ORDER : 1. The validity of the Notification No. 11/2007-CE dated 1-3-2007 issued by the Central Government in the Ministry of Finance (Department of Revenue) taking away the benefits allowed to the appellant-firm under the Notifications No. 32/1999-CE and 33/1999-CE both bearing dated 8-7-1999 was challenged before the learned Single Judge, who, by the judgment dated 10-12-2010 in WP (C) No. 750 of 2010, dismissed the writ petition. Aggrieved by this, this appeal is NOW filed by the appellant-firm. 2. The facts giving rise to this appeal may be briefly noticed at the outset. The appellant is a company registered under the Companies Act, 1956 and has its units in Guwahati and Agartala and is engaged in the production of Jarda scented tobacco/pan masala containing tobacco falling under the heading of tariff 2403 99 30 and 2403 99 10 of the First Schedule to the Central Excise Tariff Act, 1985 (“Tariff Act” for short). In order to uplift the North Eastern India from economic backwardness and to attract investors’ confidence, the Central Government formulated the North Eastern Industrial Policy dated 24-12-1997 for facilitating industrial development in the North Eastern Region. One of the incentives being initiated was to provide Central Excise and Income Tax Exemption on various excisable commodities/goods including tobacco products for a period of ten years from the date of commencement of commercial production or date of issuance of the Notification, whichever was later. In furtherance of such policy decision, the Central Government issued the said Notification No. 32/99-CE and 33/99-CE exempting some specified goods manufactured in the specified areas of the North East India from, inter-alia, excise duty and additional excise duty, which were otherwise leviable on these goods. The summary of the said two Notifications are as under: (i) The Notification No. 32/99-CE applied to all goods specified in the First and Second Schedule to the Central Excise Tariff Act, 1985, which were cleared from units located in the areas specified in the said Notification. This Notification provided a mechanism whereby the manufacturer was to submit a statement of the duty paid to the concerned Central Excise authorities and after due verification, the manufacturer was entitled to a refund of the duty paid. This Notification provided a mechanism whereby the manufacturer was to submit a statement of the duty paid to the concerned Central Excise authorities and after due verification, the manufacturer was entitled to a refund of the duty paid. The exemption was available to all industrial units which had commenced their commercial production on or after 24-12-1997 or those industrial units that were in existence before 24-12-1997 but had undertaken substantial expansion by way of increase installed capacity by not less than twenty five per cent on or after 24-12-1997. The total period of the concession was 10 years from the date of publication of the notification or from the date of commencement of commercial production, whichever was later. (ii) The Notification No. 33/99-CE exempted all goods specified in the Schedule appended to the same Notification issued under the Central Excise Act, 1944 (“Excise Act” for short) and cleared from units, inter-alia, a unit located in the State of Assam, Tripura or Meghalaya or Mizoram or Manipur or Nagaland or Arunachal Pradesh. This Notification provided a mechanism whereby the manufacturer was to submit a statement of the duty paid to the concerned a statement of the duty paid to the concerned Central Excise authorities and after due verification, the manufacturer was entitled to a refund of the excise duty paid. The exemption was available to all industrial units which had commenced commercial production on or after 24-12-1997 or those industrial units that were in existence before 24-12-1997 but had undertaken substantial expansion by way of increased in installed capacity by not less that twenty five per cent on or after 24-12-1997. The total period of the concession was to be for a period of ten years from the date of publication of the notification or from the date of commencement of commercial production, whichever was later. 3. It is the case of the appellant that acting on the exemption so granted and in anticipation of the benefits so assured, it set up a total of 15 manufacturing units at Guwahati in the Industrial Estate, Bamunimaidan, out of which 4 are involved in the manufacturing of tobacco. Three tobacco manufacturing units were also set up at Agartala pursuance to the 1997 Industrial Policy and the Notifications issued in connection therewith. Three tobacco manufacturing units were also set up at Agartala pursuance to the 1997 Industrial Policy and the Notifications issued in connection therewith. According to the appellant, it has invested huge amounts in the North East by providing employment to the locals and stimulating industrialization in the region. Presently, it provides employment to about 2200 persons in its units and has planned several new units and ventures in the North East region on the assurance that exemption extended to them would continue for the next ten years. According to the appellant, the details of investment made as on 30-9-2009 are as under:- Particulars Amount in Lacs Land Rs. 45.46 Buildings Rs. 432.41 Plant & Machineries Rs. 1098.39 Furniture's & Fixtures Rs. 66.66 Office Equipments Rs. 138.21 Vehicles Rs. 40.01 Stocks Rs. 5089.89 Total Rs. 6911.03 It is stated by the appellant that it satisfied all the requirements of the said Notification and availed of the benefits of exemptions from payment of excise duty made thereunder in respect of the finished goods manufactured and cleared by them. The appellant was also availing of the benefit of exemption under the Notification No. 33/99-CE and were claiming refund of the excise duly deposited by it in cash during the period from 17-11-2000 to 28-2-2001. The Excise Department after verifying the claims of the appellant was granting refund of such duty to it during that period. 4. It is the further case of the appellant that the Central Government, however, issued the Notification No. 45/99-CE, dated 31-12-1999 amending the Notifications No. 32/99-CE and 33/99-CE which excluded all goods falling under Chapter 24 or Heading No. 21.06 of the First Schedule or Second Schedule to the Tariff Act. This implied that all tobacco products including pan masala containing tobacco, chewing tobacco and cigarettes stood excluded from the ambit of such exemption provided under the said two Notifications. Subsequently, the Central Government vide the Notification No. 1/2000-CE dated 17-1-2000 restored the said exemption to goods falling under Chapter 24 of the First Schedule or the Second Schedule of the Tariff Act. However, on 22-1-2001, the Central Government issued another notification, namely, Notification No. 1/2001-CE, removing the said exemption. This was soon followed by another Notification bearing No. 6/2001-CE dated 1-3-2001 excluding all goods falling under Chapter 24 of the First Schedule and the Second Schedule to the Tariff Act from the ambit of the exemption. However, on 22-1-2001, the Central Government issued another notification, namely, Notification No. 1/2001-CE, removing the said exemption. This was soon followed by another Notification bearing No. 6/2001-CE dated 1-3-2001 excluding all goods falling under Chapter 24 of the First Schedule and the Second Schedule to the Tariff Act from the ambit of the exemption. The Central Government, however, issued another Notification bearing No. 69/2003-CE, dated 25-8-2003 partially restoring the exemption that was withdrawn to the extent of 50% of the duty payable. It was stipulated therein that the exemption would be subject to certain conditions that it would be available only in respect of units that were located in the State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland or Tripura and for those units that commenced commercial production on or after 24-12-1997 but not later than 28-2-2001 and that the units should have continued their manufacturing activities after 28-2-2001 and should have availed of the benefits under Notification Nos. 32/99-CE and 33/99-CE. The Notification further stipulated that the sum of duty payable but for the exemption was to be utilized by the manufacturer only for investment in plants and machineries in a manufacturing unit which is located in the same 7 North East States and the said investments had to be made before the expiry of six months from the end of each quarter described above to a Committee consisting of the Chief Commissioner of Central Excise, Shillong, the Principal Secretary of the Department of Industries of the concerned State in which the unit was located and the Principal Secretary of the Department of Industries