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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7432 OF 2019
(Arising out of S.L.P.(C) No. 36926 of 2012)
UNION OF INDIA & ORS. .... APPELLANT(S)
VERSUS
M/s UNICORN INDUSTRIES .... RESPONDENT(S)
WITH
CIVIL APPEAL No. 2345 OF 2017 and
CIVIL APPEAL No. 2346 OF 2017
J U D G M E N T
B.R. GAVAI, J.
Leave granted in S.L.P.(C) No. 36926 of 2012.
2. The question of law that arises for consideration
in these appeals is, ‘as to whether, by invoking the
doctrine of promissory estoppel, can the Union of India
be estopped from withdrawing the exemption from payment
of Excise Duty in respect of certain products, which
exemption is granted by an earlier notification; when the
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Union of India finds that such a withdrawal is necessary
in the public interest.
3. Since the factual position as well as the
question of law arising in the present three appeals are
common, they are heard together and disposed of by this
common judgment. The appellant, Union of India, in
exercise of powers conferred by sub-section (1) of
Section 5A of the Central Excise Act, 1944 (1 of 1994)
(hereinafter referred to as the “Central Excise Act”)
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 3 of the
Additional Duties of Excise (Textiles and Textile
Articles) Act, 1978 (40 of 1978), being satisfied that it
is necessary in the public interest, by Notification No.
71 of 2003 dated 09.09.2003, exempted the goods specified
in the First Schedule and the Second Schedule to the
Central Excise Tariff Act, 1985 (5 of 1986) other than
the goods specified in Annexure-I to the said
Notification, from the payment of duties under the said
statutes. The notification provided that so much of the
duty of excise or additional duty of excise, as the case
may be, leviable thereon under any of the said Acts as
was equivalent to the amount of duty paid by the
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manufacturer of the said goods, other than the amount of
duty paid by utilisation of CENVAT credit under the
CENVAT Credit Rules, 2002, was exempted. This exemption
was available to the units located in Industrial Growth
Centre or Industrial Infrastructure Development Centre or
Export Promotion Industrial Park or Industrial Estate or
Industrial Area or Commercial Estate or Scheme Area, as
the case may be, in the State of Sikkim, as specified in
Annexure-II appended to the said notification. A
procedure was also prescribed under the said notification
for availing the benefit of exemption. Annexure-I thereto
provides the list of the products which were not entitled
for exemption. Clause 1 of the said Annexure reads thus:
“1. Tobacco and Tobacco products including
Cigarettes/ Cigars/ Gutkha”
Similar notifications were issued by the Union of
India being Notification Nos. 32 of 1999-CE and 33 of
1999-CE dated 08.07.1999 insofar as the State of Assam is
concerned.
4. By Notification No. 21 of 2007-CE dated
25.04.2007, the earlier notifications issued by it were
amended. The effect of the amendment was that the product
‘pan masala’ falling under Chapter 21 of the First
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Schedule of the Central Excise Tariff Act, 1985, the
goods falling under Chapter 24 of said First Schedule,
i.e., tobacco and manufactured tobacco substitutes and
plastic carry bags of less than 20 microns were included
in the negative list and as such were no longer entitled
for exemption from the excise duty. Being aggrieved by
the said notification, the respondent, namely, Unicorn
Industries in the Civil Appeal arising out of Special
Leave Petition (C) No. 36926 of 2012, approached the High
Court of Sikkim by way of Writ Petition (C) No. 22 of
2007. The High Court of Sikkim vide its judgment and
order dated 11.05.2012 allowed the writ petition and held
that the petitioner therein was entitled to exemption
from payment of excise duty on the manufacture of pan
masala from its unit situated in the State of Sikkim for
a period of 10 years from the date of commencement of the
commercial production, i.e., 27.06.2006.
5. Similarly, the respondent in Civil Appeal No.
2346 of 2017, namely, M/s Dharampal Satyapal Ltd., which
was a manufacturer of pan masala with tobacco and other
tobacco products, approached the Gauhati High Court by
way of a petition bearing No. PW(C) 749 of 2010. The said
petition was with regard to withdrawal of exemption in
respect of pan masala with tobacco. The Single Judge of
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the Gauhati High Court vide judgment and order dated
10.12.2010 found no substance in the petition and as such
dismissed the petition. Being aggrieved thereby, the said
respondent filed Writ Appeal No. 81 of 2011 before the
Appellate Bench of Gauhati High Court. Vide the judgment
and order dated 20.04.2016, the Appellate Bench of the
High Court allowed the appeal; set aside the judgment and
order passed by the Single Judge dated 10.12.2010 and
quashed Notification No. 11 of 2007-CE dated 01.03.2007.
It further directed the Investment Appraisal Committee to
give an opportunity of hearing to the appellant before it
(respondent herein) so that it can prove the amount it
had actually invested in the specified items for availing
the benefits under the earlier notifications and further
directed that if the appellant proves that it had
actually invested the amount, the respondent authorities
shall refund to the appellant so much of the excise duty
to which the appellant therein would be entitled as per
the earlier notifications.
6. The respondent in Civil Appeal No. 2345 of 2017,
namely, M/s Dharampal Satyapal Ltd., had also filed
another petition being Writ Petition (C) No. 749 of 2010
insofar as its product ‘pan masala without tobacco’, is
concerned. The same was also dismissed by the learned
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Single Judge of the Gauhati High Court vide the common
judgment and order dated 10.12.2010. It appears that the
appeal arising from the said petition being Writ Appeal
No. 223 of 2011 was separately heard by another Appellate
Bench of the Gauhati High Court. However, noticing that
the writ appeal arising out of the order of the Single
Judge regarding the product of the appellant therein,
i.e., ‘pan masala containing tobacco’ was already allowed
by the Appellate Bench of the High Court by Order dated
20.04.2016, the said writ appeal was also allowed, by the
judgment and order dated 25.05.2016 thereby setting aside
the Order passed by the learned Single Judge in Writ
Petition (C) No. 749 of 2010 so also the Notification
dated 25.04.2007. The respondent therein was directed to
refund the excise duty component to the appellant as is
admissible under the law.
7. Being aggrieved by the aforesaid judgments and
orders, one passed by the Sikkim High Court in the writ
petition and the other two passed by the Gauhati High
Court in the writ appeals, the Union of India is before
this Court.
8. Mr. Dhruv Agrawal, learned senior counsel
appearing on behalf of the appellants, submits that both,
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the Sikkim High Court as well as the Appellate Benches of
the Gauhati High Court have grossly erred in allowing the
writ petition and the writ appeals of the assessees. It
is submitted that, though the Union of India had
specifically contended before both the High Courts that
the 2007 Notifications were issued in the public
interest, the same has not been considered. It is
submitted that the Union of India, in exercise of its
delegated powers, is always empowered to modify and
withdraw the exemptions granted by it under the earlier
notification(s). It is submitted that the Union of India,
taking into consideration the public interest, that the
consumption of pan masala with tobacco or pan masala
without tobacco is hazardous to the human health and,
therefore, for curbing its consumption, had issued the
2007 Notifications thereby including pan masala in
Chapter 21 and all products contained in Chapter 24,
i.e., tobacco and manufactured tobacco substitutes, in
the negative list. It is submitted that, after taking
into consideration that the 2007 Notification was issued
in public interest, the Sikkim High Court ought not to
have interfered with it. He further submitted that the
reasoning given by the Sikkim High Court that pan masala
is not hazardous and, therefore, the 2007 Notification
cannot be said to be in the public interest is totally
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erroneous. It is further submitted that while doing so,
the Sikkim High Court has assumed the role of an expert
in the field and, therefore, travelled beyond its
jurisdiction.
9. Insofar as the Gauhati High Court is concerned,
the learned senior counsel submitted that the learned
Single Judge of the Gauhati High Court had rightly
dismissed the writ petitions, finding that in the
conflict between the interest of an individual and the
public interest, individual interest should give way to
the larger public interest. It is submitted that, the
Appellate Bench of the Gauhati High Court in its judgment
dated 20.04.2016 has grossly erred in interfering with
the reasoned order passed by the learned Single Judge. It
is submitted that, in the said appeal, the product that
fell for consideration before the Appellate Bench of the
High Court was Zarda scented tobacco and pan masala
containing tobacco. It is submitted that, the products
containing tobacco are indisputably hazardous to health
and, therefore, the Notification which withdraws
exemption granted for the manufacture of the said
products is undoubtedly in the larger public interest.
However, overlooking this aspect, the appeals have been
allowed. It is submitted that insofar as the other appeal
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is concerned, the another Appellate Bench has only relied
upon the judgment by the earlier Appellate Bench and has
observed that the only distinction in both the matters
was that in the earlier matter, the issue was with regard
to pan masala containing tobacco and in the matter before
them, the issue was with regard to pan masala without
tobacco and with these observation allowed the appeal.
10. The learned senior counsel relied on the
following judgments of this Court in the cases of Kasinka
Trading vs. Union of India1, Darshan Oils (P) Ltd. vs.
Union of India2, STO vs. Shree Durga Oil Mills3, Shrijee
Sales Corpn. vs. Union of India4, State of Rajasthan vs.
