Godrej Consumer Products Limited v. Union of India & Others: Denial of GST Budgetary Support to Units Not Availing Excise Exemption Immediately Before 1st July 2017 — High Court of J&K and Ladakh Upholds Strict Interpretation of Eligibility Criteria
Sections Involved
- Article 14 — Constitution of India (Right to
Equality)
- Article 19(1)(g) — Constitution of India
(Right to carry on trade or profession)
- Articles 265 & 300A — Constitution of
India (Tax only by authority of law; Right to Property)
- Article 269A — Constitution of India (Levy and
collection of GST in course of inter-state trade)
- Article 270 — Constitution of India
(Distribution of taxes between Union and States)
- Article 279A — Constitution of India (GST
Council)
- Section 5A(1) — Central Excise Act, 1944
(Power to grant exemption from duty)
- Section 10 — Central Goods and Services Tax
Act, 2017 (Composition Scheme)
- Section 49 — Central Goods and Services Tax
Act, 2017 (Payment of tax, interest, penalty and other amounts)
- Section 174(2)(c) — Central Goods and Services
Tax Act, 2017 (Savings clause and proviso relating to exemption
notifications post appointed day)
- Section 20 — Integrated Goods and Services Tax
Act, 2017 (Application of provisions of CGST Act)
- Notification No. 56/2002-CE dated 14th
November 2002 — Central Excise Area-Based Exemption Notification for
J&K
- Notification No. 57/2002-CE dated 14th
November 2002 — Central Excise Exemption Notification
- Notification No. 01/2010-CE dated 6th February
2010 — Central Excise Exemption for Substantial Expansion
- Notification No. 21/2017-CE dated 18th July
2017 — Rescission of erstwhile Central Excise Exemption Notifications
- DIPP Notification No. F.No. 10(1)/2017-DBA-II/NER
dated 5th October 2017 — Scheme of Budgetary Support under GST Regime
- SRO 519 & 521 dated 21st December 2017 —
J&K Reimbursement of Central Taxes Scheme
- Circular No. 1060/9/2017-CX dated 27th
November 2017 — Procedure for disbursal of Budgetary Support
Facts of the Case
The Petitioner, Godrej Consumer
Products Limited — a leading Fast-Moving Consumer Goods (FMCG) company engaged
in the manufacture of household insecticides, personal care and home products —
operated two manufacturing units in the erstwhile State of Jammu & Kashmir:
- Unit at Chak Pratap Singh, National Highway-1A,
Hatli Morh, Kathua (J&K)
- Unit at SIDCO Industrial Complex, Lane-3,
Phase-II, Bari Brahmana, Samba
The Kathua Unit had commenced
commercial production in 2005–06 and was availing Central Excise area-based
exemption under Notification No. 56/2002-CE dated 14th November 2002,
which entitled eligible units to exemption for a period of ten years from the
date of commencement of commercial production or from the date of publication
of the notification, whichever was later. For the Petitioner's Kathua Unit, the
benefit under Notification No. 56/2002-CE, having commenced production on 10th
February 2007, was accordingly valid only up to 9th February 2017.
Pursuant to the New Industrial
Policy for Jammu & Kashmir introduced in June 2002, the Central
Government issued Notification No. 01/2010-CE dated 6th February 2010 to
enable manufacturers to set up new units or undertake substantial expansion at
a later date and avail Central Excise exemption benefits. The Petitioner
averred that this notification contained no sunset clause, thereby offering
existing units the option to undertake substantial expansion at any time
without limitation.
Relying on this policy framework,
the Petitioner undertook steps for substantial expansion of the Kathua
Unit, and the District Industries Centre (DIC) granted the necessary permission
vide letter dated 13th October 2016. The Petitioner also took
substantial steps towards establishing its new unit at Bari Brahmana,
with all necessary approvals secured prior to the rollout of GST on 1st July
2017.
With the introduction of the GST
regime effective 1st July 2017, the Central Government rescinded the
erstwhile excise exemption notifications, including Notification Nos.
56/2002-CE and 01/2010-CE, vide Notification No. 21/2017-CE dated 18th July
2017.
Anticipating the rollout of a
similar benefit scheme under the GST regime, the Petitioner commenced
commercial production from the Coil-11 Unit on 27th September 2017.
Subsequently, the Government of India issued DIPP Notification dated 5th
October 2017 announcing the Scheme of Budgetary Support under the GST
Regime for eligible manufacturing units in J&K, Uttarakhand, Himachal
Pradesh, and North Eastern States, providing reimbursement equivalent to 58%
of the CGST paid (after utilization of input tax credit) and 29% of IGST
paid.
The Petitioner filed an
application dated 28th February 2018 for registration as an eligible
unit and issuance of a Unique ID (UID) number — a prerequisite to
availing budgetary support under the scheme.
This application was rejected
vide Order dated 20th August 2018 passed by the Assistant
Commissioner, Central GST Division, Samba, on the ground that the
Petitioner's unit was not an "Eligible Unit" as defined under Para
4.1 of the DIPP Notification, since the unit was not availing any of the
prescribed exemption notifications immediately before 1st July 2017 and
had declared its date of commencement of commercial production as 25th
September 2017 — which post-dated the GST implementation date.
The Petitioner also challenged the
SRO 519 & SRO 521 dated 21st December 2017, issued by the Government
of Jammu & Kashmir under the J&K Reimbursement of Central Taxes for
Promotion of Industries Scheme, which mirrored the Central scheme and similarly
restricted its benefit to units availing 58% reimbursement under the Central
scheme.