of the State in which the investment was made. The manufacturer was required to prove to the satisfaction of the Committee that the investment was made for plant and machinery in a manufacturing unit located in the concerned State. Once the Committee was satisfied that the investment was made in the plant and machinery of the manufacturing unit, it was to issue a certificate to that effect to the manufacturer within a period of one month as above. The certificate was then to be produced by the manufacturer within a period of two weeks from the date of issue of the said certificate to the jurisdictional Central Excise Officer. The certificate was then to be produced by the manufacturer within a period of two weeks from the date of issue of the said certificate to the jurisdictional Central Excise Officer. The investment made under the said Notification was required to be for a period of ten years from the date on which the investment was made. 5. Subsequently, another Notification No. 8/2004-CE dated 21-1-2004 was issued by the Central Government raising the exemption limit to 100% from 50% with similar procedural stipulations as in the Notification No. 66/2003-CE except that the investment could also be made in infrastructure or civil works or social projects apart from the investment in plants and machineries. Another Notification bearing No. 28/2004-CE was issued on 9-7-2004 making a series of procedural amendments to the said Notification No. 8/2004 wherein it was provided that the sum equal to the excise duty that was payable, but for the exemption, would be deposited by the manufacturer within 60 days from the end of the quarter in an Escrow Account opened by the manufacturer for that purpose. A bond equivalent to the exempted duty amount was also required to be executed by the manufacturer to safeguard the revenue as instructed by the Department. Further, it was stated that operation including withdrawal from and closure of the said escrow account had to be made with the prior approval of the jurisdictional Commissioner of Central Excise, taking into account the conditions specified in the said Notification. The Notification also required the manufacturer to invest the amount so deposited in the Escrow Account within two years from the date of the deposits and the said amount withdrawn from the Escrow Account was to be utilized for the purpose specified within 60 days of its withdrawal. Condition (EA) of the said Notification provided that if the manufacturer failed to make the deposit or invest the amount specified within the stipulated period and in accordance with the Notification, then the duty equivalent to that amount would be recoverable from the manufacturer along with interest as stipulated, inter-alia, by forfeiture of amount in the said Escrow Account. Condition (EA) of the said Notification provided that if the manufacturer failed to make the deposit or invest the amount specified within the stipulated period and in accordance with the Notification, then the duty equivalent to that amount would be recoverable from the manufacturer along with interest as stipulated, inter-alia, by forfeiture of amount in the said Escrow Account. To safeguard the revenue of the Government, measures were taken in two ways, namely, (i) by way of execution of bond at the time duty deposition in Escrow Account and (ii) by execution of tripartite agreement in which the manufacturer is bound to pay in case of failure to invest the amount so withdrawn within the prescribed time. 6. Pursuant to the said Notifications No. 8/2004-CE and No. 28/2004-CE, the appellant executed a bond and entered into a Tripartite Escrow Agreement with the respondent No. 3 and the State Bank of India, Guwahati on 21-6-2005 whereby the State Bank of India was appointed as the Escrow Agent. It was further stipulated in the agreement that operations of the account including withdrawals from and closure of the said Escrow Account were to be made with the prior approval of the jurisdictional Commissioner of Central Excise, Shillong and that if the balance amount lying with Escrow Account was not re-invested in terms of the Notification No. 28/2004-CE, the appellant should bind itself to pay on the demand of the Deputy Commissioner of the Central Excise or Assistant Commissioner of Central Excise, as the case may be, to the extent of the duty which was equal to the amount not re-invested along with interest thereon at the rate specified under Section 11 (AB) of the Excise Act with the amount lying in balance in the Escrow Account. 7. It is the case of the appellant that the Central Government, contrary to the assurances made in the earlier Notifications pursuant to which it had made huge investments in the Region, issued the Notification No. 11/2007-CE, dated 1-3-2007 amending the said Notifications No. 08/2004-CE and 28/2004-CE respectively and withdrawing the benefits which had accrued to it thereunder. According to the appellant, the effect of this amendment is that the exemption contained in the said Notifications was made inapplicable to the goods cleared after 1-3-2007. According to the appellant, the effect of this amendment is that the exemption contained in the said Notifications was made inapplicable to the goods cleared after 1-3-2007. This unilateral decision of the Central Government resulted in depriving the benefits of exemption of excise tariff and excise duty to the extent of 50% under the Notification No. 8/2004-CE and 28/2004-CE and 100% under the Notifications No. 32/99-CE and 33/99-CE for the said units set up by it in the years 1999, 2000, 2001, 2002, 2003 and 2007, though the Central Government had held out the promise that it would be entitled to the excise exemption for a period of ten years with effect from the dates of commencement of commercial production. 8. Subsequently, the Central Government issued the Notifications No. 21/2007-CE on 25-4-2007 amending the Notifications No. 32/99-CE and 33/99-CE and withdrawing the benefits which had accrued to the manufacturer under the said two Notifications. Resultantly, the exemption given in the said two Notifications became inapplicable to pan masala falling under Chapter 21 of the First Schedule to the Tariff Act even though the said units including the appellant had already commenced their productions on or before 31-3-2007. Aggrieved by this, the appellant made various representations before the respondent authorities requesting them to withdraw the impugned Notifications No. 11/2007-CE and 21/2007-CE as they are contrary to the Notifications No. 32/99-CE, 33/99-CE, 69/03-CE, 08/04-CE and 28/04-CE. Contending that such unilateral withdrawal is arbitrary and unwarranted as well as defeats its legitimate expectation and the doctrine of promissory estoppel, the appellant unsuccessfully represented before the various authorities of the concerned Departments of both the Governments. However, it has come to the notice of the appellant that the Ministry of Commerce and Industries vide the Office Memoranda dated 22.11.2007, 24.1.2008 and 23.2.2009 requested the Ministry of Finance, Department of Revenue for taking a decision on the appellant’s request for reconsideration of the withdrawal of excise duty exemption made under the Policy 1997, but it came a cropper. It is further pointed out by the appellant that it had faced enormous difficulties in obtaining the benefit of such exemption notification during the subsistence of the exemption period and that the respondents and the Central Excise officials were engaging in numerous illegal and arbitrary actions of appropriating huge amounts of money lying in their escrow accounts and its group companies without any rhyme or reason. According to the appellant, the Central Excise authorities and the Investment Appraisal Committee have been conducting their functions under the Notifications No. 8 and 28 illegally and arbitrarily in denying investment certificates to it and its group companies. Aggrieved by that, the appellant also filed WP (C) No. 591 of 2008, 1048 of 2008 and 2148 of 2008 challenging the arbitrary exercise of powers by the respondent authorities denying it the benefit granted under the excise exemption notifications. These writ petitions were allowed, but an appeal against the said order was filed before the Division Bench which stayed the said order. 9. The respondents No. 1 to 4 contested the writ petition and filed two affidavits. In the first affidavit filed on behalf of the respondent No. 2, the promulgation of the policy of 1997 and the notifications No. 32/99-CE and 33/99-CE dated 8. 7. 