Mahaveer Oil Industries5, Shree Sidhbali Steels Ltd. vs.
State of U.P.6, DG of Foreign Trade vs. Kanak Exports7,
Pappu Sweets and Biscuits vs. Commr. Of Trade Tax, U.P.8
and Commr. of Customs vs. Dilip Kumar & Co.9,.
11. Shri Balbir Singh and Shri Nakul Dewan, learned
senior counsel appearing on behalf of the respondents,
have supported the impugned judgments and orders. It is
1 (1995) 1 SCC 274
2 (1995) 1 SCC 345
3 (1998) 1 SCC 572
4 (1997) 3 SCC 398
5 (1999) 4 SCC 357
6 (2011) 3 SCC 193
7 (2016) 2 SCC 226
8 (1998) 7 SCC 228
9 (2018) 9 SCC 1
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submitted that, the Sikkim High Court as well as the
Appellate Benches of the Gauhati High Court have rightly
relied upon the doctrine of promissory estoppel and
allowed the appeals. It is submitted that, it is only on
account of the representation given by the Union of India
and the State Governments that the industries established
in the notified areas of Sikkim as well as Assam would be
entitled for 100% exemption from central excise, the writ
petitioners before the High Court had established the
industries in such remote areas. It is submitted that,
the exemption notifications were issued in view of the
industrial policy of the Union of India as well as the
State Governments that on account of backwardness in
these areas, the industrialisation in these areas should
be promoted so that the economic development takes place.
It is submitted that, only on the assurance of the
Central as well as the State Governments, the writ
petitioners have invested huge amount and, as such, now
the Union of India could not be permitted in law to
resile from the assurance given by them to the writ
petitioners. It is submitted that, considering these
principles, the Sikkim High Court and the Appellate Bench
of the Gauhati High Court have granted relief to the writ
petitioners. It is submitted that, this Court has
consistently held that, if a party changes its position
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to its detriment, on account of a promise given by the
other party, the other party cannot be permitted to
resile from such a promise. It is submitted that the
doctrine of promissory estoppel is equally applicable to
the State and its functionaries. Reliance in this respect
is placed on the following judgments of this Court. M/s
Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar
Pradesh and Ors.10, Union of India & Ors. Vs. Godfrey
Philips India Ltd. & Ors.11 and Pawan Alloys & Casting
Pvt. Ltd. vs. U.P. State Electricity Board & Ors.12.
12. The issue raised in these appeals is no more res
integra. This Court in a catena of decisions has
considered the issue with regard to inapplicability of
the doctrine of promissory estoppel, when the larger
public interest demands so. We will refer, in brief, to
the earlier judgments of this Court.
13. In the case of Kasinka Trading (supra), this
Court was considering the case of the appellant, who were
manufacturing certain products, requiring PVC resin as
one of the raw materials for its manufacturing process.
By Notification No. 66 dated 15.03.1979 issued under
Section 25 of the Customs Act, 1962 which is pari materia
10 (1979) 2 SCC 409
11 (1985) 4 SCC 369
12 (1997) 7 SCC 251
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with Section 5A of the Central Excise Act, the PVC resin
was exempted from basic import duty. The exemption was to
be effective till 31.03.1981. However, by Notification
No. 205 dated 16.10.1980 issued under Section 25 of the
Customs Act, the exemption granted earlier came to be
withdrawn. A challenge similar to the one which is raised
herein was raised before this Court. This Court observed
thus:
“12. It has been settled by this Court that
the doctrine of promissory estoppel is
applicable against the Government also
particularly where it is necessary to prevent
fraud or manifest injustice. The doctrine,
however, cannot be pressed into aid to compel
the Government or the 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”.
There is preponderance of judicial opinion that
to invoke the doctrine of promissory estoppel
clear, sound and positive foundation must be
laid in the petition itself by the party
invoking the doctrine and that bald
expressions, without any supporting material,
to the effect that the doctrine is attracted
because the party invoking the doctrine has
altered its position relying on the assurance
of the Government would not be sufficient to
press into aid the doctrine. In our opinion,
the doctrine of promissory estoppel cannot be
invoked in the abstract and the courts are
bound to consider all aspects including the
results sought to be achieved and the public
good at large, because while considering the
applicability of the doctrine, the courts have
to do equity and the fundamental principles of
equity must for ever be present to the mind of
the court, while considering the applicability
of the doctrine. The doctrine must yield when
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the equity so demands if it can be shown having
regard to the facts and circumstances of the
case that it would be inequitable to hold the
Government or the public authority to its
promise, assurance or representation.”
(emphasis supplied)
14. It could thus be seen that, this Court has
clearly held that the doctrine of promissory estoppel
cannot be invoked in the abstract and the courts are
bound to see all aspects including the objective to be
achieved and the public good at large. It has been held
that while considering the applicability of the doctrine,
the courts have to do equity and the fundamental
principle of equity must forever be present in the mind
of the Court while considering the applicability of the
doctrine. It has been held that the doctrine of
promissory estoppel must yield when the equity so demands
and when it can be shown having regard to the facts and
circumstances of the case, that it would be inequitable
to hold the Government or the public authority to its
promise, assurance or representation. After considering
the earlier judgments on the issue, which have been
heavily relied upon by the assesses, this Court has
observed thus:
“21. The power to grant exemption from
payment of duty, additional duty etc. under the
Act, as already noticed, flows from the
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provisions of Section 25(1) of the Act. The power
to exempt includes the power to modify or
withdraw the same. The liability to pay customs
duty or additional duty under the Act arises when
the taxable event occurs. They are then subject
to the payment of duty as prevalent on the date
of the entry of the goods. An exemption
notification issued under Section 25 of the Act
had the effect of suspending the collection of
customs duty. It does not make items which are
subject to levy of customs duty etc. as items not
leviable to such duty. It only suspends the levy
and collection of customs duty, etc., wholly or
partially and subject to such conditions as may
be laid down in the notification by the
Government in “public interest”. Such an
exemption by its very nature is susceptible of
being revoked or modified or subjected to other
conditions. The supersession or revocation of an
exemption notification in the “public interest”
is an exercise of the statutory power of the
State under the law itself as is obvious from the
language of Section 25 of the Act. Under the
General Clauses Act an authority which has the
power to issue a notification has the undoubted
power to rescind or modify the notification in a
like manner.”
(emphasis supplied)
15. It could thus be seen that, it has been held by
this Court that an exemption notification does not make
the items which are subject to levy of customs duty etc.
as items not leviable to such duty. It only suspends the
levy and collection of customs duty etc. subject to such
conditions as may be laid down in the “public interest”.
It has further been held that, such an exemption by its
very nature is susceptible of being revoked or modified
or subjected to other conditions. It has been held that
the supersession or revocation of an exemption
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notification in the public interest is an exercise of the
statutory power by the State under the law itself. It has
further been held that under the General Clauses Act an
authority which has the power to issue a notification has
the undoubted power to rescind or modify the notification
in a like manner.
16. This Court, after considering the objections that
the exemption could not be withdrawn prior to the date
prescribed in the notification granting exemption has
observed thus:
“23. The appellants appear to be under the
impression that even if, in the altered market
conditions the continuance of the exemption may
not have been justified, yet, Government was
bound to continue it to give extra profit to
them. That certainly was not the object with
which the notification had been issued. The
withdrawal of exemption “in public interest” is a
matter of policy and the courts would not bind
the Government to its policy decisions for all
times to come, irrespective of the satisfaction
of the Government that a change in the policy was
necessary in the “public interest”. The courts,
do not interfere with the fiscal policy where the
Government acts in “public interest” and neither
any fraud or lack of bona fides is alleged much
less established. The Government has to be left
free to determine the priorities in the matter of
utilisation of finances and to act in the public
interest while issuing or modifying or
withdrawing an exemption notification under
Section 25(1) of the Act.”
(emphasis supplied)
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17. It has been observed, that the withdrawal of
exemption in public interest is a matter of policy and
the courts would not bind the Government to its policy
decisions for all times to come, irrespective of the
satisfaction of the Government that a change in the
policy was necessary in the public interest. It has been
held that, where the Government acts in public interest
and neither any fraud or lack of bona fides is alleged
much less established, it would not be appropriate for
this Court to interfere with the same. Ultimately, this
Court came to the conclusion that the withdrawal of the
exemption was in the public interest and, therefore,
refused to interfere with the order of the Delhi High
Court dismissing the petitions.
18. In the case of Shree Durga Oil Mills (supra), the
Government of Orissa had withdrawn the sales tax
exemption which was granted earlier under the Orissa
Sales Tax Act, 1947. Considering a similar challenge,
while reversing the judgment and order of the High Court,
this Court observed thus:
“21. Moreover withdrawal of notification was
done in public interest. The Court will not
interfere with any action taken by the Government
in public interest. Public interest must override
any consideration of private loss or gain.
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23. In the instant case, it has been stated
on behalf of the State that various notifications
granting sales tax exemptions to the dealers
resulted in severe resource crunch. On
reconsideration of the financial position, it was
decided to limit the scope of the earlier
exemption notifications issued under Section 6 of
the Orissa Sales Tax Act. Because of this new
perception of the economic scenario of the State,
the scope of the earlier notifications had to be
restricted. They were first abrogated altogether
on 20-5-1977. Thereafter, it was decided to grant
exemption at a limited scale.
