly, it cannot be estopped by its inertia, or acquiescence from fulfilling a duty to exercise a power when the occasion arises for it to be exercised." (See De Smith's Judicial Review of Administrative Action, 4th Edition, page 318).
23. The principle of estoppel cannot apply in this field inasmuch as, when rules are framed and/or notifications are issued under the Act or rules granting exemption and/or withdrawing exemption, there cannot be any enforceable promise. This is purely a policy matter of the Government or the law enforcing authority. In this case, there was no assurance given to the petitioners and others by issuing notification by which the MODVAT scheme was introduced or extended to aerated waters and as such it cannot be said that the authority concerned had acted illegally in withdrawing the same.
24. The next submission made on behalf of the petitioners was that by the impugned notification as resulted in discrimination, it is alleged that from the category of food-stuff, aerated water was singled out arbitrarily resulting in discrimination. The submission in this behalf is that all other commodities under the heading food-stuff were similarly situated and that by withdrawing the concession on aerated waters, the Respondents have discriminated the product of the petitioner which had resulted discrimination in violation of the provisions of Article 14 of the Constitution of India. In order to throw a challenge on the ground of discrimination and violation of the provision of Article 14 of the Constitution of India, it has to be established that there was no rational basis for making classification between the goods allowed to be remained under concession and taken out of concession. In this case, it is stated that by the impugned Notification No. 203/87, only aerated waters have been removed from the ambit of MODVAT scheme and this clearly indicates that the aerated waters have been singled out by the Respondent No. 1 by the hostile treatment without their being any rational basis for such discrimination. It is stated that the petitioner No. 1 as manufacturer of aerated waters has been denied equal treatment under the law in violation of provision of Article 14 of the Constitution of India. Article 14 prohibits class legislation and not reasonable classification for the purpose of legislation. In order to throw an effective challenge in this regard, the petitioners had to make out a case that the classification between the aerated waters and other items of food-stuff was not reasonable. Taxing law is no exception to the doctrine of equal protection but if there is no reasonable basis for classification, the law may be struck down but in the instant case, the petitioners have not disclosed any basis for the contention that the classification was arbitrary. It is firmly established principle that onus of proof that a particular act or action is violative of the provision of Article 14, is upon the persons concerned who challenge the same. But unfortunately the petitioners have not been able to discharge the onus of proof that there was unreasonable classification. There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional protections. It is also firmly established principle that it must be presumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate ground. The legislature is to free to recognise the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest. In order to sustain presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common (sic)repr the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. While good faith and knowledge of the existing condition on the part of the legislature are to be presumed, if there is nothing on the face of the law of the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or things to hostile or discriminating legislation. In the instant case, a concession was granted but subsequently the same was withdrawn. It cannot be said that the commodities which were kept under the MODVAT scheme and the commodities which were taken out under the MODVAT scheme, are same or similar and/or similarly placed. In this connection, reliance was placed by Mr. Masoodkar to the decision of Supreme Court of India in the case of Kunhikoman v. State of Kerala . In that case, the provision relating to plantation under the Kerala Agrarian Relation Act 1961 was challenged as violative of provision of Article 14 on the ground that the said provision did not apply to pipper and areca plantation while tea, coffee and rubber plantation were brought under the purview of the said Act. Supreme Court observed that there s no appreciable difference between the economic of tea, coffee and rubber plantation and areca and pipper plantation and that from the facts it was found that there was no reason for making any distinction between tea, coffee and rubber on the one hand and areca and pipper on the other hand and as such the said provision was struck down as offending the provision of Article 14 of the Constitution of India. This case has no application to the facts of this case.
25. Reliance was also placed to the decision of the Supreme Court in the case of State of Rajasthan and Anr. v. Ghasiram Mangilal and Ors., reported in AIR 1969 (II) SC 710. In this case, Supreme Court held that the word 'Bardana' does not mean gunny bags alone but it can also mean boxes, wooden packing, etc. in which merchandise has been packed for the purpose of despatch from one station to another. In this way, levy of tax on gunny bags and not on other containers did indicate a discrimination for which no reasonable basis for such classification had been suggested and it was held that on that basis, the exception to the exemption in the notification has already been discriminatory and struck down.