1999, the incentives thereunder including central excise holiday for a period of 10 years for the goods specified therein vis-à-vis the industrial units identified, the entitlement of the petitioner and the grant thereof to it were admitted. The answering respondents averred that subsequent thereto though the Central Government issued notification No. 45/99 dated 31.12.1999 under Section 5a of the Act whereby the notifications No. 32/99-CE and 33/99-CE dated 8.7.99 were amended with effect from that date excluding all tobacco related products falling under Chapter 24 or heading No. 21. 06 of the First Schedule or Second Schedule of the Central Excise Tariff Act, 1985, from the purview of the exemption, the benefit was, however, restored by the notification no. 1/2000 dated 17.1.2000. Thereafter by Notification No. 1/2001-CE dated 22.1.2001 the exemption on cigarettes was withdrawn. This was followed by the notification No. 6/2001-CE dated 1.3.2001 removing the excise duty exemption on all goods falling under Chapter 24 of the First Schedule of the Second Schedule of the Central Excise Tariff Act, 1995 and excluding all the goods from the purview of the notifications No. 32/99-CE and 33/99-CE dated 8.7.99 and the Notification No. 33/99-CE dated 8-7-99. According to the answering respondents, the Government of India, on a due consideration of the achievements in the realm of industrial development in the North East Region, mushroom growth of tobacco related companies and heavy refund due to excise duty exemptions, the Government of India in public interest amended the Finance Act, 2003 by inserting Section 154 therein and consequently rolled back the benefit of excise duty exemption with retrospective effect thus effecting cessation of the benefits under Policy 1997 vis-a-vis tobacco. Reference to the determination made by the Apex Court in R.C. Tobacco (P) Ltd. vs. Union of India, (2005) 7 SCC 725 sustaining the aforementioned amendment of the Central Act, 1944 by the Finance Act 2003 has been made to fortify their contention. 10. On a post-assessment of the arrangement so contemplated, the Government decided against the retention of Central Excise Duty for investment and thus issued notification No. 28/04 dated 9.7.2004 introducing Escrow Account Mechanism System and accordingly amended the contents of the notification No. 8/2004 dated 21.1.2004. The post- escrow period also witnessed various problems according to the answering respondents, as the Investment Appraisal Committee detected mis-utilisation of the investment as well as utilisation of the escrow fund. The Government decided to not to operate the operation of the escrow account and eventually issued the Notification No. 11/07 dated 1.3.2007 under Section 5A(1) of the Central Excise Act, 1944 read with Section 3 of the Additional Duties of Excise (Goods of Specific of Importance) Act, 1957 and further amended, in public interest, the Notification No. 8/04-CE dated 21-1-2004 clarifying that the exemption contained therein would not be available to the goods cleared on or after the first day of March, 2007. 11. While reiterating that the promise of incentives under Policy 1997 had ceased with the amendment vide the Finance Act, 2003 read with the Ninth Schedule thereto excluding tobacco and other products specified therein from the purview of the exemption, the partial respite from this levy granted by the notification No. 69/03 dated 25. 8. 2003 and 11/07-CE dated 9.7. 2004 has been asserted to be independent of the aforementioned policy and not by way of extension thereof. It has been stated that out of an amount of Rs. 100 crores represented by the appellant to have been invested during the pre-escrow period, only an amount of Rs. 8. 2003 and 11/07-CE dated 9.7. 2004 has been asserted to be independent of the aforementioned policy and not by way of extension thereof. It has been stated that out of an amount of Rs. 100 crores represented by the appellant to have been invested during the pre-escrow period, only an amount of Rs. 34 crores had been certified by the Investment Appraisal Committee to have been genuinely applied in its plants and machinery and social infrastructure projects. Referring to the negative list in the Policy 2007, the answering respondents traced the root of the said measure to Section 154 of the Finance Act, 2003 whereby tobacco and goods covered under Chapter 21 of the First Schedule of the Tariff Act 1985 including pan masala had been withdrawn from the purview of exemption of the central excise duty as evidenced by the Ninth Schedule thereto. The impugned Notification dated 25.4.2007 has been justified on this plea as well as on the ground of public interest bearing in mind the adverse ramifications of the use of tobacco products and the resultant health hazards in the country. The answering respondents insisted that the assurance of the continuance of the benefit under Policy 1997 vis-a-vis industrial units that had commenced commercial production on or before 31.3.2007 would not apply for tobacco and tobacco based products. The impugned notification dated 25.4.2007 has also been endorsed stating that the grant of exemption of excise duty in respect of tobacco products did not yield any noticeable progress or industrial development as contemplated. 12. Reiterating its pleaded assertions, the appellant highlighted the inconsistency in the approach of the respondents in withdrawing the exemption from central excise duty on tobacco while sustaining the income tax exemption/rebate extended by the Policy 1997. According to it, the grant of exemption of excise duty after the incorporation of Section 154 of the Finance Act, 2003 by the Notification No. 69/2003-CE dated 25/8/2003 negated the case of the respondents that the promise of the said incentive came to end by such amendment. While insisting that the Policy of 2007 saved the manufacturing units of the appellant that had commenced production on or before 31.3.2007, it reiterated its attack against the impugned notification dated 25.4.2007 as illegal, arbitrary and mala-fide. While insisting that the Policy of 2007 saved the manufacturing units of the appellant that had commenced production on or before 31.3.2007, it reiterated its attack against the impugned notification dated 25.4.2007 as illegal, arbitrary and mala-fide. It submitted that it was entitled to the protection of Section 38A of the Act and refuted the justification of public interest in issuing the impugned notification. 13. In their additional affidavit, the respondents No. 1 to 4 besides contending that the counter filed by the respondent No. 2 questioned the maintainability of the writ petition on the ground of delay as the impugned notification was dated 25.4.2007. Apart from asserting that the appellant even otherwise had failed to lay any factual foundation to invoke the doctrine of promissory estoppel, they accused it of suppression of the material fact that it had, the impugned notification notwithstanding, been paying central excise duty for the tobacco products on the clearance of their products in terms of normal duty as applicable till 30-6-008. As the withholding of the said fact had a vital and decisive bearing on the grant of interim order in its favour, the respondents pleaded that the petitioner has thereby disentitled itself for any equitable relief from this Court. 14. Dr. A.K. Saraf, the learned senior counsel for the appellant, contends that the learned Single Judge has patently fallen into error in holding that under IPR 2007, the saving clause, which entitled the units established under IPR 1997 to avail of the benefits for the remainder of the term was applicable only to units which were into manufacturing goods other than those listed in the negative list. Assailing the reliance placed by the learned Single Judge upon the fact that making the industries indulging in manufacturing of goods in the negative list would render Section 154 of the Finance Act, 2003 redundant, the learned senior counsel submits that such finding is misconceived inasmuch as the appellant is merely claiming the benefits of the Notification Nos. 8/2004-CE dated 21-1-2004 and 28/2004-CE dated 9-7-2004. 