24. In our opinion, the plea of change of
policy trade on the basis of resource crunch
should have been sufficient for dismissing the
respondent's case based on the doctrine of
promissory estoppel. Public interest demanded
modification of the earlier IPR.”
19. It could thus be seen that, it has been held that
when withdrawal of the exemption is in public interest,
the public interest must override any consideration of
private loss or gain. In the said case, the change in
policy and withdrawal of the exemption on the ground of
severe resource crunch have been found to be a valid
ground and to be in public interest.
20. A similar issue came up for consideration before
the Bench consisting three Judges of this Court in the
case of Shrijee Sales Corporation (supra). The
notification which came up for consideration was similar
with the notifications that fell for consideration in the
case of Kasinka Trading (supra). While considering the
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argument that when the notification prescribes a period
during which the exemption would be available, such an
exemption cannot be withdrawn till the end of the period
prescribed, this Court observed thus:
“7. The next question is whether the fact
that the Notification No. 66 mentioned the period
during which it was to remain in force, would
make any difference to the situation. In other
words, could it be said that an exemption
notified without specifying the period within
which the exemption would remain in force, would
be withdrawn in public interest but not the one
in which a period has been so specified? 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. 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 [Motilal Padampat Sugar Mills
Co. Ltd. v. State of U.P., (1979) 2 SCC 409, 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.”
(emphasis supplied)
21. It could thus be seen that this Court observed
that once public interest is accepted as a superior
equity which can override an individual equity, the same
principle should be applicable in such cases where the
period is prescribed.
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22. The another three Judges Bench of this Court in
the case of Mahavir Oil Industries (supra) has taken a
similar view. In the case of Shree Sidhbali Steels Ltd.
(supra), this Court was considering the question with
regard to validity of the notification which withdrew
33.33% of the hill development rebate, on the total
amount of electricity bill, granted under the earlier
notification. This Court while considering the similar
challenge observed thus:
“33. Normally, the doctrine of promissory
estoppel is being applied against the Government
and defence based on executive necessity would
not be accepted by the court. However, if it can
be shown by the Government that having regard to
the facts as they have subsequently transpired,
it would be inequitable to hold the Government to
the promise made by it, the court would not raise
an equity in favour of the promisee and enforce
the promise against the Government. Where public
interest warrants, the principles of promissory
estoppel cannot be invoked. The Government can
change the policy in public interest. However, it
is well settled that taking cue from this
doctrine, the authority cannot be compelled to do
something which is not allowed by law or
prohibited by law. There is no promissory
estoppel against the settled proposition of law.
Doctrine of promissory estoppel cannot be invoked
for enforcement of a promise made contrary to
law, because none can be compelled to act against
the statute. Thus, the Government or public
authority cannot be compelled to make a provision
which is contrary to law.”
(emphasis supplied)
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23. It could thus be seen that, this Court again
reiterated the position that where public interest
warrants, the principle of promissory estoppel cannot be
invoked. Observing the aforesaid, the said challenge, as
raised by the petitioner, came to be rejected.
24. In the case of Kanak Exports (supra), this Court
again while considering the challenge for withdrawal of
incentives to the exporters of some specified items held
that, the incentive scheme in question was in the nature
of concession or incentive which was a privilege of the
Central Government. It was for the Government to take a
decision to grant such a privilege or not. Grant of
exemption, concession or incentive and modification
thereof are the matters in the domain of public decisions
of the Government. It further reiterated that when the
withdrawal of such incentives was shown to have been done
in public interest, the courts would not tinker with the
policy decisions. This Court, after considering the
materials on record as a matter of fact, held that
withdrawal of exemption was in the public interest.
25. It could thus be seen that, it is more than well
settled that the exemption granted, even when the
notification granting exemption prescribes a particular
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period till which it is available, can be withdrawn by
the State, if it is found that such a withdrawal is in
the public interest. In such a case, the larger public
interest would outweigh the individual interest, if any.
In such a case, even the doctrine of promissory estoppel
would not come to the rescue of the persons claiming
exemptions and compel the State not to resile from its
promise, if the act of the State is found to be in public
interest to do so.
26. A judicial notice can be taken of the fact that
by various scientific studies on betel quid and
substitutes, tobacco and their substitutes, i.e., pan
masala with tobacco and without tobacco, these products
have been found to be one of the main causes for oral
cancer. A detailed study has been considered by three
Experts, namely, Urmila Nair, Helmut Bartsch and
Jagadeesan Nair in the Division of Toxicology and Cancer
Risk Factors, German Cancer Research Centre (DKFZ),
Heidelberg, Germany. The research paper is titled as
“Alert for an epidemic of oral cancer due to use of the
betel quid substitutes gutkha and pan masala: a review of
agents and causative mechanisms13”. After considering the
entire material in detail and considering the various
earlier studies, the paper observes thus:
13 Mutagenesis Vol. 19 No. 4
22
“Perspectives
Banning of gutkha and pan masala has been
strongly advocated by oncologists as a preventive
measure to reduce oral cavity cancers. Recently,
a number of States in India have banned the
manufacture and sale of both products and this
should reduce the incidence rate. Similar
regulations regarding other health-impairing
tobacco products which have been on the market
for centuries, together with cigarettes and bidis
(an indigenous smoking product), should also be
reinforced.
However, for those who are addicted to these
products or are already affected by premalignant
lesions, educational interventions to encourage
stopping the habit are essential. Additionally,
chemopreventive interventions are being explored.
Retinoids, NSAIDS and green tea are among the
promising agents (Garewal, 1994; IUSHNCC, 1997;
Papadimitrakopoulou and Hong, 1997; Lin et al.,
2002a). Although a large percentage of lesions
did respond to treatment, recurrence after
terminating the chemopreventive regime was also
observed (Sankaranarayanan et al., 1997), perhaps
due in part to continuation of the addictive
habit.
As with all cancers, early diagnosis is
important for successful treatment of oral
cancer, as its prognosis is still very poor.
There is, nowadays, a strong drive to apply
proteomics technology to molecular diagnosis of
cancer. Expression profiling of tumour tissues,
molecular classification of tumours and
identification of markers to allow early
detection, sensitive diagnosis and effective
treatment are now being explored for oral
cancers. Genes with significant differences in
expression levels between normal, dysplastic and
tumour samples have been reported and this should
help in better understanding the progression of
oral squamous cell carcinoma (Kuo et al., 2002;
Leethanakul et al., 2003).
DNA aneuploidy in oral leukoplakia in
Caucasian tobacco users has been found to signal
a very high risk for subsequent development of
oral squamous cell carcinomas and associated
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mortality (Sudbo and Reith, 2003; Sudbo et al.,
2004). A risk assessment model to predict
progression of premalignant lesions that includes
histology and a score combining chromosomal
polysomy, expression and loss of heterozygosity
on 3p or 9p has also been described (Lee et al.,
2000; Rosin et al., 2002). Once diagnosed, these
premalignant lesions could be treated at a much
earlier stage by chemo preventive agents,
surgery, chemotherapy and/or intense radiotherapy
to prevent new lesions and premalignant lesions
from progressing to invasive cancer.
Conclusions
Gutkha and pan masala have flooded the Indian
market as cheap and convenient BQ substitutes and
become popular across all age groups wherever
this habit is practised. There is sufficient
evidence that chewing of tobacco with lime, BQ
with tobacco, BQ without tobacco and areca nut
are carcinogenic in humans (IARC, 1985, 2004).
These evaluations in conjunction with the
available evidence on the BQ substitutes gutkha
and pan masala implicates them as potent
carcinogenic mixtures that can cause oral cancer.
Additionally, these products are addictive and
enhance the early appearance of OSF, especially
so in young users who could be more susceptible
to the disease. Although recently some curbs have
been put on the manufacture and sale of these
products, urgent action needs be taken to
permanently ban gutkha and pan masala, together
with the other well-established oral cancercausing tobacco products. Finally, as the
consequences of these habits are significant and
likely to intensify in the future, an emphasis on
education aimed at reducing or eliminating the
use of these products as well as home-made
preparations should be accelerated.”
27. Recently, the Department of Oral Medicines and
Radiology, Dental Institute, Rajendra Institute of
Medical Sciences, Ranchi has through its experts, namely,
Anjani Kumar Shukla, Tanya Khaitan, Prashant Gupta and
24
Shantala R. Naik conducted a study on the subject
“Smokeless Tobacco and Its Adverse Effects on
Hematological Parameters: A Cross-Sectional Study14”. The
study paper considered the consumption of smokeless
tobacco (SLT) in various forms in India such as pan
(betel quid) with tobacco, zarda, pan masala, khaini,
areca nut. After conducting an in-depth analysis, the
paper concludes and recommends as under”
“Conclusion and Recommendation
SLT use has severe adverse effects on
hematological parameters. The present study might
serve as an early diagnostic tool in any systemic
diseases and be helpful in spreading awareness on
the deleterious effect in the populace consuming
SLT. Timely intervention among students can
prevent the initial experimentations with tobacco
from developing into addiction in adulthood.
