Judgment :- K.S. Radhakrishnan, J. Original petition was preferred by the appellant herein seeking a writ of certiorari to quash Ext.P9 notice and P13 letter and also for a writ of mandamus directing the respondents not to initiate any proceedings against the petitioner contrary to or inconsistent with Exts.P4 and P5 and also for other consequential reliefs. 2. Ext.P9 is a notice dated 19.12.2001 issued under Section 45A of the Kerala General Salestax Act, 1963, in short KGST Act, proposing a total penalty of Rs.49,39,45,410/- stating that the assessee had faild to pay tax on the purchase turnover for the years 1997-98, 1998-99, 1999-00, 2000-01, 2001-02 on the ground that they were exempted turnover. SRO No 1729/93, it was pointed out had allowed exemption only on the purchase value of rubber used and no exemption was allowed on the turnover of any process of one form of goods into another form of the same goods by mixing with chemicals or gas fumigation or other processes as the mere conversion would not come under the term “manufacture” after 15.1.1998 since SRO 1729/93 was amended under SRO 39/98 dated 15.1.1998. Petitioner was informed that the company had failed to pay tax on the purchase turnover of rubber from 15.1.1997 to 31.3.1998, 1998-99, 1999-2000, 2001-2002 and upto 11/2001. Petitioner was informed that non payment of tax is in clear violation of KGST Act and Rules and the Company has committed an offence punishable under clause (g) of sub-section (1) of Section 45A of the KGST Act and a penalty of Rs.49,39,45,410/- was proposed to be imposed. Ext.P12 objection was filed by the Company questioning the validity of the notice as well as the jurisdiction of the officer. 3. The first respondent rejected Ext.P12, vide by Ext.P13 order dated 17.1.2002 and directed the petitioner to file objection, if any, on or before 31.1.2002, failing which it was pointed out the proposal would be given effect to. Petitioner then filed the present writ petition questioning the very basis on which Ext.P9 was issued. Senior Counsel wanted this court not only to examine the validity of Ext.P9 but also the larger question as to whether the company is entitled to get the benefit of SRO 1729/93. Counsel referred to Ext.P4 eligibility certificate issued by the Director of Industries and Commerce on 10.11.1997. Senior Counsel wanted this court not only to examine the validity of Ext.P9 but also the larger question as to whether the company is entitled to get the benefit of SRO 1729/93. Counsel referred to Ext.P4 eligibility certificate issued by the Director of Industries and Commerce on 10.11.1997. Ext.P5 is a copy of the order dated 30.6.1998 passed by the Board of Revenue (Taxes) granting sales tax exemption in respect of compound rubber. Relying on Exts.P4 and P5, counsel submitted, Exts.P9 and P13 have no legs to stand and are liable to be quashed. The question that is germane for consideration in this case is whether the petitioner is entitled to get the benefit of Ext.P5 order of the Board of Revenue purported to have been issued on the basis of S.R.O. No.1729/93 and also whether Ext.P5 is in conformity with those notifications. 4. Petitioners is engaged in the manufacture of automotive tyres, tubes, compound rubber, tread rubber, flaps, procured tread rubber etc. at its industrial unit at Vadavathoor. In order to promote rubber based industries in the State of Kerala, Government have granted exemptions. Concessions and reductions under the KGST Act and Central Salestax Act. Petitioner submitted acting on the incentives, concessions and benefits held out by the Government. Petitioner had approached the Government of Kerala with its proposal to make substantial expansion and diversification of its industrial unit. Ext.P1 is the Memorandum of Understanding executed between the petitioner and the Government of Kerala on 6.10.1993 and it is stated therein that the immediate plan of MRF Limited was to expand the process of manufacture of compound rubber and diversify into new products like tyres, procured tread rubber, flap etc. Government of Kerala in exercise of the powers conferred by Section 10 of the KGST Act issued SRO 1729/93 dated 3.11.1993 in public interest granting tax exemption to industrial units and/or reduction on the sale or purchase of goods by such industrial units subject to certain conditions and restrictions. SRO was published in the Kerala Gazette (Extra Ordinary) dated 4.11.1993. Clause 5 of the notification, relevant for the purpose of this case, if extracted below. 5. SRO was published in the Kerala Gazette (Extra Ordinary) dated 4.11.1993. Clause 5 of the notification, relevant for the purpose of this case, if extracted below. 