8/2004-CE dated 21-1-2004 and 28/2004-CE dated 9-7-2004. It is next contended by the learned senior counsel that if the Notifications No. 8/2004-CE and 28/2004-CE, which were issued after the enactment of Section 154 of the Finance Act, 2003, are valid for the purpose of granting exemption of excise duty to goods falling under Chapter 24 of Schedule I or II of CET Act, then the saving clause of IPR 2007 would not be rendered redundant if the units manufacturing products, which are listed in the negative list, are also given the benefit of the same. He also contends that the withdrawal of benefits promised under the Notification No. 8/2004-CE dated 21-1-2004 and No. 28/2004-CE dated 9-7-2004 by the Notification No. 11/2007-CE and Notification No. 21/2007-CE is arbitrary and unreasonable inasmuch as the respondent authorities could not have withdrawn the Excise Duty exemption when the same units are still allowed to avail of 100% Income Tax exemption under Section 80-IB of the Income Tax Act, 1961. He, therefore, submits that such withdrawal is without any application of mind and is arbitrary and, as such, the Notification No. 11/2007-CE and Notification No. 21/2007-CE cannot be sustained in law and are liable to be quashed. In defending the impugned judgment and the impugned Notifications, Mr. S.C. Keyal, the learned Assistant Solicitor General of India (ASG), reiterated the same contentions urged before the learned Single Judge and further submits that the legality of the withdrawal of the benefit granted to the tobacco manufacturing units such as the appellant under the 1997 Industrial Policy by Section 154 of the Finance Act, 2003 was already upheld the Apex Court in R.C. Tobacco (P) Ltd. v. Union of India, (2005) 7 SCC 725 . He, therefore, submits that the impugned judgment is perfectly in order and does not warrant the interference of this Court. 15. We have perused the impugned judgment, the pleadings of the parties and other materials on record, and have also heard both the learned counsel appearing for the rival parties. In order to arrive at the right answer to any question, the right question shall have to be formulated. 15. We have perused the impugned judgment, the pleadings of the parties and other materials on record, and have also heard both the learned counsel appearing for the rival parties. In order to arrive at the right answer to any question, the right question shall have to be formulated. H.M. Seervai, the famous jurist, used to say, “Ask the right question, you will never get the wrong answer, but ask the wrong question, you will never get the right answer!” In this writ appeal, we are of the view that the right question to be asked for effective adjudication is: Whether the State-respondents are barred by the doctrine of promissory estoppel from issuing the impugned Notification No. 11/2007-CE dated 1-3-2007 withdrawing full and partial exemption of excise and excise tariff duty extended to the appellant made available to it by the Notification No. 8/2004-CE dated 21-1-2004 and the Notification No. 28/2004-CE dated 9-7-2004? To appreciate the controversy, the text of the impugned Notification dated 1-3-2007 is reproduced hereunder: Notification No. 11/2007-Central Excise New Delhi, the 1st March, 2007 10 Phalguna, 1978 (Saka) G.S.R.(E) – In exercise of the powers conferred by sub-section (1) section 5A of the Central Excise Act, 1944 (I of 1944), read with sub-section (3) of section 3 of the Additional Duties of Excise (goods of Special Importance) Act, 1957 (58 of 1957), and sub-section (3) of section 136 of the Finance Act, 2001 (14 of 2001), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendment in the Notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 8/2004-Central Excise, dated 21st January, 2004 which was published in the Gazette of India, /extraordinary, vide number G.S.R. 60-(E) of the same date, namely:- In the said Notification, after paragraph 1, the following paragraph shall be inserted, namely:- “2. The exemption contained in this Notification shall not be available to goods cleared on or after the 1st day of March, 2007. Provided that for the cleared on or before 28th February, 2007 and in respect of which the exemption has already been availed of, the conditions specified in this Notification shall continue to apply. (S. Bajaj) Under Secretary to Government of India. Provided that for the cleared on or before 28th February, 2007 and in respect of which the exemption has already been availed of, the conditions specified in this Notification shall continue to apply. (S. Bajaj) Under Secretary to Government of India. Note:- The principal Notification was published in the Gazette of India, Extraordinary, vide number G.S.R.60(E), dated 21st January, 2004, and was last amended by Notification No. 28/2004-Central Excise, dated 9th July, 2004, and published vide number G.S.R. 419(E), dated 9th July, 2004.” 16. A close look at the Notification No. 8/2004, dated 21-01-2004 will show that all goods falling under sub-heading 2401.90, 2402.00, 2404.41, 2404.49, 2404.50 or 2404.50 of the First Schedule and the Second Schedule to the Tariff Act were exempted from payment of the whole of the duties of excise, additional duties of excise leviable under the Tariff Act, the Additional Duties of Excise (Goods of Special Importance) Act and National Calamity Contingent Duty leviable thereon under sub-section (1) of section 136 of the said Finance Act subject to the conditions stipulated therein. As already noticed, all tobacco products including pan masala containing tobacco, chewing tobacco and cigarettes were excluded from the ambit of exemption off and on. At this stage, it may also be noticed that these items are enumerated in Chapter 24 of First Schedule to the Tariff Act. However, by the impugned Notification No. 11/07-CE, the exemptions from payment of excise and additional excise duties so leviable earlier would no longer be available to goods cleared on or after 1-3-2007. However, in so far as goods cleared on or before 28-2-2007 and in respect of which the exemption had already been availed of are concerned, the condition specified in the Notification No. 8/2004, dated 21-1-2004 would continue to apply. 17. It needs to be recapitulated that in order to implement the New Industrial Policy in the North Eastern Region, which was launched to promote and stimulate industrial production therein, the Government of India (GOI) issued the Notification No. 32/1999-CE dated 8-7-1999 exempting all goods in Schedule I and II of the Central Excise Tariff Act, 1985 (“CET Act”) which were manufactured in the areas mentioned in the notification; the notification laid down the criteria for becoming eligible to avail of the exemption. Simultaneously, another cognate Notification dated 33/1999-CE dated 8-7-1999 was issued by the GOI exempting goods mentioned therein from payment of excise duty leviable from the manufacturers. Soon thereafter, the GOI vide the Notification No. 45/99-CE dated 31-12-1999 amended the said two notifications excluding goods falling under Chapter 24 or heading No. 21.06 of Schedule I or II of the CET Act. However, even before the end of one month, the Notification No. 1/2000-CE dated 17-1-2000 reversed the changes made in the Notification No. 45-99-CE making available the exemption to all the goods under Schedule I and II. After a year or so, the GOI issued another Notification No. 1/2001-CE dated 22-1-2001 amending the said Notifications No. 32/99-CE and 33-99-CE whereby cigarettes falling under Chapter 24 of Schedule I CET Act was excluded from the exemption. This was followed by the Notification No. 6/2001-CE dated 1-3-2001 amending the Notifications No. 32/99-CE and 33/99-CE whereby the goods falling under Chapter 24 of Schedule I stood excluded. Thereafter, the Parliament passed the Finance Act, 2003, which came into force on 1-4-2003, by, among others, enacting Section 154 amending the said Notification No. 32/99-CE with effect from 8-7-1999 i.e. retrospectively providing that the exemptions notified therein should not be applicable to: (i) cigarettes falling under Chapter 24 of the 1st Schedule or the 2nd Schedule of the CET Act; (ii) pan masala containing tobacco falling under sub-heading No. 2106.00 or 2404.49, as the case may be. 18. Another Notification No. 69/2003-CE was issued on 25-8-2003 partially restoring the exemption of goods mentioned in Table 3 of the Notification of Chapter 24 of the Schedule I (2401.90, 2402.00, 2404.41, 2404.49, 2404.50 and 2404.99) of the CET Act that was withdrawn by the said Notification No. /2001-CE to the extent of 50% of the duty payable which was made available only to the units located in the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Nagaland and Tripura and for those units which had commenced commercial production on or after 24-12-997 but not later than 28-2-2001 and the units should have continued its manufacturing activities after 8-2-2001 and should have availed of the benefits under the Notification No. 32/99-CE and 33/99-CE subject, however, to their fulfilling certain conditions stipulated therein. This was followed by another Notification No. 8/2004-CE dated 21-1-2004 exempting goods falling under the said the Notification No. 69/2003-CE from 100% duties of excise subject certain conditions. Subsequently, another Notification No. 28/2004-CE was issued on 9-7-2004 by the GOI amending the said Notification No. 8/2004-CE stipulating for the first time the mechanism of escrow account for ensuring that money earned from exemption is re-invested in the State itself. Some three year thereafter, the Department of Industrial Police and Promotion, Ministry of Industry and Commerce launched the North East Industrial and Investment Promotion Policy, 2007 containing a saving clause declaring that “industrial units which have commercial production on or before 31-3-2007 would continue to get benefits/incentives under NEIP, 1997”. The new Policy included a negative list which excluded units manufacturing certain class of goods from eligibility under new Policy related exemption. This negative list included (i) all goods falling under Chapter 24 of 1st Schedule, CET Act which pertains to tobacco and manufactured tobacco substitutes; (ii) Pan Masala as covered under Chapter 21 of the 1st Schedule to the CET Act, etc. On 1-3-2007, the GOI issued another Notification No. 11-2007-CE amending the Notification No. 8/2004-CE whereby the exemption granted therein was not made available to goods cleared on or after 1st day of March, 2007. This was followed by another Notification No. 21/2007-CE dated 25-4-2007 further amending the Notification No. 32/99-CE which has the effect of excluding pan masala under Chapter 21; goods falling under Chapter 24 and plastic bags of less than 20 microns from the ambit of exemption. 