People should be counselled to avoid all habits
of tobacco and undergo nicotine replacement
therapy along with antioxidants. Knowledge and
awareness about systemic and oral ill effects of
tobacco should be spread through tobacco control
programs in the pursuit for a tobacco-free
world.”
28. It was sought to be argued on behalf of the
manufacturers of pan masala without tobacco, that the pan
masala without tobacco stands on a different pedestal
than the pan masala with tobacco. It was sought to be
argued that, pan masala without tobacco cannot be
considered to be hazardous to health. The Department of
Head and Neck Surgery, Tata Memorial Hospital, Mumbai
14 Advances in Preventive Medicine 2019
25
through its experts Garg A, Chaturvedi P. Mishra A. and
Datta S. had conducted a study on “A review on Harmful
Effects of Pan Masala15”. It is to be noted that this
study is of ‘pan masala without tobacco’. It will be
apposite to refer to the following observations of the
said report:
“Policy Issues Concerning Pan Masala
Pan masala use is rampant in India by all the
sections and age groups of the society. It has
emerged as a major cause of oral cancer in India.
National Family Health Survey-2 showed that 21%
of people over 15 years of age consumed PM or
tobacco. Study in the state of Tamil Nadu showed
that the age at which people start consuming
areca nut products ranges from 12 to 70 years.
58% of the subjects chewed the products more than
twice a day. Advertising tobacco products
including PM containing tobacco is banned in
India since May 1, 2004. To bypass this ban
tobacco companies are advertising PM ostensibly
without tobacco, heavily in all forms of media.
PM is surrogate for tobacco products as the money
spent on marketing, and advertising is many times
of the revenue generated from the sale of PM. In
Mumbai after the ban on PM and gutka the sale has
come down and the percentage of users quitting
and reducing the habit was 23.53% and 55.88%
respectively. The main reason of quitting and
reduction in consumption was non availability of
these products. In spite of the ban gutka was
still available but in different forms or at
increased cost. Strict law in the form of
Cigarettes and other Tobacco Products Act 2003
has been made in India, but the enforcement and
compliance is lax. There is a need for strong
enforcement and compliance of laws throughout the
country. The genotoxic, carcinogenic properties
and numerous other harmful effects of PM need
immediate and strict action by the government on
PM without tobacco as it has banned PM with
tobacco. The consumers should also be made aware
15 Indian Journal of Cancer (October-December 2015) Volume 52, Issue 4
26
of the harmful effects of PM as they are under a
false impression that it is not harmful.
“Conclusion
Pan masala is widely used across all the strata
of society and is freely available in many parts
of the country. It is carcinogenic, genotoxic,
and has harmful effects on the oral cavity,
liver, kidneys and reproductive organs.
Government action is immediately required to
restrict the consumption and to make the people
aware about its harmful effects.”
29. The study which has been conducted in 2004, found
that gutkha and pan masala have been one of the major
causes of oral cancer. The Oncologists as early as in
2004 had strongly advocated banning of gutkha and pan
masala. They further find that banning the manufacture
and sale of these products would reduce oral cancer
incidence rates. It is found that gutkha and pan masala
have flooded the Indian markets and become popular
amongst all age groups. It is observed that pan masala
with tobacco as well as without tobacco have been found
to be having a potent carcinogenic mixtures that can
cause oral cancer. It further found that, these products
are an addictive and enhance the early appearance of oral
sub-mucous fibrosis (OSMF). It is especially so in the
young users who could be more susceptible to the disease.
30. The report further finds that, in the National
Family Health Survey-2, it has been found that 21% of
27
people over 15 years of age consumed pan masala or
tobacco. The report finds that, though advertising
tobacco products including pan masala containing tobacco
is banned in India since 01.05.2004, to bypass this ban,
tobacco companies are advertising pan masala ostensibly
without tobacco, heavily in all forms of media. It has
been found that, after the ban on pan masala and gutkha,
the sale has come down. The 2016 report finds that, in
Mumbai, after the ban on pan masala and gutkha, the sale
has come down and the percentage of users quitting and
reducing the habit was 23.53% and 55.88% respectively.
31. It could thus be seen that, by a scientific
research conducted by Experts in the field, it has been
found that the consumption of pan masala with tobacco as
well as pan masala sans tobacco is hazardous to health.
It has further been found that, the percentage of
teenagers consuming the hazardous product was very high
and as such exposing a large chunk of young population of
this Country to the risk of oral cancer. Taking into
consideration this aspect, if the State has decided to
withdraw the exemption granted for manufacture of such
products, we fail to understand as to how it can be said
to be not in the public interest.
28
32. The Sikkim High Court has observed that the
appellant herein has been unable to establish any
overriding public interest, which would make the doctrine
of promissory estoppel inapplicable. It has further
observed that, the pan masala has not been declared as
hazardous to health by any notification or order of the
Government of India or the State Government. It found
that, no material or scientific report had been placed on
record to demonstrate that the pan masala is a health
hazard. We find that the reasoning arrived at by the
Sikkim High Court is totally erroneous.
33. Insofar as the Gauhati High Court is concerned,
the learned Single Judge by an elaborate reasoning had
found that the notifications impugned before it was in
the public interest and further observed that in view of
the overriding public interest, the doctrine of
promissory estoppel could not be invoked. Not only that,
but the learned Single Judge in the judgment has
specifically observed thus:
“Having regard to the background that had
preceded the Policy 2007 and the curtailment of
the benefits of exemption earlier granted by the
Policy 1997 through various instruments of law in
the form of Section 154 of the Finance Act 2003
read with Schedule 9 thereto as well as the
notifications under Section 5A of the Central
Excise Act and other related legislations it
29
would be in defiance of logic to conclude that
all these notwithstanding, with the specific
intention of excluding the industries engaged in
the manufacture of goods under Chapter 24 and pan
masala under Chapter 21 of the First Schedule to
the Tariff Act, 1985, these would still continue
to avail the benefits/incentives under the Policy
1997 only because the units concerned had
commenced commercial production on and from
31/3/2007.”
34. The learned Single Judge has also specifically
observed in his judgment that the vires of Section 154 of
the Finance Act, 2003 vide which the exemption granted to
the manufacturers of cigarette was rescinded with
retrospective effect, has been upheld by this Court in
the case of R.C. Tobacco (P) Ltd. and Another Vs. Union
of India and Another, reported in 2005(7)SCC 725. We are
surprised at the approach of the Appellate Bench of the
Gauhati High Court. It is pertinent to note that the
contention of the learned A.S.G. appearing on behalf of
the Union of India to the following effect have been
specifically recorded by the Judges of the Appellate
Bench of the High Court in paragraph 14 of the judgment,
which reads thus:
“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. vs. Union of India, (2005)7
SCC 725.”
30
35. The Appellate Bench of the High Court observed
that some of the notifications providing modalities for
exemption were issued subsequent to the enactment of
Section 154 of the Finance Act, 2003 and, therefore,
Section 154 of the Finance Act, 2003 has no relevance in
the said case. However, the Appellate Bench does not
find it necessary to even make a reference to the
judgment of this Court which was relied on by the learned
Single Judge while dismissing the writ petitions and
which is specifically put in service by the Union of
India. We are unable to appreciate as to how the
Appellate Bench of the Gauhati High Court finds that
withdrawal of exemption in respect of ‘pan masala with
tobacco’ is not in the public interest. The legislative
policy as reflected in Section 154 of the Finance Act was
to withdraw the exemption granted to the manufacturers of
cigarettes as well as pan masala with tobacco and that
too with retrospective effect. Apart from the fact that,
it is a common knowledge that tobacco is highly
hazardous, the legislative intent was also unambiguous.
In these circumstances, the finding of the High Court
that the withdrawal of exemption for tobacco products was
not in the public interest, to say the least is shocking.
We find that the approach of the Appellate Bench of the
High Court was totally unsustainable.
31
36. As already discussed hereinabove, we have no
hesitation to hold that the withdrawal of the exemption
to the pan masala with tobacco and pan masala sans
tobacco is in the larger public interest. As such, the
doctrine of promissory estoppel could not have been
invoked in the present matter. The State could not be
compelled to continue the exemption, though it was
satisfied that it was not in the public interest to do
so. The larger public interest would outweigh an
individual loss, if any. In that view of the matter we
find that the appeals deserve to be allowed.
Civil Appeal arising out of S.L.P.(C) No. 36926 of 2012:
37. The appeal is allowed. The judgment and order
passed by the High Court of Sikkim dated 11.05.2012 is
quashed and set aside.
38. No order as to costs.
Civil Appeal Nos. 2345 of 2017 and 2346 of 2017:
39. The appeals are allowed. The judgments and orders
passed by the Appellate Bench of the Gauhati High Court
dated 20.04.2016 and 25.05.2016 are quashed and set
aside. The Order passed by the learned Single Judge dated
10.12.2010 dismissing the writ petitions is upheld.
32
40. No order as to costs.
...................J.
[ARUN MISHRA]
...................J.
[M. R. SHAH]
...................J.