5. In the case of Existing Medium and Large Scale Industrial Units which undertake diversification, expansion or modernization on or after the 1st April 1993, there shall be an exemption for a period of seven years from the date on which such diversification, expansion or modernization has been completed. (a) in respect of the tax payable under the Kerala General Sales Tax Act, 1963, (i) On the turnover of sale of goods, manufactured in excess of full rated capacity of the unit prevailing immediately prior to such diversification, exemption or modernization, and sold by them within the State; and (ii) On the turnover of goods taxable at the point of last purchase in the State which are used by such units for manufacturing the goods referred to in sub clause (i) above, for sale within the State or interstate; and (iii) in respect of the Surcharge payable under section 3 of the Kerala Surcharge on Taxes Act, 1957 (Act 11 of 1957) in relation to the goods referred to in sub-clause (a) above. Clause 10 of the notification deals with conditions and restrictions which stipulates that Eligibility Certificate for Medium and Large Scale Industries assisted by the Kerala State Industrial Development Corporation or the Kerala Financial Corporation would be issued by the Corporation which render assistance and in other cases by the Director of Industries and Commerce, on application by such units and orders of exemption would be issued by the Secretary, Board of Revenue (Taxes), Thiruvanathapuram. The eligibility certificate shall contain the date of commencement of commercial production and the monetary limit of exemption the unit is eligible for and other relevant matters. Clause 11 (ix) defines the expression “manufacture”, which reads as follows: “Manufacture” shall mean the use of raw materials and production of goods commercially different from the raw materials used but shall not include mere packing of goods, polishing, cleaning, grading, drying, blending or mixing different varieties of the same goods, sawing, garbling, processing one form of goods into another form of the same goods by mixing with chemicals or gas, fumigation or any other process applied for preserving the goods in good condition or for easy transportation. The process of producing desiccated coconut out of coconut shall be deemed to be “manufacture” for the purpose of this notification. The following “processes” shall not be deemed to be “manufacture” for the purpose of this notification: (a) Crushing copra and producing coconut oil and coconut oil cake. (b) Converting timber logs into timber sixes. (c) Crushing rubble into small metal pieces. (d) Converting sodium silicate into liquid silicate. (e) Tyre-retreading. (f) Cutting granite or marble slabs into smaller pieces and/or polishing them. (g) Such other processes as may be notified by Government in this behalf. Notification was to come into effect from 1.1.1994. Government of Kerala later issued another notification, SRO No.271/96 dated 13.03.1996 in exercise of the powers conferred by Section 10 of the KGST Act amending SRO 1729/93 and exempting tax payable on the products of raw rubber by medium and large scale industrial units manufacturing tyres within the State and also existing industrial units manufacturing tyres within the State which undertake diversification/expansion/modernization limiting the exemption to 100% of fixed capital investment or for a period of seven years whichever is earlier for use in the manufacture of rubber based goods within the State whether or not the product suffers tax under the KGST Act or the Central Salestax Act, 1956. Later a Memorandum of Understanding dated 10.4.1996 was executed by the Government of Kerala and the petitioner as an addendum to the earlier Memorandum of Understanding entered into between the parties on 6.10.1993. 5. Government of Kerala later amended SRO 1729/93 as per SRO No.38/98 dated 15.1.1998 in exercise of the powers conferred by Section 10 of the KGST Act by which clause (h) was added to clause 11 (ix) of SRO 1729/93. The notification stipulates that processing one form of goods into another form of the same goods by mixing with chemicals or gas fumigation or any other process shall not be included in the term “manufacture”. Amendment was intended to clarify that the above mentioned process also would fall within the exclusion clause of clause (ix) of paragraph 11 of SRO 1729/93 and it was to come into effect from 1.1.1994. 6. Amendment was intended to clarify that the above mentioned process also would fall within the exclusion clause of clause (ix) of paragraph 11 of SRO 1729/93 and it was to come into effect from 1.1.1994. 6. The Government of Kerala had earlier issued a notification SRO No. 641/81 giving reduction of tax payable on the purchase of rubber by manufacturers of finished rubber products within the State for use of such rubber by such manufacturers in the manufacture of finished rubber products which was later amended by notification dated 15.6.1990 Question arose as to whether Government has the power under Section 10(3) of the Act to issue notification with retrospective effect. A bench of this court in M/s MRF Ltd. v. Deputy Commissioner (Law) (1998 (6) KTR 183) took the view that the Government have no power to issue notification with retrospective effect which was affirmed by the apex court in Deputy Commissioner (Law) v. MRF Ltd. (2001 (121) STC 274). Government later issued SRO No 491/98 so as to amend SRO 38/98 stating that the said SRO would have only prospective effect from 15.1.1998. 7. The above mentioned notifications made it clear that centrifuging of field latex or fuming compound of the rubber by mixing it with chemicals would be covered by exclusion clause (ix) of paragraph 11 since clause (h) was added to the items with effect from 15.1.1998. Going by SRO 1729/93 as amended by SRO 38/98 and 491/98 conversion of rubber latex into centrifuge latex, raw rubber sheet, ammoniate latex, crepe rubber, crumb rubber or any other item falling under entry 110 of the First Schedule to the KGST Act, 1963 or treating the raw rubber in any form with chemicals to form a compound of rubber by whatever name called shall not be deemed to be manufacture. SRO 1729/93 was amended by SRO 39/98 and SRO No.491/98. 