19. Aggrieved by this Notification No. 11/2007-CE dated 1-3-2007, the writ petition was filed before the learned Single Judge for quashing the same and to issue a writ of mandamus directing the respondent authorities to restore the benefits under the Notification Nos. 08/04-CE and 28/04-CE to the North East Region. 19. Aggrieved by this Notification No. 11/2007-CE dated 1-3-2007, the writ petition was filed before the learned Single Judge for quashing the same and to issue a writ of mandamus directing the respondent authorities to restore the benefits under the Notification Nos. 08/04-CE and 28/04-CE to the North East Region. At this stage, it may not be out of place to reproduce hereunder the provisions of Section 5-A of the Excise Act, which are in the following terms: “5-A. Power to grant exemption from duty of excise.—(1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon: Provided that, unless specifically provided in such notification, no exemption therein shall apply to excisable goods which are produced or manufactured— (i) in a free trade zone and brought to any other place in India; (ii) by a hundred per cent export-oriented undertaking and [brought to any other place in India. Explanation.—In this proviso, “free trade zone” and “hundred per cent export-oriented undertaking” shall have the same meanings as in Explanation 2 to sub-section (1) of Section 3. (1-A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods. (2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from payment of duty of excise, under circumstances of an exceptional nature to be stated in such order, any excisable goods on which duty of excise is leviable. (2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from payment of duty of excise, under circumstances of an exceptional nature to be stated in such order, any excisable goods on which duty of excise is leviable. (2-A) The Central Government may, if it considers it necessary or expedient so to do for the purpose of clarifying the scope or applicability of any notification issued under sub-section (1) or order issued under sub-section (2), insert an explanation in such notification or order, as the case may be, by notification in the Official Gazette at any time within one year of issue of the notification under sub-section (1) or order under sub-section (2), and every such explanation shall have effect as if it had always been the part of the first notification or order, as the case may be. (3) An exemption under sub-section (1) or sub-section (2) in respect of any excisable goods from any part of the duty of excise leviable thereon (the duty of excise leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any excisable goods in the manner provided in this sub-section shall have effect subject to the condition that the duty of excise chargeable on such goods shall in no case exceed the statutory duty. Explanation.—“Form or method”, in relation to a rate of duty of excise means the basis, namely, valuation, weight, number, length, area, volume or other measure with reference to which the duty is leviable. Explanation.—“Form or method”, in relation to a rate of duty of excise means the basis, namely, valuation, weight, number, length, area, volume or other measure with reference to which the duty is leviable. (4) Every notification issued under sub-rule (1), and every order made under sub-rule (2), of Rule 8 of the Central Excise Rules, 1944, and in force immediately before the commencement of the Customs and Central Excises Laws (Amendment) Act, 1988 shall be deemed to have been issued or made under the provisions of this section and shall continue to have the same force and effect after such commencement until it is amended, varied, rescinded or superseded under the provisions of this section.] (5) Every notification issued under sub-section (1) 9 [or sub-section (2-A)] shall:— (a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette; (b) also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations, Customs and Central Excise, New Delhi, under the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963. (6) Notwithstanding anything contained in sub-section (5), where a notification comes into force on a date later than the date of its issue, the same shall be published and offered for sale by the said Directorate of Publicity and Public Relations on a date on or before the date on which the said notification comes into force.” 20. It may be noted that the above Notifications for exemption were issued by the Central Government from time to time under Section 5-A of the Excise Act. In this state of affairs of flip-flop decisions by the Central Government, the appellants are seeking the protection of the doctrine of promissory estoppel. What is the doctrine of promissory estoppel is explained in by Lord Denning in his inimitable words: “A man should keep his word. All the more so when the promise is not a bare promise but is made with the intention that the other party should act upon it. Just as contract is different from tort and from estoppel, so also in the sphere now under discussion promises may give rise to a different equity from other conduct. The difference may lie in the necessity of showing ‘detriment’. Just as contract is different from tort and from estoppel, so also in the sphere now under discussion promises may give rise to a different equity from other conduct. The difference may lie in the necessity of showing ‘detriment’. Where one party deliberately promises to waive, modify or discharge his strict legal rights, intending the other party to act on the faith or promise, and the other party actually does act on it, then it is contrary, not only to equity but also to good faith, to allow the promisor to go back on his promise. It should not be necessary for the other party to show that he acted to his detriment in reliance on the promise. It should be sufficient that he acted on it.” The Apex Court in Amrit Banaspati Co. Ltd. v. State of Punjab, (1992) 2 SCC 411 also explained doctrine in the following manner: “3. Law of Promissory Estoppel which found its ‘most eloquent exposition’ in Union of India v. Indo-Afghan Agencies Ltd. (1968) 2 SCR 366 : AIR 1968 SC 718 , crystallised in Motilal Padampat Sugar Mills Co. Pvt. Ltd. v. State of U.P. (1979) 2 SCC 409 : 1979 SCC (Tax) 144 : (1979) 2 SCR 641 as furnishing cause of action to a citizen, enforceable in a court of law, against government if it or its officials in course of their authority extended any promise which created or was capable of creating legal relationship, and it was acted upon, by the promisee irrespective of any prejudice. It was reiterated in Union of India v. Godfrey Philips India Ltd. (1985) 4 SCC 369 : 1986 SCC (Tax) 11 and was taken further when it was held that no duty of excise was assessable on cigarettes manufactured by assessee by including, cost of corrugated fibreboard containers, when it was clearly represented by the Central Board of Excise and Customs in response to the submission made by the Cigarette Manufacturers’ Association — and this representation was approved and accepted by the Central Government — that the cost of corrugated fibreboard containers would not be includible in the value of the cigarettes for the purpose of assessment of excise duty. In Delhi Cloth and General Mills Ltd. v. Union of India, (1988) 1 SCC 86 : (1988) 1 SCR 383 it was held: “All that is now required is that the party asserting the estoppel must have acted upon the assurance given to him. Must have relied upon the representation made to him. It means, the party has changed or altered the position by relying on the assurance or the representation. The alteration of position by the party is the only indispensable requirement of the doctrine. It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel.” (Underlined for emphasis) 21. The doctrine, however, has certain limitations as held by the Apex Court in Godfrey Philips India Ltd. (supra). This is what it said: “13. Of course we must make it clear, and that is also laid down in Motilal Sugar Mills case (supra) that there can be no promissory estoppel against the Legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or, power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires; if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in Motilal Sugar Mills case (supra) and we find ourselves wholly in agreement with what has been said in that decision on this point.” 