[B.R. GAVAI]
NEW DELHI;
SEPTEMBER 19, 2019.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7432 OF 2019
(Arising out of S.L.P.(C) No. 36926 of 2012)
UNION OF INDIA & ORS. .... APPELLANT(S)
VERSUS
M/s UNICORN INDUSTRIES .... RESPONDENT(S)
WITH
CIVIL APPEAL No. 2345 OF 2017 and
CIVIL APPEAL No. 2346 OF 2017
J U D G M E N T
B.R. GAVAI, J.
Leave granted in S.L.P.(C) No. 36926 of 2012.
2. The question of law that arises for consideration
in these appeals is, ‘as to whether, by invoking the
doctrine of promissory estoppel, can the Union of India
be estopped from withdrawing the exemption from payment
of Excise Duty in respect of certain products, which
exemption is granted by an earlier notification; when the
2
Union of India finds that such a withdrawal is necessary
in the public interest.
3. Since the factual position as well as the
question of law arising in the present three appeals are
common, they are heard together and disposed of by this
common judgment. The appellant, Union of India, in
exercise of powers conferred by sub-section (1) of
Section 5A of the Central Excise Act, 1944 (1 of 1994)
(hereinafter referred to as the “Central Excise Act”)
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 3 of the
Additional Duties of Excise (Textiles and Textile
Articles) Act, 1978 (40 of 1978), being satisfied that it
is necessary in the public interest, by Notification No.
71 of 2003 dated 09.09.2003, exempted the goods specified
in the First Schedule and the Second Schedule to the
Central Excise Tariff Act, 1985 (5 of 1986) other than
the goods specified in Annexure-I to the said
Notification, from the payment of duties under the said
statutes. The notification provided that so much of the
duty of excise or additional duty of excise, as the case
may be, leviable thereon under any of the said Acts as
was equivalent to the amount of duty paid by the
3
manufacturer of the said goods, other than the amount of
duty paid by utilisation of CENVAT credit under the
CENVAT Credit Rules, 2002, was exempted. This exemption
was available to the units located in Industrial Growth
Centre or Industrial Infrastructure Development Centre or
Export Promotion Industrial Park or Industrial Estate or
Industrial Area or Commercial Estate or Scheme Area, as
the case may be, in the State of Sikkim, as specified in
Annexure-II appended to the said notification. A
procedure was also prescribed under the said notification
for availing the benefit of exemption. Annexure-I thereto
provides the list of the products which were not entitled
for exemption. Clause 1 of the said Annexure reads thus:
“1. Tobacco and Tobacco products including
Cigarettes/ Cigars/ Gutkha”
Similar notifications were issued by the Union of
India being Notification Nos. 32 of 1999-CE and 33 of
1999-CE dated 08.07.1999 insofar as the State of Assam is
concerned.
4. By Notification No. 21 of 2007-CE dated
25.04.2007, the earlier notifications issued by it were
amended. The effect of the amendment was that the product
‘pan masala’ falling under Chapter 21 of the First
4
Schedule of the Central Excise Tariff Act, 1985, the
goods falling under Chapter 24 of said First Schedule,
i.e., tobacco and manufactured tobacco substitutes and
plastic carry bags of less than 20 microns were included
in the negative list and as such were no longer entitled
for exemption from the excise duty. Being aggrieved by
the said notification, the respondent, namely, Unicorn
Industries in the Civil Appeal arising out of Special
Leave Petition (C) No. 36926 of 2012, approached the High
Court of Sikkim by way of Writ Petition (C) No. 22 of
2007. The High Court of Sikkim vide its judgment and
order dated 11.05.2012 allowed the writ petition and held
that the petitioner therein was entitled to exemption
from payment of excise duty on the manufacture of pan
masala from its unit situated in the State of Sikkim for
a period of 10 years from the date of commencement of the
commercial production, i.e., 27.06.2006.
5. Similarly, the respondent in Civil Appeal No.
2346 of 2017, namely, M/s Dharampal Satyapal Ltd., which
was a manufacturer of pan masala with tobacco and other
tobacco products, approached the Gauhati High Court by
way of a petition bearing No. PW(C) 749 of 2010. The said
petition was with regard to withdrawal of exemption in
respect of pan masala with tobacco. The Single Judge of
5
the Gauhati High Court vide judgment and order dated
10.12.2010 found no substance in the petition and as such
dismissed the petition. Being aggrieved thereby, the said
respondent filed Writ Appeal No. 81 of 2011 before the
Appellate Bench of Gauhati High Court. Vide the judgment
and order dated 20.04.2016, the Appellate Bench of the
High Court allowed the appeal; set aside the judgment and
order passed by the Single Judge dated 10.12.2010 and
quashed Notification No. 11 of 2007-CE dated 01.03.2007.
It further directed the Investment Appraisal Committee to
give an opportunity of hearing to the appellant before it
(respondent herein) so that it can prove the amount it
had actually invested in the specified items for availing
the benefits under the earlier notifications and further
directed that if the appellant proves that it had
actually invested the amount, the respondent authorities
shall refund to the appellant so much of the excise duty
to which the appellant therein would be entitled as per
the earlier notifications.
6. The respondent in Civil Appeal No. 2345 of 2017,
namely, M/s Dharampal Satyapal Ltd., had also filed
another petition being Writ Petition (C) No. 749 of 2010
insofar as its product ‘pan masala without tobacco’, is
concerned. The same was also dismissed by the learned
6
Single Judge of the Gauhati High Court vide the common
judgment and order dated 10.12.2010. It appears that the
appeal arising from the said petition being Writ Appeal
No. 223 of 2011 was separately heard by another Appellate
Bench of the Gauhati High Court. However, noticing that
the writ appeal arising out of the order of the Single
Judge regarding the product of the appellant therein,
i.e., ‘pan masala containing tobacco’ was already allowed
by the Appellate Bench of the High Court by Order dated
20.04.2016, the said writ appeal was also allowed, by the
judgment and order dated 25.05.2016 thereby setting aside
the Order passed by the learned Single Judge in Writ
Petition (C) No. 749 of 2010 so also the Notification
dated 25.04.2007. The respondent therein was directed to
refund the excise duty component to the appellant as is
admissible under the law.
7. Being aggrieved by the aforesaid judgments and
orders, one passed by the Sikkim High Court in the writ
petition and the other two passed by the Gauhati High
Court in the writ appeals, the Union of India is before
this Court.
8. Mr. Dhruv Agrawal, learned senior counsel
appearing on behalf of the appellants, submits that both,
7
the Sikkim High Court as well as the Appellate Benches of
the Gauhati High Court have grossly erred in allowing the
writ petition and the writ appeals of the assessees. It
is submitted that, though the Union of India had
specifically contended before both the High Courts that
the 2007 Notifications were issued in the public
interest, the same has not been considered. It is
submitted that the Union of India, in exercise of its
delegated powers, is always empowered to modify and
withdraw the exemptions granted by it under the earlier
notification(s). It is submitted that the Union of India,
taking into consideration the public interest, that the
consumption of pan masala with tobacco or pan masala
without tobacco is hazardous to the human health and,
therefore, for curbing its consumption, had issued the
2007 Notifications thereby including pan masala in
Chapter 21 and all products contained in Chapter 24,
i.e., tobacco and manufactured tobacco substitutes, in
the negative list. It is submitted that, after taking
into consideration that the 2007 Notification was issued
in public interest, the Sikkim High Court ought not to
have interfered with it. He further submitted that the
reasoning given by the Sikkim High Court that pan masala
is not hazardous and, therefore, the 2007 Notification
cannot be said to be in the public interest is totally
8
erroneous. It is further submitted that while doing so,
the Sikkim High Court has assumed the role of an expert
in the field and, therefore, travelled beyond its
jurisdiction.
9. Insofar as the Gauhati High Court is concerned,
the learned senior counsel submitted that the learned
Single Judge of the Gauhati High Court had rightly
dismissed the writ petitions, finding that in the
conflict between the interest of an individual and the
public interest, individual interest should give way to
the larger public interest. It is submitted that, the
Appellate Bench of the Gauhati High Court in its judgment
dated 20.04.2016 has grossly erred in interfering with
the reasoned order passed by the learned Single Judge. It
is submitted that, in the said appeal, the product that
fell for consideration before the Appellate Bench of the
High Court was Zarda scented tobacco and pan masala
containing tobacco. It is submitted that, the products
containing tobacco are indisputably hazardous to health
and, therefore, the Notification which withdraws
exemption granted for the manufacture of the said
products is undoubtedly in the larger public interest.
However, overlooking this aspect, the appeals have been
allowed. It is submitted that insofar as the other appeal
9
is concerned, the another Appellate Bench has only relied
upon the judgment by the earlier Appellate Bench and has
observed that the only distinction in both the matters
was that in the earlier matter, the issue was with regard
to pan masala containing tobacco and in the matter before
them, the issue was with regard to pan masala without
tobacco and with these observation allowed the appeal.
10. The learned senior counsel relied on the
following judgments of this Court in the cases of Kasinka
Trading vs. Union of India1, Darshan Oils (P) Ltd. vs.
Union of India2, STO vs. Shree Durga Oil Mills3, Shrijee
Sales Corpn. vs. Union of India4, State of Rajasthan vs.