26. The next case relied on was a decision of the Supreme Court in the case of Raja Jagannath Baksh Singh v. State of Uttar Pradesh, reported in AIR 1962 (XX) SC 1552. In this case, it was held that taxing statute can be held to contravene Article 14 if it purports to impose on the same class of property similarly situated an incidence of taxation which leads to obvious inequality. It was further held that it is not for the court to consider whether some other objects should have been taxed or whether a different rate should have been prescribed for the tax.
27. In this particular case no attempt was made to show that the commodities which are kept under the concession and taken out under the perview of the concession were similarly placed and that there could not be any appreciable difference between the commodities in question. In any event, classification is made between some of the items of food-stuff and aerated waters, it cannot be said that there cannot be any reason for making such classification. In respect of the ground of challenge regarding the validity of the notification on the ground of imposing unreasonable restriction on the petitioners fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India, it was alleged that the withdrawal of the concession under MODVAT scheme has imposed an unreasonable restriction on the petitioners' right to carry on trade or business. In the instant case, certain concession was granted in the matter of payment of excise duty under the scheme which had been withdrawn. The petitioners' grievance is that because of withdrawal of concession, the petitioner is suffering loss. The mere excessiveness of tax or duty or reduction of profits does not render it an unreasonable restriction on the trade or business. The only ground on which it challenged in that it seeks to confiscate the property. In the instant case, mere reduction in profits or suffering loss in market because of the competition, cannot be a ground of challenging the validity of the action, on the ground that the same is unreasonable. In the instant case, I do not find any materials on record to show or to suggest that the withdrawal of concession had in any way resulted unreasonableness in the matter of carrying on trade or business. The challenge made by the petitioners that the duty imposed by the taxing law in confiscatory cannot be entertained in this case. Accordingly, I find that there is nothing on record to show that the class of property was similarly situated and I do not find any ground that the withdrawal of concession has resulted in any obvious in equality or resulted in unreasonable restriction on the petitioner's right to carry on trade or business guaranteed under Article 19(1)(g) of the Constitution of India.
28. It was further contended that once a concession is granted, cannot be withdrawn or taken away without giving any opportunity of being heard to the petitioner. The principle of natural justice could only be invoked where the decision of any administrative authority or a judicial authority affects any individual, I am unable to uphold the contention of the petitioner that the principle of natural justice is violated by the respondents by withdrawing the concession without giving the petitioners any opportunity of being heard. Giving an opportunity before passing an Act or framing a rule and/or issuing a notification in exercise of statutory power is unknown and it is not the requirement to give any notice before any such statutory notifications are issued to withdraw the concession. Here no individual action is taken against anybody adversely effecting the interest of any party. The principle of natural justice would come into play where anything is decided by any authority before whom there was a lis. It is not a case where the principle of natural justice could be invoked by any logic. I also do not find that there had been any composite promise given by the Prime Minister and Finance Minister of India in the Parliament to anybody. It was a mere policy statement made by the Prime Minister in his Budget Speech and already heed that the Budget Speech cannot be said to be a promise to anybody which could be enforced by the Court of law and as such I do not find any illegality in the' matter of withdrawing exemption by the authorities concerned prescribed under the Act. There cannot be any legal right to enjoy a concession for any particular period as law can be passed and can be repealed at any time, according to the policy of the Government. Similarly, notifications issued can be revoked and/or modified at any time. It is preposterous to contend that the MODVAT scheme was extended to aerated waters by the Prime Minister and Finance Minister of India in the Parliament under a composite promise. Accordingly, I do not find any merit to the contention that there was a composite promise and as such while withdrawing the alleged promise, whole thing had to be recalled. In the result, I do not find any illegality in the matter of withdrawing the concession under the MODVAT scheme by the impugned Notification No. 203/87 dated 9th September, 1987. All contentions raised in the petition fail. The petition is dismissed. All interim orders were vacated. There will be no order as to costs. Certified copy, if applied for, be given expeditiously.