22. To give a complete picture of the legal position with respect to the doctrine of promissory estoppel, we may also refer to and reproduce hereunder para 30 of the judgment of the Apex Court in Pawan Alloys & Casting Pvt. Ltd. Meerut v. U.P. State Electricity Board and Others, (1997) 7 SCC 251 : “30. Shri Dave next invited our attention to a three-Judge Bench judgment of this Court in the case of Shrijee Sales Corpn. wherein A.M. Ahmadi, C.J., speaking for the Bench considered the correctness of the aforesaid decision in Kasinka Trading, (1995) 1 SCC 274 . As the decision in Shrijee Sales Corpn. (1997) 3 SCC 398 has laid down the parameters of the field in which the doctrine of promissory estoppel can apply it is necessary to closely refer to the relevant observations found in the said judgment. It may be mentioned that the very same customs exemption notification which was considered by the Bench of two learned Judges in Kasinka Trading (1995) 1 SCC 274 was considered by a three-Judge Bench in Shrijee Sales Corpn. (1997) 3 SCC 398 While upholding the said notification Ahmadi, C.J. in paras 3 and 4 of the Report observed as under: “3. It is not necessary for us to go into a historical analysis of the case-law relating to promissory estoppel against the Government. Suffice it to say that the principle of promissory estoppel is applicable against the Government but in case there is a supervening public equity, the Government would be allowed to change its stand; it would then be able to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. However, the Court must satisfy itself that such a public interest exists. The law on this aspect has been emphatically laid down in the case of Motilal Padampat Sugar Mills Co. However, the Court must satisfy itself that such a public interest exists. The law on this aspect has been emphatically laid down in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. (1997) 2 SCC 409 : 1979 SCC (Tax) 144. The portion relevant for our purpose is extracted below: It is only if the Court is satisfied, on proper and adequate material placed by the Government, that overriding public interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it, that the Court would refuse to enforce the promise against the Government. The Court would not act on the mere ipse dixit of the Government, for it is the Court which has to decide and not the Government whether the Government should be held exempt from liability. This is the essence of the rule of law. The burden would be upon the Government to show that the public interest in the Government acting otherwise than in accordance with the promise is so overwhelming that it would be inequitable to hold the Government bound by the promise and the Court would insist on a highly rigorous standard of proof in the discharge of this burden. But even where there is no such overriding public interest, it may still be competent to the Government to resile from the promise “on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position” provided of course it is possible for the promisee to restore status quo ante. If, however, the promisee cannot resume his position, the promise would become final and irrevocable. Vide Emmanuel Ayodeji Ajayi v. Briscoe, (1964) 3 All ER 556. 4. Two propositions follow from the above analysis: (1) The determination of applicability of promissory estoppel against public authority/ Government hinges upon balance of equity or ‘public interest’. (2) It is the Court which has to determine whether the Government should be held exempt from the liability of the ‘promise’ or ‘representation’. In the present case, the first notification exempting the customs duty on PVC itself recites ‘… Central Government being satisfied that it is necessary in public interest to do so …’. (2) It is the Court which has to determine whether the Government should be held exempt from the liability of the ‘promise’ or ‘representation’. In the present case, the first notification exempting the customs duty on PVC itself recites ‘… Central Government being satisfied that it is necessary in public interest to do so …’. In the notification issued later which gave rise to the present cause of action, the same recitation is present.” It is, therefore, obvious that even though it may be found that the Government or any other competent authority had held out any promise on the basis of which the promisee might have acted, if public interest required recall of such a promise and such a public interest outweighed the interest of the promisee then the doctrine of promissory estoppel against the Government would lose its rigour and cannot be of any avail to such promisee. In the aforesaid decision the further contention canvassed on behalf of the appellant-promisee was also examined. That centred round the question whether the notification having fixed a time-limit for its operation could be rescinded prior to the expiry of the said period. Rejecting the said contention and upholding the right of the authorities to recall such a notification even earlier it was observed in para 7 of the Report that once public interest is accepted as the superior equity which can override individual equity, the principle should be applicable even in cases where a period has been indicated. It was further observed that the Government is competent to resile from a promise even if there is no manifest public interest involved, provided, of course, no one is put in any adverse situation which cannot be rectified. To adopt the line of reasoning in Emmanuel Ayodeji Ajayi v. Briscoe, (1964) 3 All ER 556 quoted in M.P. Sugar Mills, (1997) 2 SCC 409 : 1979 SCC (Tax) 144 even where there is no such overriding public interest, it may still be within the competence of the Government to resile from the promise on giving reasonable notice which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position, provided, of course, it is possible for the promisee to restore the status quo ante. If, however, the promisee cannot resume his position, the promise would become final and irrevocable. (Underlined for emphasis) 23. If, however, the promisee cannot resume his position, the promise would become final and irrevocable. (Underlined for emphasis) 23. As already noticed earlier, it was on the basis of the North East Industrial Policy dated 24-12-1997 that the two Notifications No. 32/99-CE and 33/99-CE were initially issued by the Central Government to give effect to the new initiatives for industrial development in the region. The object of the policy is to attract investment by promising exemption from payment of excise duty, additional duty of excise and income tax for a period of ten years from the date of commencement of commercial production or the date of issue of such Notification, whichever, was later, to bring about the development of infrastructural facilities and industries in the region. It is the specific case of the appellant that acting upon such promise, it invested a total of Rs. 69 crores for construction of land, building, plant & machineries, furnitures and fixtures, office equipments, vehicles, stocks. Having satisfied the criteria stipulated in the said two Notifications, the appellant availed of the benefit of exemption from payment of excise duty and additional excise duty for the goods manufactured and cleared by it and also claiming refund of the duty deposited by it in cash during the period from 17-11-2000 to 28-2-2001. The Excise Department, in turn, after verifying the claims for the refund used to refund the excise duty deposited into it during that period. 