Mahaveer Oil Industries5, Shree Sidhbali Steels Ltd. vs.
State of U.P.6, DG of Foreign Trade vs. Kanak Exports7,
Pappu Sweets and Biscuits vs. Commr. Of Trade Tax, U.P.8
and Commr. of Customs vs. Dilip Kumar & Co.9,.
11. Shri Balbir Singh and Shri Nakul Dewan, learned
senior counsel appearing on behalf of the respondents,
have supported the impugned judgments and orders. It is
1 (1995) 1 SCC 274
2 (1995) 1 SCC 345
3 (1998) 1 SCC 572
4 (1997) 3 SCC 398
5 (1999) 4 SCC 357
6 (2011) 3 SCC 193
7 (2016) 2 SCC 226
8 (1998) 7 SCC 228
9 (2018) 9 SCC 1
10
submitted that, the Sikkim High Court as well as the
Appellate Benches of the Gauhati High Court have rightly
relied upon the doctrine of promissory estoppel and
allowed the appeals. It is submitted that, it is only on
account of the representation given by the Union of India
and the State Governments that the industries established
in the notified areas of Sikkim as well as Assam would be
entitled for 100% exemption from central excise, the writ
petitioners before the High Court had established the
industries in such remote areas. It is submitted that,
the exemption notifications were issued in view of the
industrial policy of the Union of India as well as the
State Governments that on account of backwardness in
these areas, the industrialisation in these areas should
be promoted so that the economic development takes place.
It is submitted that, only on the assurance of the
Central as well as the State Governments, the writ
petitioners have invested huge amount and, as such, now
the Union of India could not be permitted in law to
resile from the assurance given by them to the writ
petitioners. It is submitted that, considering these
principles, the Sikkim High Court and the Appellate Bench
of the Gauhati High Court have granted relief to the writ
petitioners. It is submitted that, this Court has
consistently held that, if a party changes its position
11
to its detriment, on account of a promise given by the
other party, the other party cannot be permitted to
resile from such a promise. It is submitted that the
doctrine of promissory estoppel is equally applicable to
the State and its functionaries. Reliance in this respect
is placed on the following judgments of this Court. M/s
Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar
Pradesh and Ors.10, Union of India & Ors. Vs. Godfrey
Philips India Ltd. & Ors.11 and Pawan Alloys & Casting
Pvt. Ltd. vs. U.P. State Electricity Board & Ors.12.
12. The issue raised in these appeals is no more res
integra. This Court in a catena of decisions has
considered the issue with regard to inapplicability of
the doctrine of promissory estoppel, when the larger
public interest demands so. We will refer, in brief, to
the earlier judgments of this Court.
13. In the case of Kasinka Trading (supra), this
Court was considering the case of the appellant, who were
manufacturing certain products, requiring PVC resin as
one of the raw materials for its manufacturing process.
By Notification No. 66 dated 15.03.1979 issued under
Section 25 of the Customs Act, 1962 which is pari materia
10 (1979) 2 SCC 409
11 (1985) 4 SCC 369
12 (1997) 7 SCC 251
12
with Section 5A of the Central Excise Act, the PVC resin
was exempted from basic import duty. The exemption was to
be effective till 31.03.1981. However, by Notification
No. 205 dated 16.10.1980 issued under Section 25 of the
Customs Act, the exemption granted earlier came to be
withdrawn. A challenge similar to the one which is raised
herein was raised before this Court. This Court observed
thus:
“12. It has been settled by this Court that
the doctrine of promissory estoppel is
applicable against the Government also
particularly where it is necessary to prevent
fraud or manifest injustice. The doctrine,
however, cannot be pressed into aid to compel
the Government or the 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”.
There is preponderance of judicial opinion that
to invoke the doctrine of promissory estoppel
clear, sound and positive foundation must be
laid in the petition itself by the party
invoking the doctrine and that bald
expressions, without any supporting material,
to the effect that the doctrine is attracted
because the party invoking the doctrine has
altered its position relying on the assurance
of the Government would not be sufficient to
press into aid the doctrine. In our opinion,
the doctrine of promissory estoppel cannot be
invoked in the abstract and the courts are
bound to consider all aspects including the
results sought to be achieved and the public
good at large, because while considering the
applicability of the doctrine, the courts have
to do equity and the fundamental principles of
equity must for ever be present to the mind of
the court, while considering the applicability
of the doctrine. The doctrine must yield when
13
the equity so demands if it can be shown having
regard to the facts and circumstances of the
case that it would be inequitable to hold the
Government or the public authority to its
promise, assurance or representation.”
(emphasis supplied)
14. It could thus be seen that, this Court has
clearly held that the doctrine of promissory estoppel
cannot be invoked in the abstract and the courts are
bound to see all aspects including the objective to be
achieved and the public good at large. It has been held
that while considering the applicability of the doctrine,
the courts have to do equity and the fundamental
principle of equity must forever be present in the mind
of the Court while considering the applicability of the
doctrine. It has been held that the doctrine of
promissory estoppel must yield when the equity so demands
and when it can be shown having regard to the facts and
circumstances of the case, that it would be inequitable
to hold the Government or the public authority to its
promise, assurance or representation. After considering
the earlier judgments on the issue, which have been
heavily relied upon by the assesses, this Court has
observed thus:
“21. The power to grant exemption from
payment of duty, additional duty etc. under the
Act, as already noticed, flows from the
14
provisions of Section 25(1) of the Act. The power
to exempt includes the power to modify or
withdraw the same. The liability to pay customs
duty or additional duty under the Act arises when
the taxable event occurs. They are then subject
to the payment of duty as prevalent on the date
of the entry of the goods. An exemption
notification issued under Section 25 of the Act
had the effect of suspending the collection of
customs duty. It does not make items which are
subject to levy of customs duty etc. as items not
leviable to such duty. It only suspends the levy
and collection of customs duty, etc., wholly or
partially and subject to such conditions as may
be laid down in the notification by the
Government in “public interest”. Such an
exemption by its very nature is susceptible of
being revoked or modified or subjected to other
conditions. The supersession or revocation of an
exemption notification in the “public interest”
is an exercise of the statutory power of the
State under the law itself as is obvious from the
language of Section 25 of the Act. Under the
General Clauses Act an authority which has the
power to issue a notification has the undoubted
power to rescind or modify the notification in a
like manner.”
(emphasis supplied)
15. It could thus be seen that, it has been held by
this Court that an exemption notification does not make
the items which are subject to levy of customs duty etc.
as items not leviable to such duty. It only suspends the
levy and collection of customs duty etc. subject to such
conditions as may be laid down in the “public interest”.
It has further been held that, such an exemption by its
very nature is susceptible of being revoked or modified
or subjected to other conditions. It has been held that
the supersession or revocation of an exemption
15
notification in the public interest is an exercise of the
statutory power by the State under the law itself. It has
further been held that under the General Clauses Act an
authority which has the power to issue a notification has
the undoubted power to rescind or modify the notification
in a like manner.
16. This Court, after considering the objections that
the exemption could not be withdrawn prior to the date
prescribed in the notification granting exemption has
observed thus:
“23. The appellants appear to be under the
impression that even if, in the altered market
conditions the continuance of the exemption may
not have been justified, yet, Government was
bound to continue it to give extra profit to
them. That certainly was not the object with
which the notification had been issued. The
withdrawal of exemption “in public interest” is a
matter of policy and the courts would not bind
the Government to its policy decisions for all
times to come, irrespective of the satisfaction
of the Government that a change in the policy was
necessary in the “public interest”. The courts,
do not interfere with the fiscal policy where the
Government acts in “public interest” and neither
any fraud or lack of bona fides is alleged much
less established. The Government has to be left
free to determine the priorities in the matter of
utilisation of finances and to act in the public
interest while issuing or modifying or
withdrawing an exemption notification under
Section 25(1) of the Act.”
(emphasis supplied)
16
17. It has been observed, that the withdrawal of
exemption in public interest is a matter of policy and
the courts would not bind the Government to its policy
decisions for all times to come, irrespective of the
satisfaction of the Government that a change in the
policy was necessary in the public interest. It has been
held that, where the Government acts in public interest
and neither any fraud or lack of bona fides is alleged
much less established, it would not be appropriate for
this Court to interfere with the same. Ultimately, this
Court came to the conclusion that the withdrawal of the
exemption was in the public interest and, therefore,
refused to interfere with the order of the Delhi High
Court dismissing the petitions.
18. In the case of Shree Durga Oil Mills (supra), the
Government of Orissa had withdrawn the sales tax
exemption which was granted earlier under the Orissa
Sales Tax Act, 1947. Considering a similar challenge,
while reversing the judgment and order of the High Court,
this Court observed thus:
“21. Moreover withdrawal of notification was
done in public interest. The Court will not
interfere with any action taken by the Government
in public interest. Public interest must override
any consideration of private loss or gain.
17
23. In the instant case, it has been stated
on behalf of the State that various notifications
granting sales tax exemptions to the dealers
resulted in severe resource crunch. On
reconsideration of the financial position, it was
decided to limit the scope of the earlier
exemption notifications issued under Section 6 of
the Orissa Sales Tax Act. Because of this new
perception of the economic scenario of the State,
the scope of the earlier notifications had to be
restricted. They were first abrogated altogether
on 20-5-1977. Thereafter, it was decided to grant
exemption at a limited scale.