8. The Secretary (Taxes), Board of Revenue (Taxes) however issued order no C4.40588/TX dated 30.6.1998 holding that the petitioner would be eligible to sales tax exemption under notification SRO 1729/93 for compound rubber, tubes, repair materials, treat rubber, tyres, flaps and precured tread rubber. Senior Counsel for the appellant Sri F.S. Nariman submitted that the petitioners is entitled to get the benefit of SRO 1729/93 in view of the order passed by the Board of Revenue on 30.6.1998. Senior Counsel for the appellant Sri F.S. Nariman submitted that the petitioners is entitled to get the benefit of SRO 1729/93 in view of the order passed by the Board of Revenue on 30.6.1998. Further counsel also referred to Ext.P4 eligibility certificate issued by the Director of Industries and Commerce to the Secretary, Board of Revenue which would indicate that the petitioner had started manufacturing of compound rubber from 30.10.1996. Counsel submitted on the basis of the eligibility certificate and the exemption order of the Board of Revenue Ext.P5 order dated 30.6.1998 the petitioner is entitled to get the benefit of SRO 1729/93. Counsel submitted that by virtue of Ext.P5 order petitioner had acquired an absolute and indefeasible right of exemption in respect of salestax, surcharge, additional salestax and tax on purchase turnover for a period of seven years from commencement of commercial production on 30.12.1996 to 29.12.2003. Petitioner submitted acting on the order issued by the second respondent and the memorandum of understanding signed between the second respondent Government, petitioner has made huge investment for expansion particularly for the manufacture of compound rubber. Counsel further submitted, first respondent Assistant Commissioner being a subordinate authority is bound by the order passed by the Secretary, Board of Revenue. 9. Counsel placed reliance on the decision of the apex court in Assistant Commissioner of Commercial Taxes v. Dharmendra Trading Company (70 STC 59) counsel submitted that the Assistant Commissioner and the Deputy Commissioner (Salestax) are bound by the orders or notifications issued by the Government and also the order of exemption granted by the Secretary, Board of Revenue. Reference was also made to the decision of the apex court in Vadilal Chemicals Ltd v. State of A.P. (142 STC 76 and submitted that once eligibility certificate has been issued by the Board of Revenue, Tax Department, the taxing authorities cannot go behind the same. Reference was also made to the Full Bench decision of the court in Kurian Abraham Pvt. Ltd. v. Assistant Commissioner (137 STC 237) and contended that the circulars and orders issued by the Department are binding on the officers subordinate to them. Reference was also made to the Full Bench decision of the court in Kurian Abraham Pvt. Ltd. v. Assistant Commissioner (137 STC 237) and contended that the circulars and orders issued by the Department are binding on the officers subordinate to them. Counsel also place reliance on the decisions of the apex court Shamarao V. Parulekar v. District Magistrate, Thana (1952 SCR 683) and Orient Paper and Industries Ltd v. Union of India (1991 (Supp.) 1 SCC 81) and highlighted the fact that the amendments effected would have the effect of incorporating themselves into the old notification with pen and ink and there is no need to refer to the amending provisions at all. Ext. P5 order according to the counsel is statutory in nature. 10. Sri Raju Joseph, Special Government Pleader for Taxes on the other hand contended that Ext. P5 order of the Board of Revenue is not statutory in nature and cannot override the statutory notification SRO 1729/93 as amended by SRO 38/98 and SRO 491/98. Counsel submitted petitioner’s case squarely falls under sub clause (h) of Clause (ix) in paragraph 11 of SRO 1729/93 as amended by SRO 38/98. Counsel submitted that the amendment had come into force on 15.1.1998 and therefore would be effective from 15.1.1998 onwards and the petitioner would not get the benefit of the amended SRO 1729/93. Learned Government Pleader further submitted that the petitioner would get the benefit of the SRO till 14.1.1998. Eligibility certificate was issued by the Director of Industries and Commerce on 10.11.1997 prior to 15.1.1998 and therefore on the basis of the eligibility certificate petitioner is entitled to get the benefit till 14.11.1998 and not from 15.1.1998 onwards. Counsel submitted that Government have got the power to amend the notification virtue of Section 10(3) of the KGST Act and that the Government had not held out any promise to the petitioner. No evidence has been adduced to establish the principle of promissory estoppel. 11. We heard counsel on either sides at length and have also gone through the various notifications referred to earlier and also the various judicial precedents cited at the bar. 12. No evidence has been adduced to establish the principle of promissory estoppel. 