24. By announcing the North East Industrial Policy, 1997 implemented by the Notifications No. 32/99-CE and 33/99-CE, it can truly be said that the respondents have held out a promise to exempt the manufacturer of the specified goods from payment of excise duty and additional excise duty for the next ten years subject, however, to fulfilment of the criteria stipulated therein. As already noticed, the “flip-flop” of the Central Government issuing notifications granting, then withdrawing, again granting before finally withdrawing such benefits is evident. However, the Parliament passed Section 154 of the Finance Act, 2003, which was enacted on 14-5-2003, making retrospective denial of exemption of such benefits. Thus, the exemptions available to the manufacturers of cigarettes from 1999 up to 27-1-2001 (except for a short period between 31-12-199 and 17-1-2000 during which it was not available), was rescinded retrospectively. However, the Parliament passed Section 154 of the Finance Act, 2003, which was enacted on 14-5-2003, making retrospective denial of exemption of such benefits. Thus, the exemptions available to the manufacturers of cigarettes from 1999 up to 27-1-2001 (except for a short period between 31-12-199 and 17-1-2000 during which it was not available), was rescinded retrospectively. This meant that the excise duty already refunded to the manufacturers would be liable to be recovered, no further refund would be made and that the manufacturers would be liable to pay the excise duty not paid when the exemption was in force i.e. between 8-7-1999 and 27-1-2001. If that is the end of the matter, the appellant may not have any case at all. But then, the respondent authorities thereafter issued the Notification No. 69/2003-CE dated 25-8-2003 partially restoring the exemption of goods mentioned in Table 3 of the Notification of Chapter 24 of the Schedule I (2401.90, 2402.00, 2404.41, 2404.49, 2404.50 and 2404.99) of the CET Act that was withdrawn by the said Notification No. /2001-CE to the extent of 50% of the duty payable which was made available only to the units located in the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Nagaland and Tripura and for those units which had commenced commercial production on or after 24-12-997 but not later than 28-2-2001 and the units should have continued its manufacturing activities after 8-2-2001 and should have availed of the benefits under the Notification No. 32/99-CE and 33/99-CE subject, however, to their fulfilling certain conditions stipulated therein issued the Notifications No. 8-4-04-CE dated 21-1-2004 exempting goods falling under the said the Notification No. 69/2003-CE from 100% duties of excise subject certain conditions. Subsequently, another Notification No. 28/2004-CE was issued on 9-7-2004 by the GOI amending the said Notification No. 8/2004-CE stipulating for the first time the mechanism of escrow account for ensuring that money earned from exemption is re-invested in the State itself. 25. Obviously, these three Notifications were issued subsequent to the enactment of the Section 154 of the Finance Act, 2003. Therefore, there is force in the contention of the learned senior counsel for the appellant that inasmuch as Section 154 of the Finance Act, 2003 was enacted prior to the said three Notifications, it has no relevance in this case nor can it have any adverse effect on the rights already accrued to the petitioners thereunder. Therefore, there is force in the contention of the learned senior counsel for the appellant that inasmuch as Section 154 of the Finance Act, 2003 was enacted prior to the said three Notifications, it has no relevance in this case nor can it have any adverse effect on the rights already accrued to the petitioners thereunder. The impugned Notification No. 11/2007-CE dated 1-3-2007 was issued in exercise of the powers conferred under Section 5A(1) of the Excise Act. The contention of the learned senior counsel for the appellant is that the impugned Notification, in so far as it takes away the rights already accrued to the appellant in terms of the Notifications No. 11/04-CE and 28/04-CE is concerned, is illegal inasmuch as the parent Act i.e. Excise Act does not give the Ministry of Finance the power to issue such Notification with retrospective effect, and has also infringes Section 38A of the Excise Act, which provides that the rights which have accrued or vested in a party by prior Notification shall not be affected by an amendment to the Notification. If any authority is required in this behalf, we may conveniently refer to Mahabir Vegetable Oils (P) Ltd. V. State of Haryana, (2006) 3 SCC 620 . This is what the Apex Court said: “38. The promises/representations made by way of a statute, therefore, continued to operate in the field. It may be true that the appellants altered their position only from August 1996 but it has neither been denied nor disputed that during the relevant period, namely, August 1996 to 16-12-1996 not only have they invested huge amounts but also the authorities of the State sanctioned benefits, granted permissions. Parties had also taken other steps which could be taken only for the purpose of setting up of a new industrial unit. An entrepreneur who sets up an industry in a backward area unless otherwise prohibited, is entitled to alter his position pursuant to or in furtherance of the promises or representations made by the State. The State accepted that equity operated in favour of the entrepreneurs by issuing Note 2 to the notification dated 16-12-1996 whereby and whereunder solvent extraction plant was for the first time inserted in Schedule III i.e. in the negative list. 39. Both the provisions contained in Schedule III and Note 2 formed part of subordinate legislation. The State accepted that equity operated in favour of the entrepreneurs by issuing Note 2 to the notification dated 16-12-1996 whereby and whereunder solvent extraction plant was for the first time inserted in Schedule III i.e. in the negative list. 39. Both the provisions contained in Schedule III and Note 2 formed part of subordinate legislation. By reason of the said note, the State did not deviate from its professed object. It was in conformity with the purport for which original Rule 28-A was enacted. 40. We, in this case, are not concerned with the quantum of exemption to which the appellants may be entitled to, but only with the interpretation of the relevant provisions which arise for consideration before us. 41. We may at this stage consider the effect of omission of the said note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect and retroactive operation, if any power in this behalf is contained in the main Act. The rule-making power is a species of delegated legislation. A delegatee therefore can make rules only within the four corners thereof. 42. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. (West v. Gwynne, (1911) 2 Ch 1 : 104 LT 759 (CA).” 26. Thus, in our opinion, prima facie, the impugned Notification No. 11/2007-CE is hit by the doctrine of promissory estoppel for the following reasons: (a) By the North East Industrial Policy, 1997 implemented by the Notifications No. 32-1999-CE and No. 33-1999-CE, a promise was held out by the respondent authorities that excise and additional excise exemptions would be given to those investors who started production of identified goods for a period of ten years; (b) The appellant believed that the promise was true and, if acted upon, would be entitled to a refund of excise duty, and had, therefore, acted upon such promise; (c) While acting upon such promise, the appellant altered its position by investing sixty-nine crores of rupees in land, buildings, plants and machineries, office equipments, vehicles and stocks. (d) The authority issuing the Notifications Nos. 11/04-CE and 28/04-CE acted within the scope of his authority. (d) The authority issuing the Notifications Nos. 11/04-CE and 28/04-CE acted within the scope of his authority. (e) The impugned Notification No. 11/07-CE is ultra vires Section 5A of the Excise Act and is, therefore, not operative; there is thus no difficulty in invoking the doctrine of promissory estoppel. 