24. In our opinion, the plea of change of
policy trade on the basis of resource crunch
should have been sufficient for dismissing the
respondent's case based on the doctrine of
promissory estoppel. Public interest demanded
modification of the earlier IPR.”
19. It could thus be seen that, it has been held that
when withdrawal of the exemption is in public interest,
the public interest must override any consideration of
private loss or gain. In the said case, the change in
policy and withdrawal of the exemption on the ground of
severe resource crunch have been found to be a valid
ground and to be in public interest.
20. A similar issue came up for consideration before
the Bench consisting three Judges of this Court in the
case of Shrijee Sales Corporation (supra). The
notification which came up for consideration was similar
with the notifications that fell for consideration in the
case of Kasinka Trading (supra). While considering the
18
argument that when the notification prescribes a period
during which the exemption would be available, such an
exemption cannot be withdrawn till the end of the period
prescribed, this Court observed thus:
“7. The next question is whether the fact
that the Notification No. 66 mentioned the period
during which it was to remain in force, would
make any difference to the situation. In other
words, could it be said that an exemption
notified without specifying the period within
which the exemption would remain in force, would
be withdrawn in public interest but not the one
in which a period has been so specified? 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. 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 [Motilal Padampat Sugar Mills
Co. Ltd. v. State of U.P., (1979) 2 SCC 409, 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.”
(emphasis supplied)
21. It could thus be seen that this Court observed
that once public interest is accepted as a superior
equity which can override an individual equity, the same
principle should be applicable in such cases where the
period is prescribed.
19
22. The another three Judges Bench of this Court in
the case of Mahavir Oil Industries (supra) has taken a
similar view. In the case of Shree Sidhbali Steels Ltd.
(supra), this Court was considering the question with
regard to validity of the notification which withdrew
33.33% of the hill development rebate, on the total
amount of electricity bill, granted under the earlier
notification. This Court while considering the similar
challenge observed thus:
“33. Normally, the doctrine of promissory
estoppel is being applied against the Government
and defence based on executive necessity would
not be accepted by the court. However, if it can
be shown by the Government that having regard to
the facts as they have subsequently transpired,
it would be inequitable to hold the Government to
the promise made by it, the court would not raise
an equity in favour of the promisee and enforce
the promise against the Government. Where public
interest warrants, the principles of promissory
estoppel cannot be invoked. The Government can
change the policy in public interest. However, it
is well settled that taking cue from this
doctrine, the authority cannot be compelled to do
something which is not allowed by law or
prohibited by law. There is no promissory
estoppel against the settled proposition of law.
Doctrine of promissory estoppel cannot be invoked
for enforcement of a promise made contrary to
law, because none can be compelled to act against
the statute. Thus, the Government or public
authority cannot be compelled to make a provision
which is contrary to law.”
(emphasis supplied)
20
23. It could thus be seen that, this Court again
reiterated the position that where public interest
warrants, the principle of promissory estoppel cannot be
invoked. Observing the aforesaid, the said challenge, as
raised by the petitioner, came to be rejected.
24. In the case of Kanak Exports (supra), this Court
again while considering the challenge for withdrawal of
incentives to the exporters of some specified items held
that, the incentive scheme in question was in the nature
of concession or incentive which was a privilege of the
Central Government. It was for the Government to take a
decision to grant such a privilege or not. Grant of
exemption, concession or incentive and modification
thereof are the matters in the domain of public decisions
of the Government. It further reiterated that when the
withdrawal of such incentives was shown to have been done
in public interest, the courts would not tinker with the
policy decisions. This Court, after considering the
materials on record as a matter of fact, held that
withdrawal of exemption was in the public interest.
25. It could thus be seen that, it is more than well
settled that the exemption granted, even when the
notification granting exemption prescribes a particular
21
period till which it is available, can be withdrawn by
the State, if it is found that such a withdrawal is in
the public interest. In such a case, the larger public
interest would outweigh the individual interest, if any.
In such a case, even the doctrine of promissory estoppel
would not come to the rescue of the persons claiming
exemptions and compel the State not to resile from its
promise, if the act of the State is found to be in public
interest to do so.
26. A judicial notice can be taken of the fact that
by various scientific studies on betel quid and
substitutes, tobacco and their substitutes, i.e., pan
masala with tobacco and without tobacco, these products
have been found to be one of the main causes for oral
cancer. A detailed study has been considered by three
Experts, namely, Urmila Nair, Helmut Bartsch and
Jagadeesan Nair in the Division of Toxicology and Cancer
Risk Factors, German Cancer Research Centre (DKFZ),
Heidelberg, Germany. The research paper is titled as
“Alert for an epidemic of oral cancer due to use of the
betel quid substitutes gutkha and pan masala: a review of
agents and causative mechanisms13”. After considering the
entire material in detail and considering the various
earlier studies, the paper observes thus:
13 Mutagenesis Vol. 19 No. 4
22
“Perspectives
Banning of gutkha and pan masala has been
strongly advocated by oncologists as a preventive
measure to reduce oral cavity cancers. Recently,
a number of States in India have banned the
manufacture and sale of both products and this
should reduce the incidence rate. Similar
regulations regarding other health-impairing
tobacco products which have been on the market
for centuries, together with cigarettes and bidis
(an indigenous smoking product), should also be
reinforced.
However, for those who are addicted to these
products or are already affected by premalignant
lesions, educational interventions to encourage
stopping the habit are essential. Additionally,
chemopreventive interventions are being explored.
Retinoids, NSAIDS and green tea are among the
promising agents (Garewal, 1994; IUSHNCC, 1997;
Papadimitrakopoulou and Hong, 1997; Lin et al.,
2002a). Although a large percentage of lesions
did respond to treatment, recurrence after
terminating the chemopreventive regime was also
observed (Sankaranarayanan et al., 1997), perhaps
due in part to continuation of the addictive
habit.
As with all cancers, early diagnosis is
important for successful treatment of oral
cancer, as its prognosis is still very poor.
There is, nowadays, a strong drive to apply
proteomics technology to molecular diagnosis of
cancer. Expression profiling of tumour tissues,
molecular classification of tumours and
identification of markers to allow early
detection, sensitive diagnosis and effective
treatment are now being explored for oral
cancers. Genes with significant differences in
expression levels between normal, dysplastic and
tumour samples have been reported and this should
help in better understanding the progression of
oral squamous cell carcinoma (Kuo et al., 2002;
Leethanakul et al., 2003).
DNA aneuploidy in oral leukoplakia in
Caucasian tobacco users has been found to signal
a very high risk for subsequent development of
oral squamous cell carcinomas and associated
23
mortality (Sudbo and Reith, 2003; Sudbo et al.,
2004). A risk assessment model to predict
progression of premalignant lesions that includes
histology and a score combining chromosomal
polysomy, expression and loss of heterozygosity
on 3p or 9p has also been described (Lee et al.,
2000; Rosin et al., 2002). Once diagnosed, these
premalignant lesions could be treated at a much
earlier stage by chemo preventive agents,
surgery, chemotherapy and/or intense radiotherapy
to prevent new lesions and premalignant lesions
from progressing to invasive cancer.
Conclusions
Gutkha and pan masala have flooded the Indian
market as cheap and convenient BQ substitutes and
become popular across all age groups wherever
this habit is practised. There is sufficient
evidence that chewing of tobacco with lime, BQ
with tobacco, BQ without tobacco and areca nut
are carcinogenic in humans (IARC, 1985, 2004).
These evaluations in conjunction with the
available evidence on the BQ substitutes gutkha
and pan masala implicates them as potent
carcinogenic mixtures that can cause oral cancer.
Additionally, these products are addictive and
enhance the early appearance of OSF, especially
so in young users who could be more susceptible
to the disease. Although recently some curbs have
been put on the manufacture and sale of these
products, urgent action needs be taken to
permanently ban gutkha and pan masala, together
with the other well-established oral cancercausing tobacco products. Finally, as the
consequences of these habits are significant and
likely to intensify in the future, an emphasis on
education aimed at reducing or eliminating the
use of these products as well as home-made
preparations should be accelerated.”
27. Recently, the Department of Oral Medicines and
Radiology, Dental Institute, Rajendra Institute of
Medical Sciences, Ranchi has through its experts, namely,
Anjani Kumar Shukla, Tanya Khaitan, Prashant Gupta and
24
Shantala R. Naik conducted a study on the subject
“Smokeless Tobacco and Its Adverse Effects on
Hematological Parameters: A Cross-Sectional Study14”. The
study paper considered the consumption of smokeless
tobacco (SLT) in various forms in India such as pan
(betel quid) with tobacco, zarda, pan masala, khaini,
areca nut. After conducting an in-depth analysis, the
paper concludes and recommends as under”
“Conclusion and Recommendation
SLT use has severe adverse effects on
hematological parameters. The present study might
serve as an early diagnostic tool in any systemic
diseases and be helpful in spreading awareness on
the deleterious effect in the populace consuming
SLT. Timely intervention among students can
prevent the initial experimentations with tobacco
from developing into addiction in adulthood.