11. We heard counsel on either sides at length and have also gone through the various notifications referred to earlier and also the various judicial precedents cited at the bar. 12. Government, as we have already pointed out, have issued SRO 1729/93 in exercise of the powers conferred under Section 10 (1) of the KGST Act in supersession of the notifications mentioned in the schedule thereto whereby it has granted tax exemption in public interest to industrial units/reduction in rate of tax payable on the sale or purchase of the goods. Clause 5 of the notification specifically stipulates that in the case of existing medium and large scale industrial units which undertake diversification, expansion or modernization on or after 1st April 1993 there shall be exemption for a period of seven years from the date on which such diversification, expansion or modernization has been completed on the turnover of goods taxable at the point of last purchase in the State which are used by such units for manufacturing the goods for sale within the State or interstate. The emphasis is on the manufacture of goods. The expression “manufacture” has been defined in clause (ix) of paragraph 11 of the notification. The clause also stipulates a negative list which states that processes included there in cannot be considered to be “manufacture” for the purpose of that notification. Originally clause (h) as such was not there in the notification. However, sub clause (g) of clause (ix) in paragraph 11 confers powers on the Government to include such other processes in the negative list. Resultantly the very unamended notification SRO 1729/93 itself has conferred the power on the Government to include other processes also in the negative list. Further Section 10 (3) of the KGST Act has conferred overall power on the Government to cancel or vary the notification issued under Section 10 by publication in the official gazette. SRO 1729/93 is a notification issued by the Government in exercise of the powers conferred under section 10(1) of the Act. And Section 10 (3) confers power on the Government to cancel or vary any notification issued under sub-section (1). It is in exercise of the power conferred under section 10(1) of the Act, and Section 10(3) confers power on the Government to cancel or vary any notification issued under sub-section (1). And Section 10 (3) confers power on the Government to cancel or vary any notification issued under sub-section (1). It is in exercise of the power conferred under section 10(1) of the Act, and Section 10(3) confers power on the Government to cancel or vary any notification issued under sub-section (1). It is in exercise of the power conferred under Section 10 (3) read with sub clause (g) of clause (ix) of paragraph 11 of SRO 1729/93 Government have issued SRO 491/98 by incorporating sub clause (h) to clause (ix) of paragraph 11 of SRO 1729/93. Therefore, those units who have undertaken the process of conversion of rubber latex into centrifuged latex, raw rubber sheet, ammonium sheet latex, crepe rubber, crump rubber or any other item falling under entry 110 of Ist Schedule to KGST Act would get the benefit of SRO 1729/93 only till 14.1.1998 and not beyond that by virtue of inclusion of the above processes in the negative list from 15.1.1998 onwards vide SRO 38/98 read with SRO 491/98. Petitioner therefore would get the benefit of the un amended SRO 1729/93 only till 14.1.1998 and not from 15.1.1998 onwards. 13. EXT P5 is an order of exemption issued by the Board of Revenue on the basis of the eligibility certificate Ext P4 dated 10.11.1997. The eligibility certificate issued by the Director of Industries and commerce would hold good only till 14.1.1998 and not beyond that Clause 10 (b) of SRO 1729/93 stipulate that eligibility certificate for medium and large scale industries assisted by the Kerala State Industrial Development Corporation and Kerala State Industrial Development Corporation and Kerala Financial Corporation would be issued by the Corporation which render assistance and in other cases by the Director of Industries and Commerce on application by such units and order of exemption would be issued by the Secretary, Board of Revenue (Taxes). Clause (d) also stipulates that eligibility certificate should contain the date of commencement of commercial production and the monetary limit of exemption the unit is eligible for and the eligibility certificate issued in respect of existing medium and large scale industrial units which undertake expansion, modernization or diversification should also contain the date of commencement as well as the date of completion of such expansion, modernization or diversification. We are of the view Ext. We are of the view Ext. P5 though stipulate that period of exemption is from 30.12.1996 to 29.12.2003 so far as the processes which fall under sub clause (h) of clause (ix) in paragraph 11 of SRO 1729/93 are concerned the exemption will be available only till 14.11.1998 and not beyond that Ext.P4 eligibility certificate read with Ext.P5 would bind the officers and the petitioner only till 14.1.1998 and after the statutory amendment Ext P5 has no legal validity. Ext.P5 order issued by the Board of Revenue, in our view, cannot defeat the statutory notification issued by the Government in exercise of the powers conferred under Section 10 (1) read with Section 10 (3) of the KGST Act and clauses (g) and (h) of SRO 1729/93 as amended by SRO 38/98. The decision in Vadilal Chemicals’ case is of no assistance to the petitioner where the apex court held that the Department of Industries and Commerce having exercised its mind granted the eligibility certificate and hence the Commercial Tax Department cannot go behind it. In our view, Ext.P5 would go against the statutory notification and therefore would not operate beyond 15.1.1998. 