27. It is not, however, necessary for the appellant to further prove that any damage, detriment or prejudice was caused to it by making such investment. What is now to be seen is whether there is overriding public interest compelling the State-respondents to withdraw the benefits already extended to the appellant and whether it may still be within the competence of the respondent authorities to resile from the promise on giving reasonable opportunity of resuming the position of the appellant even where there is no such overriding public interest provided, of course, it is possible for the appellant to restore the status quo ante, but if that is not possible, the promise would become final and irrevocable. As already held by the Apex Court in Motilal Padampat Sugar Mills Co. Ltd. (supra), this Court will not act on the mere ipsi dixit of the Government, for it is the Court which has to decide and not the government whether the Government should be held exempt from liability. This is the essence of the rule of law. The burden would be upon the Government to show that the public interest is so overwhelming that it would be inequitable to hold the government bound by the promise and the Court will insist on a highly rigorous standard of proof in the discharge of this burden. The main reasons given by the respondent authorities are found at para 4(xi) to (xiv) of their counter-affidavit, namely, (i) the appellant misutilized the escrow account in respect of its investment. During the period w.e.f. 25-8-2003 to 21-1-2004 i.e. the period between the Notification No. 69/03 dated 25-8-2003 and the Notification No. 8/04-CE dated 21-1-04 which is known as pre-escrow period, the appellant is shown to have invested Rs. 100 crores out of which only an amount of Rs. During the period w.e.f. 25-8-2003 to 21-1-2004 i.e. the period between the Notification No. 69/03 dated 25-8-2003 and the Notification No. 8/04-CE dated 21-1-04 which is known as pre-escrow period, the appellant is shown to have invested Rs. 100 crores out of which only an amount of Rs. 34 crores was certified by the Investment Appraisal Committee to have been invested and (ii) the Industrial Policy Resolution dated 1-4-2007 issued by the Ministry of Industry and Commerce inserted negative list which included tobacco products and pan masala enabling the withdrawal of these two items from tax exemption with retrospective effect in public interest taking into account health hazard and various other factors. 28. In so far as the impact of negative list is concerned, there is no difficulty in holding that these two items are still entitled to exemption inasmuch as towards of the end of the North East Industrial and Investment Promotion Policy, 2007 (NEIP, 2007) i.e. Clause 2, it is clearly provided that industrial units which had commenced commercial production on or before 31-3-2007 will continue to get benefits/incentives under the NEIP, 1997 notwithstanding the inclusion of tobacco products and pan masala among the negative lists as items ineligible for benefits under NEIP, 2007. Indisputably, the units of the appellant had commenced commercial production on or before 31-3-2007. This is evident from the Office memorandum dated 1-4-2007 which categorically stated that industrial units which had commenced commercial production on or before 31-3-2007 would continue to get benefits/incentives under NEIP, 1997. Under the circumstances, the right of the appellant to get benefits/incentives made available under the Notifications No. 11/04-CE and 28/04-CE cannot be abrogated by the impugned Notification. Once it is found that the appellant has admittedly acted upon the promise held out by the respondents in the Notifications No. 11/04-CE and 28/04-CE and made some investment, though the quantum whereof is not ascertainable at this stage as will be evident hereafter, it may not no longer be possible to restore the status quo ante. Therefore, the State-respondents are barred by the doctrine of promissory estoppel from issuing the impugned Notifications No. 11/2007-CE dated 1-3-2007 withdrawing full and partial exemption of excise and excise tariff extended to the appellant made available to it by the Notification No. 8/2004-CE dated 21-1-2004 and Notification No. 28/2004-CE dated 9-7-2004. However, the appellant is not yet out of the jungle. However, the appellant is not yet out of the jungle. This is so, because the answer of the appellant to the further contention of the respondents that the funds have been misutilized by it, is far from satisfactory. All that it can say in this regard is found at para 34 of its reply affidavit, which is as follows: “34. That the contents of paragraph 8 of the Affidavit in Opposition are denied as being incorrect, fabricated and vexatious. It is most respectfully submitted that there has been no misuse and mis-utilization of funds as alleged by the Respondent No. 2. It is denied that the funds from Escrow Account were not utilized in a proper manner. It is submitted that the Respondent No. 2 be put to strict proof of the same. In fact, the petitioner has faced immense difficulty in obtaining the benefit under the exemption notifications even during the subsistence of the exemption period. The Respondent and its Central Excise Officials have been engaged in numerous illegal and arbitrary actions of appropriating huge amounts of money lying in the escrow accounts of the Petitioner and its group companies without any justification or reason whatsoever. In fact, the Central Excise Authorities and the Investment Appraisal Committee have been conducting their functions under the Notifications Nos. 8 and 28 illegally and arbitrarily and have been denying investment certificates to the Petitioner and its Group Companies. Aggrieved by numerous illegalities and irregularities conducted by the Central Excise Authorities, the Petitioner was constrained to file writ petitions challenging the arbitrary actions of the Respondents and the other Central Excise Authorities. The Petitioner has accordingly filed WP(C) Nos. 591/2008, 1048 of 2008 and 2148 of 2008 challenging various aspects of illegal and arbitrary functioning of the authorities motivated at depriving the Petitioner of benefits granted under the excise exemption notifications and these petitions have been allowed in favour of the Petitioner vide judgment dated 6-1-2010.” 29. The paragraph extracted above is conspicuous by the lack of details and particulars in the case set up by the appellant. The paragraph extracted above is conspicuous by the lack of details and particulars in the case set up by the appellant. Detail averments were made by the respondent authorities as to the effect that between 25-8-2003 and 21-1-2004, which is known as the pre-escrow account period, the appellant was shown to have invested an amount of rupees one hundred crores out of which only rupees 34 crores was certified by the Investment Appraisal Committee by way of investment in plants and machineries and social infrastructure project, whereas the balance remained un-invested which was subsequently appropriated by the respondent authorities. The respondents also point out that the Commissioner had initiated recovery measures against the appellant by issuing demand notices under Section 11A of the Excise Act for the period of 25-8-2003 to 8-7-2004 as it defaulted in paying back duty to the public exchequer on its own. It is further pointed out by the respondents that during the period from 25-8-2003 to 8-7-2004, the appellant availed of duty exemption to the order of Rs. 96,61,11,858/- which required it to invest the equivalent amount. It was also required to produce investment certificates for the said amount, but it produced the investment certificate only to the tune of rupees thirty-four crores. According to the respondents, the balance amount of rupees sixty-three crores not so invested in the manner specified in the notification is required to be deposited back with the public exchequer. Instead, the appellant resorted to litigations causing inordinate delay to the respondents in recovering public money. In our opinion, these specific averments made by the respondent authorities have not received satisfactory response from the appellant despite establishing a case of promissory estoppel thereby creating hurdle to its case for complete relief from this Court. No copies of the judgments relied upon by it are also annexed to the writ petition or the memo of appeal. In this view of the matter, the Investment Appraisal Committee shall have to take a call on these issues again. Be that as it may, the impugned judgment is not sustainable in law, and is, therefore, liable to be set aside. 30. In the premises set forth above, this writ appeal is disposed of with the following orders:- (a) The impugned judgment dated 10-12-2010 passed by the learned Single Judge is, accordingly, set aside. Be that as it may, the impugned judgment is not sustainable in law, and is, therefore, liable to be set aside. 30. In the premises set forth above, this writ appeal is disposed of with the following orders:- (a) The impugned judgment dated 10-12-2010 passed by the learned Single Judge is, accordingly, set aside. (b) Consequently, the impugned Notification No. 11/2007-CE dated 1-3-2007 is hereby quashed; (c) The Investment Appraisal Committee is, therefore, directed to give an opportunity of hearing to the appellant to prove that it has actually invested Rs. 96,61,11,858/- in the specified items for availing of the benefits made available under the Notifications No. 8/04-CE and 28/04-CE dated 21-1-2004 and dated9-7-2004 respectively within a period of two months; (d) If the appellant can prove that it has actually invested Rs. 96,61,11,858/- or less, the Committee shall issue an Investment Certificate to that effect whereupon the respondent authorities shall refund to the appellant so much of the excise duty, which may become due to it, within a period of three months thereafter. (e) No cost.