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1996 DIGILAW 425 (MP)

Indore Bottling Co. v. Union Of India

1996-04-19

A.K.MATHUR, S.K.KULSHRESTHA

body1996
ORDER 1. The petitioners have prayed that the impugned Notification No. 203/87 dated 9-9-1987 (Annexure F) may be declared as unconstitutional, illegal and the same may be quashed whereby the import facility given to the Aerated Water industries has been withdrawn. 2. The brief facts giving rise to this petition are thus : The 1st petitioner is proprietory concern, owned and managed by a Company registered under the provisions of the Companies Act, 1956 and is engaged in the manufacture of aerated waters. The 2nd petitioner is a shareholder and Director of the petitioner-company. The petitioners have a factory at Indore where they manufacture aerated waters or soft drinks under the trade names of "Thumps Up', 'Bisleri', 'Club Soda', 'Gold spot', 'Limca and Rimzim'. In the manufacture of these Aerated Waters, the petitioner-company use the following raw materials :- (i) Sugar, (ii) Carbon dioxide, (iii) Citric Acid, (iv) Non alcoholic Beverage Base (NABB). After the Aerated Waters are manufactured, they are bottled in glass bottles and capped with metal crowns. All these raw materials are purchased by the petitioner-company from the open market. Aerated waters fell under Item No. 1-D of the then First Schedule of Central Excise and Salt Act, 1944, which subjected to excise duty at the rate prescribed under that entry. In addition to the excise duty paid by the petitioner-company on the manufacture of aerated water, the petitioner-company also bore the burden of paying excise duty on the aforesaid raw materials, bottles and crowns purchased by them from the open market. 3. By Notification No. 201/79 dated 4th June, 1979 (Annexure A) as amended from time to time, the Central Government exempted all excisable goods on which the duty of excise is leviable and in the manufacture of which any goods falling under Item No. 68 of the then First Schedule to the said Act had been used as raw materials or component parts from so much of the duty of excise leviable thereon as was equivalent to the duty of excise already paid upon the said raw materials and components, upon the terms and conditions mentioned therein. Out of the aforesaid raw materials, bottles and crowns, only synthetic (NABB) fell under Item No. 68 of the First Schedule to the said Act and accordingly, the petitioner-company claimed set-off under the said Notification No. 201 /79 in respect of the duty of excise paid upon the synthetic essence used in the manufacture of their aerated waters. It is alleged that there being a levy under the said Act on all goods, there is a cascading effect of excise duties upon the raw materials and components (known as 'inputs') in respect of the value of the final product. The value of the final product must necessarily be enhanced by excise duties paid upon the inputs. Under the Central Excises and Salt Act, 1944 and Rules certain benefits were sought to be given by way of set-off procedure and the Proforma Credit Scheme. This was changed but a new method was adopted and called Value Added Tax System popularly known as VAT System and another modified system which is popularly known as Modified Valued Added Tax System, in short Modvat System. This benefit was given to the petitioner-company by Notification No. 177/86, dated 1-3-1986. This was given in exercise of powers conferred under Rule 57A of the said Rules and this was revoked by Notification No. 203/87, dated 9-9-1987 (Annexure F). It is this Notification which is sought to be challenged by the petitioner-company by filing this petition on various grounds, viz. on the principal of Promissory Estoppel and the said Notification is violative of Article 14 of the Constitution of India. In this connection, a reference was made to the Long Term Fiscal Policy Statement that it was a statement given on a floor of Parliament to the extent to cover food products, mineral products, etc. Therefore, the promissory estoppel is applicable. It is contended that the goods distributed in some areas has been leviable and in some areas, has been revoked. Therefore, it is violative of Article 14 of the Constitution of India. 4. No reply has been filed by the respondents. Learned Counsel for the respondents submitted that the question of promissory estoppel is not applicable in this case and nor there is any ground for discrimination. Therefore, it is violative of Article 14 of the Constitution of India. 4. No reply has been filed by the respondents. Learned Counsel for the respondents submitted that the question of promissory estoppel is not applicable in this case and nor there is any ground for discrimination. In that connection, the learned Counsel has invited our attention to the decision of Bombay High Court in which Modvat facility was challenged in a Writ Petition No. 246/87 (Goa Bottling Co. Pvt. Ltd. v. U.O.I. and Ors. and the learned single Judge of the Bombay High Court after examining the effect of grant of facility of tax and then revoking the same, has held that no principle of promissory estoppel is involved in that case. It has also been held that there was no question of violation of Article 14 of the Constitution of India as no justification has been granted. Similar view has been taken by the Calcutta High Court in Black Diamond Beverages Ltd. v. U.O.I. and Ors., 1988 (36) E.L.T. 225 and by Delhi High Court in Delhi Bottling Co. Ltd. v. U.O.I. and Ors., decided on 30-10-1987 in CWP No. 3032/87, who has dismissed the petition by a small order that it is a policy matter of the Government and can not be interferred. We have gone through all the aforesaid decisions and find that the principle of promissory estoppel in all the writ petitions is not applicable because this was one of the concession which was given under the Act. The concession has been revoked. Therefore, no principle of promissory estoppel is involved. The concession can be revoked by the person who has given it as nothing in lieu thereof has sought from other side. Therefore, a policy which has been laid down by the Government on the floor of the Parliament of giving concessions has not sought in return anything or to deter from doing anything; therefore, basic principle of promissory estoppel is not applicable in the present case and the withdrawal of Modvat facility can not operate as promissory estoppel against the Government. As the concession given to all class of aerated waters that has been withdrawn therefore, no question of violation of Article 14 of the Constitution of India is involved in the present case. As the concession given to all class of aerated waters that has been withdrawn therefore, no question of violation of Article 14 of the Constitution of India is involved in the present case. In this view of the matter, we are of the opinion that the withdrawal of facility, does not involved any breach of promissory estoppel nor violation of Article 14 of the Constitution. Hence, we do not find any merit in this petition and the same is dismissed. The amount of security, if any, shall be refunded to the petitioners. No order as to costs.