14. Senior Counsel Sri F.S. Nariman placed considerable emphasis on Clause 2 of SRO 1092/99 which stipulates that industrial units which had been sanctioned exemption/deferment as per notification SRO No 1729/93 before 1st day of January 2000 shall continue to enjoy the concession for the full period covered by the order of exemption/deferment. Counsel submitted that the petitioner has satisfied all those conditions and therefore the unit is entitled to exemption from 30.12.1996 to 29.12.2003. Counsel submitted the order would fall under clause 2 of SRO 1092/99 and therefore entitled to get the concession for the full period. We find it difficult to accept the contention of the counsel. Government have decided to withdraw the benefit of exemption/deferment in respect of tax under the KGST Act granted to industrial unit as per notification SRO 1729/93 in respect of industrial units which are set up on or after 1.1.2000. But is has been specifically stated that in the case of units which have already commenced commercial production or taken up effective steps to set up industrial units prior to 1.1.200 will be allowed benefit of exemption or deferment granted as per notification SRO 1729/93 and nothing more and nothing less. Ext. But is has been specifically stated that in the case of units which have already commenced commercial production or taken up effective steps to set up industrial units prior to 1.1.200 will be allowed benefit of exemption or deferment granted as per notification SRO 1729/93 and nothing more and nothing less. Ext. P5 in our view would not come to the rescue of the petitioner even by the application of clause 2 of SRO 1092/99. We reiterate the order passed by the Board of Revenue cannot override the statutory notification issued by the Government. 15. We are not impressed by the argument of the counsel based on the principle of promissory estoppels not only due to the fact that there is no factual foundation in the writ petition but also on legal principles. Whatever promises held out to the petitioner on the basis of SRO 1729/93 have already been extended to the petitioner but only till 14.1.1998. From 15.1.1998 onwards amended SRO 1729/93 would come into play. Further we have already indicated, even the unamended SRO 1729/93 itself has got a clause that the Government can include other processes in the negative list of clause (ix) in paragraph 11 of the notification. These notifications are statutory and no plea and estoppel will lie against a statutory notification. Further even according to the petitioner the expansion was completed in the year 1996 and the order of the Board of Revenue is dated 30.6.1998 and there is nothing to show that the petitioner had effected huge investments. In any view, the Government have got the power under Section 10(3) to vary, amend or delete any notification and hence the plea of estoppel will not be available against the statute. 16. The plea of promissory estoppel also would not stand especially in the light of the various judicial pronouncements. Reference may be made to the decision of the apex court in Bannari Amman Sugars Ltd. v. Commercial Tax Officer (139 STC 86). The apex court held that no vested right as to a tax is acquired by any person who is granted a concession by the Government. The Government reserve the power to withdraw the concession if authorised by law. Section 10(3) of the KGST Act and SRO No. 1729/93 have conferred power on the Government to cancel or vary it. The apex court held that no vested right as to a tax is acquired by any person who is granted a concession by the Government. The Government reserve the power to withdraw the concession if authorised by law. Section 10(3) of the KGST Act and SRO No. 1729/93 have conferred power on the Government to cancel or vary it. Further a person who wanted to invoke the doctrine of promissory estoppel should make a solid foundation for that plea and establish in what way his position has been altered relying upon the promise. So such foundation has been laid in the petition, much less evidence or materials furnished. Plea of promissory estoppel therefore would not stand. 17. Ext. P9, we have noticed, is a notice issued under Section 45A of the KGST Act calling upon the petitioner to file objection to the proposal for levy of penalty. The legal basis on which the notice was issued has already been considered by us and answered. Learned single judge has however vacated the proposal to levy penalty under Ext.P9 notice and directed the officer to complete the assessment pending from 1997-98 onwards and the right to impose penalty has been kept open, after completing the assessment proceedings. No appeal has been preferred by the State against that direction and hence we find it unnecessary to express any final opinion on that direction. 18. We therefore find no reason to interfere with the judgment of the leaned single judge and the appeal is dismissed for the above mentioned reasons.