Allowed

Ballarpur Industries Ltd. v. Union of India and Ors.

Punjab & Haryana HC7 Jan 2011CWP/13142/1989

Case brief

AI extract

What is this about?

Single-bench judgment allowed a writ petition challenging a notification that rescinded an earlier concession on excise duty credits for non-traditional oils. The court directed the respondents to permit utilization of earned credits and refund excess duties.

What did the court decide?

Directing respondents to permit petitioners to utilize existing excise duty credit and refund any excess duty.

Ballarpur Industries Ltd. Vs… — Constitutional and Fundamental Rights | Punjab & Haryana HC (2011)

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Civil Writ Petition No. 13142 of 1989 -1-

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Civil Writ Petition No. 13142 of 1989 Date of decision: 7-1-2011

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Ballarpur Industries Limited and another

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--- Petitioners

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Versus

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Union of India and others

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--- Respondents

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CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE AJAY KUMAR MITTAL

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Present: Ms. Radhika Suri, Advocate for the petitioners.

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Mr. H.P.S. Ghuman, Standing Counsel for the respondents.

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AJAY KUMAR MITTAL, J.

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The challenge in this petition filed under Article 226 of the Constitution of India is to the notification dated 25.8.1989 (Annexure P-8) issued by the Government of India, Ministry of India, Department of Revenue whereby the Central Government, in exercise of its powers conferred by Rule 57K of the Central Excise Rules, 1944, rescinded its earlier notifications dated 1.3.1987 and 12.8.1987. Further challenge in the petition is to the letter dated 4.10.1989 (Annexure P-9) whereby, the petitioner-company was informed of what

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Civil Writ Petition No. 13142 of 1989 -2-

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had been promulgated by notification, Annexure P-8, and had directed to take action accordingly.

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The writ petition was admitted on 18.10.1989 and ordered to be listed for hearing after the decision of Civil Writ Petition No. 11654 of 1989. Ad interim order in the same terms was also passed.

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The above writ petition was allowed by a Division Bench

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on 22.1.1990.

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We would like to extract here the observations of the Division Bench while allowing the writ petition, noticed in the operative para Nos. 41 to 44 of the order, which read thus:

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“41. Summing up the facts as emerged in the course of arguments, pleading of the parties and various Notifications read in Court, we are of the opinion that the Notification granting the concession from payment of excise duty by taking a credit on the use of the input of non-traditional oils, the petitioner did act bona fide and on the belief that they would be entitled to the concession enumerated in the Notification and further they will have a right to utilize the credit earned in terms of the said Notification. The petitioners did act and earned credit, keeping in view the Parliamentary speeches and the subsequent amendment of rules and the conduct of the respondents, the petitioner further bona fidely believed in it by taking the entire conduct of Government from its entire perspective as a normal ordinary prudent person would have believed and on such a belief acted. In our view, the

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Civil Writ Petition No. 13142 of 1989 -3-

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respondents lucidly rescinded the Notification without proper application of mind and then again reissued it. There is nothing on the record to show that at any point of time the circumstances had changed and it was either necessary or otherwise in the public interest to rescind the Notification granting the concession even if such circumstances were there for rescinding the Notification granting the concession nothing worth the name was pointed out in the course of arguments or in the pleadings or from the record as to what necessitated to efface the rights of the petitioners earned in the form of credit for utilization of the input i.e. non-traditional oils in manufacture of the finished goods. In the absence of such material depriving the petitioners from utilizing the credit earned in terms of the scheme would amount to perpetuate a fraud on a citizen. The issuance of the subsequent Notification granting the concession again unravels that there was no public interest involved in rescinding the promise of concession, nor was there any material on record to objectively satisfy the authorities to efface the credit already earned, which is an undisputable property as understood by an ordinary prudent person. It would be unconscionable and unjust not to allow the petitioners to utilize the credit already earned towards the payment of the excise duty in terms of the Scheme as prevalent above speak for themselves. The equity in

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Civil Writ Petition No. 13142 of 1989 -4-

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favour of the petitioners is fully established.

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We do not think it necessary to go in this case whether the powers exercised were legislative, executive or otherwise, nor do we need determine in this case whether the principle of promissory estoppel shall or shall not apply to the executive actions wherein it tends to fetter the executive decision in public interest.

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In view of the observations made above, the respondents are directed to permit the petitioners to utilize the credit already earned by them in terms of the Notification, dated March 1, 1987. If any excise duty has been recovered in excess, than the one payable by the petitioners in terms of the Notification, dated March 1, 1987 the same shall be refunded to the petitioners. It is made clear that the petitioners shall not be entitled to any concession or exemption nor they will be able to take any credit for the utilization of non-traditional oils during the period from August 25, 1989 to October 11, 1989.

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In view of the above observations, the writ petition is allowed, with no order as to costs.”

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During the course of hearing, learned counsel for the petitioner submitted that in both the petitions, i.e. the one in hand and Civil Writ Petition No. 11654 of 1989, the challenge is to the vires of the same notification and consequent action of the respondents and this petition also deserves to be allowed in the same terms. Learned

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Civil Writ Petition No. 13142 of 1989 -5-

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counsel for the respondents could not dispute the submission made

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by the learned counsel for the petitioners.

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In view of the above, the writ petition is allowed in the same terms as in the aforesaid writ petition.

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(AJAY KUMAR MITTAL) JUDGE

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January 7, 2011 rkmalik

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(ADARSH KUMAR GOEL) JUDGE

Ballarpur Industries Ltd. v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

Ballarpur Industries Ltd. v. Union of India and Ors.

Case brief

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What did the court decide?

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