People should be counselled to avoid all habits
of tobacco and undergo nicotine replacement
therapy along with antioxidants. Knowledge and
awareness about systemic and oral ill effects of
tobacco should be spread through tobacco control
programs in the pursuit for a tobacco-free
world.”
28. It was sought to be argued on behalf of the
manufacturers of pan masala without tobacco, that the pan
masala without tobacco stands on a different pedestal
than the pan masala with tobacco. It was sought to be
argued that, pan masala without tobacco cannot be
considered to be hazardous to health. The Department of
Head and Neck Surgery, Tata Memorial Hospital, Mumbai
14 Advances in Preventive Medicine 2019
25
through its experts Garg A, Chaturvedi P. Mishra A. and
Datta S. had conducted a study on “A review on Harmful
Effects of Pan Masala15”. It is to be noted that this
study is of ‘pan masala without tobacco’. It will be
apposite to refer to the following observations of the
said report:
“Policy Issues Concerning Pan Masala
Pan masala use is rampant in India by all the
sections and age groups of the society. It has
emerged as a major cause of oral cancer in India.
National Family Health Survey-2 showed that 21%
of people over 15 years of age consumed PM or
tobacco. Study in the state of Tamil Nadu showed
that the age at which people start consuming
areca nut products ranges from 12 to 70 years.
58% of the subjects chewed the products more than
twice a day. Advertising tobacco products
including PM containing tobacco is banned in
India since May 1, 2004. To bypass this ban
tobacco companies are advertising PM ostensibly
without tobacco, heavily in all forms of media.
PM is surrogate for tobacco products as the money
spent on marketing, and advertising is many times
of the revenue generated from the sale of PM. In
Mumbai after the ban on PM and gutka the sale has
come down and the percentage of users quitting
and reducing the habit was 23.53% and 55.88%
respectively. The main reason of quitting and
reduction in consumption was non availability of
these products. In spite of the ban gutka was
still available but in different forms or at
increased cost. Strict law in the form of
Cigarettes and other Tobacco Products Act 2003
has been made in India, but the enforcement and
compliance is lax. There is a need for strong
enforcement and compliance of laws throughout the
country. The genotoxic, carcinogenic properties
and numerous other harmful effects of PM need
immediate and strict action by the government on
PM without tobacco as it has banned PM with
tobacco. The consumers should also be made aware
15 Indian Journal of Cancer (October-December 2015) Volume 52, Issue 4
26
of the harmful effects of PM as they are under a
false impression that it is not harmful.
“Conclusion
Pan masala is widely used across all the strata
of society and is freely available in many parts
of the country. It is carcinogenic, genotoxic,
and has harmful effects on the oral cavity,
liver, kidneys and reproductive organs.
Government action is immediately required to
restrict the consumption and to make the people
aware about its harmful effects.”
29. The study which has been conducted in 2004, found
that gutkha and pan masala have been one of the major
causes of oral cancer. The Oncologists as early as in
2004 had strongly advocated banning of gutkha and pan
masala. They further find that banning the manufacture
and sale of these products would reduce oral cancer
incidence rates. It is found that gutkha and pan masala
have flooded the Indian markets and become popular
amongst all age groups. It is observed that pan masala
with tobacco as well as without tobacco have been found
to be having a potent carcinogenic mixtures that can
cause oral cancer. It further found that, these products
are an addictive and enhance the early appearance of oral
sub-mucous fibrosis (OSMF). It is especially so in the
young users who could be more susceptible to the disease.
30. The report further finds that, in the National
Family Health Survey-2, it has been found that 21% of
27
people over 15 years of age consumed pan masala or
tobacco. The report finds that, though advertising
tobacco products including pan masala containing tobacco
is banned in India since 01.05.2004, to bypass this ban,
tobacco companies are advertising pan masala ostensibly
without tobacco, heavily in all forms of media. It has
been found that, after the ban on pan masala and gutkha,
the sale has come down. The 2016 report finds that, in
Mumbai, after the ban on pan masala and gutkha, the sale
has come down and the percentage of users quitting and
reducing the habit was 23.53% and 55.88% respectively.
31. It could thus be seen that, by a scientific
research conducted by Experts in the field, it has been
found that the consumption of pan masala with tobacco as
well as pan masala sans tobacco is hazardous to health.
It has further been found that, the percentage of
teenagers consuming the hazardous product was very high
and as such exposing a large chunk of young population of
this Country to the risk of oral cancer. Taking into
consideration this aspect, if the State has decided to
withdraw the exemption granted for manufacture of such
products, we fail to understand as to how it can be said
to be not in the public interest.
28
32. The Sikkim High Court has observed that the
appellant herein has been unable to establish any
overriding public interest, which would make the doctrine
of promissory estoppel inapplicable. It has further
observed that, the pan masala has not been declared as
hazardous to health by any notification or order of the
Government of India or the State Government. It found
that, no material or scientific report had been placed on
record to demonstrate that the pan masala is a health
hazard. We find that the reasoning arrived at by the
Sikkim High Court is totally erroneous.
33. Insofar as the Gauhati High Court is concerned,
the learned Single Judge by an elaborate reasoning had
found that the notifications impugned before it was in
the public interest and further observed that in view of
the overriding public interest, the doctrine of
promissory estoppel could not be invoked. Not only that,
but the learned Single Judge in the judgment has
specifically observed thus:
“Having regard to the background that had
preceded the Policy 2007 and the curtailment of
the benefits of exemption earlier granted by the
Policy 1997 through various instruments of law in
the form of Section 154 of the Finance Act 2003
read with Schedule 9 thereto as well as the
notifications under Section 5A of the Central
Excise Act and other related legislations it
29
would be in defiance of logic to conclude that
all these notwithstanding, with the specific
intention of excluding the industries engaged in
the manufacture of goods under Chapter 24 and pan
masala under Chapter 21 of the First Schedule to
the Tariff Act, 1985, these would still continue
to avail the benefits/incentives under the Policy
1997 only because the units concerned had
commenced commercial production on and from
31/3/2007.”
34. The learned Single Judge has also specifically
observed in his judgment that the vires of Section 154 of
the Finance Act, 2003 vide which the exemption granted to
the manufacturers of cigarette was rescinded with
retrospective effect, has been upheld by this Court in
the case of R.C. Tobacco (P) Ltd. and Another Vs. Union
of India and Another, reported in 2005(7)SCC 725. We are
surprised at the approach of the Appellate Bench of the
Gauhati High Court. It is pertinent to note that the
contention of the learned A.S.G. appearing on behalf of
the Union of India to the following effect have been
specifically recorded by the Judges of the Appellate
Bench of the High Court in paragraph 14 of the judgment,
which reads thus:
“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. vs. Union of India, (2005)7
SCC 725.”
30
35. The Appellate Bench of the High Court observed
that some of the notifications providing modalities for
exemption were issued subsequent to the enactment of
Section 154 of the Finance Act, 2003 and, therefore,
Section 154 of the Finance Act, 2003 has no relevance in
the said case. However, the Appellate Bench does not
find it necessary to even make a reference to the
judgment of this Court which was relied on by the learned
Single Judge while dismissing the writ petitions and
which is specifically put in service by the Union of
India. We are unable to appreciate as to how the
Appellate Bench of the Gauhati High Court finds that
withdrawal of exemption in respect of ‘pan masala with
tobacco’ is not in the public interest. The legislative
policy as reflected in Section 154 of the Finance Act was
to withdraw the exemption granted to the manufacturers of
cigarettes as well as pan masala with tobacco and that
too with retrospective effect. Apart from the fact that,
it is a common knowledge that tobacco is highly
hazardous, the legislative intent was also unambiguous.
In these circumstances, the finding of the High Court
that the withdrawal of exemption for tobacco products was
not in the public interest, to say the least is shocking.
We find that the approach of the Appellate Bench of the
High Court was totally unsustainable.
31
36. As already discussed hereinabove, we have no
hesitation to hold that the withdrawal of the exemption
to the pan masala with tobacco and pan masala sans
tobacco is in the larger public interest. As such, the
doctrine of promissory estoppel could not have been
invoked in the present matter. The State could not be
compelled to continue the exemption, though it was
satisfied that it was not in the public interest to do
so. The larger public interest would outweigh an
individual loss, if any. In that view of the matter we
find that the appeals deserve to be allowed.
Civil Appeal arising out of S.L.P.(C) No. 36926 of 2012:
37. The appeal is allowed. The judgment and order
passed by the High Court of Sikkim dated 11.05.2012 is
quashed and set aside.
38. No order as to costs.
Civil Appeal Nos. 2345 of 2017 and 2346 of 2017:
39. The appeals are allowed. The judgments and orders
passed by the Appellate Bench of the Gauhati High Court
dated 20.04.2016 and 25.05.2016 are quashed and set
aside. The Order passed by the learned Single Judge dated
10.12.2010 dismissing the writ petitions is upheld.
32
40. No order as to costs.
...................J.
[ARUN MISHRA]
...................J.
[M. R. SHAH]
...................J.
[B.R. GAVAI]
NEW DELHI;
SEPTEMBER 19, 2019.
