Page 74 - GSTL_16 April 2020_Vol 35_Part 3

288 GST LAW TIMES [ Vol. 35
extraneous consideration and was not “in public interest”, it was not possible to
find fault with that notification for the reasons recorded therein. The Court held
that the appellants, who were in business, have to be prepared for tides in the
business. The Court observed that in Pournami Oil Mills, 1986 Supp. SCC 728 =
1987 (27) E.L.T. 594 (S.C.), it was the incentive to set up new industry in the State
with a view to boost the industrialisation that exemption had been granted and it
was in that fact situation that the doctrine of promissory estoppel was held avail-
able to the appellant therein. Again in Shri Bakul Oil Industries, (1987) 1 SCC 31 =
1987 (27) E.L.T. 572 (S.C.), it was the incentive to set up industries in a conform-
ing area that the exemption had been granted and the Court held that the Gov-
ernment could withdraw an exemption granted by it earlier only if such with-
drawal could be made without offending the rule of promissory estoppel and
without depriving an industry entitled to claim exemption for the entire speci-
fied period for which exemption had been promised to it at the time of giving
incentive. The Court held that both these cases, therefore, cannot advance the
case of the appellants and are distinguishable on facts because the exemption
notification under Section 25 of the Act which was issued in that case did not
hold out any incentive for setting up of any industry to use PVC resins and on
the other hand, had been issued in exercise of the statutory powers, in public in-
terest and subsequently withdrawn in exercise of the same powers again in pub-
lic interest. The Court was of the opinion that no justifiable prejudice was caused
to the appellant in the absence of any unequivocal promise by the Government
not to act and review its policy even if the necessity warranted and the “public
interest” so demanded. The Court held that in the facts and circumstances of
those cases, the appellants could not invoke the doctrine of promissory estoppel
to question the withdrawal notification issued under Section 25 of the said Act.
40. In the facts of the present case, as discussed hereinabove, exemption
Notification No. 16/2015-Cus., dated 1st April, 2015 was issued in exercise of
powers under Section 25 of the Customs Act, for the purpose of implementing
the incentive scheme for import of capital goods under the EPCG Scheme. The
above decision, therefore, does not further the case of the respondents.
41. In Director General of Foreign Trade v. Kanak Exports (supra), on
which reliance has been placed by the Learned Senior Standing Counsel for the
respondent, the Supreme Court followed its earlier decision in the case of Kasinka
Trading v. Union of India (supra), which as discussed hereinabove does not sup-
port the case of the respondents.
42. In the light of the above discussion, the petition succeeds and is, ac-
cordingly, allowed. It is held that the amendment of Notification No. 16/2015-
Cus., vide Serial No. 1 of Notification No. 79/2017, dated 13th October, 2017,
would also apply to imports made during the period 1-7-2017 to 13-10-2017.
Trade Notice No. 11/2018, dated 30-6-2017 to the extent it is stated therein that
under Chapter 5 importers would need to pay IGST is hereby quashed and set
aside. The impugned order-in-original dated 29-9-2018 is hereby quashed and set
aside and it is held that the petitioner is entitled to refund of the amount of Rs.
2,38,83,203/- paid by it towards IGST with interest at the statutory rate. Rule is
made absolute accordingly, with no order as to costs.

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