Issues Involved
- Whether the definition of "Eligible Unit"
under Para 4.1 of the DIPP Notification dated 5th October 2017, which
restricts eligibility to units availing the erstwhile Central Excise
exemption immediately before 1st July 2017, is violative of Article
14 of the Constitution of India?
- Whether the Notification No. 21/2017-CE dated 18th
July 2017 rescinding the erstwhile excise exemption notifications was
issued without legal authority, given that Section 5A(1) of the Central
Excise Act stood repealed effective 1st July 2017 by virtue of Section
174 of the CGST Act, 2017?
- Whether the Proviso to Section 174(2)(c) of the
CGST Act, 2017 is illegal, unconstitutional, and inconsistent with the
main provision of Section 174, to the extent it grants power to issue
notifications even after the appointed day, and restricts certain classes
of assessees from availing tax exemption granted as an incentive for
investment on or after 1st July 2017?
- Whether the Petitioner is entitled to the protection
of the doctrines of promissory estoppel and legitimate
expectation on account of substantial investment made and steps taken
prior to 1st July 2017 in reliance upon the erstwhile exemption
notifications?
- Whether the Order dated 20th August 2018
rejecting the Petitioner's application for Unique ID was perverse,
illegal, and contrary to the admitted facts of the case?
- Whether the impugned Notifications and the Rescinding
Notification are violative of Articles 265 and 300A of the
Constitution of India?
1. Eligibility Under
Notification No. 01/2010-CE: The Petitioner contended that it was eligible
to avail benefits under Notification No. 01/2010-CE as all substantial steps
for expansion of the Kathua Unit had been completed and the DIC had granted the
necessary permissions on 13th October 2016, well before the GST rollout.
For the Bari Brahmana Unit, all substantial steps and necessary approvals were
secured prior to 1st July 2017. Accordingly, the Petitioner's eligibility under
the erstwhile notifications had crystalized before the GST appointed day.
2. Contradictory Language in
the DIPP Notification: The Petitioner argued that Para 4.1 of the DIPP
Notification, which restricts eligibility to units availing exemption
immediately before 1st July 2017, is contradictory to the introductory
paragraph of the same notification, which states that budgetary support is
available to units eligible for drawing benefits under the earlier
excise duty exemption schemes. The harmonious construction of the notification
ought to encompass units that were entitled to avail the benefit, even
if they had not physically commenced availing it before 1st July 2017.
3. Violation of Article 14:
The Petitioner submitted that the impugned notifications created an arbitrary
and unreasonable classification by granting budgetary support to units availing
exemption on 30th June 2017, while excluding units like the Petitioner which
had undertaken substantial expansion and had a vested entitlement to exemption
but had not yet commenced production before the GST rollout date. This
classification lacked any intelligible differentia having a nexus with the
object sought to be achieved, thereby violating Article 14 of the Constitution.
4. Rescinding Notification
Issued Without Legal Authority: The Petitioner argued that Notification No.
21/2017-CE was issued on 18th July 2017 purportedly in exercise of powers under
Section 5A(1) of the Central Excise Act, a provision which had already
been repealed with effect from 1st July 2017 under Section 174 of the CGST Act.
Consequently, the rescinding notification had no legal foundation and was
violative of Articles 265 and 300A of the Constitution.
5. Proviso to Section 174(2)(c)
Challenged: The Petitioner challenged the constitutional validity of the
Proviso to Section 174(2)(c) of the CGST Act, contending that it illegally
restricts the class of assessees from availing tax exemptions granted as
investment incentives on or after 1st July 2017 and that such restriction is
inconsistent with the main provision of Section 174.
6. Promissory Estoppel and
Legitimate Expectation: The Petitioner urged that having made substantial
investments in expansion relying upon the assurance of continued tax incentives
held out by the Government under the erstwhile policy framework, it was
entitled to invoke the doctrines of promissory estoppel and legitimate
expectation to compel the Government to honour its commitment or ensure
continuity of equivalent benefits under the GST regime.
7. Perversity of Impugned
Order: The Petitioner contended that the rejection order dated 20th August
2018 passed by Respondent No. 8 was passed in a summary manner, without proper
appreciation of admitted facts, and by wrongly applying the eligibility
criteria under Para 4.1 of the DIPP Notification.
Case Laws Relied Upon by
Petitioner:
- Geldhof Auto and Gas Industries Ltd v. Union of
India, 2010 SCC Online Bom 2124
- State of Bihar v. Suprabhat Steel Limited,
(1999) 1 SCC 31
- Lloyds Electric and Engineering Limited v. State
of Himachal Pradesh, (2016) 1 SCC 560
- State of Jharkhand v. Tata Cummins Ltd.,
(2006) 4 SCC 57
- Bajaj Tempo Ltd v. Commissioner of Income Tax,
(1993) 3 SCC 78
- Vadilal Chemicals Ltd v. State of A.P., (2005)
6 SCC 292
Respondents' Arguments
1. Petitioner Not Availing
Exemption Immediately Before 1st July 2017: The Respondents contended that
the Petitioner's Kathua Unit was availing the benefit under Notification No.
56/2002-CE from the date of commencement of commercial production i.e. 10th
February 2007, and was accordingly entitled to the benefit for a period of
ten years only, i.e., up to 9th February 2017. After this date, the
Petitioner was no longer eligible to avail the benefit under any exemption
notification. No application for further expansion of the unit was pending with
the Department as of the GST implementation date.
2. Petitioner's Declared Date
of Commencement as Post-GST: The Respondents pointed out that in its own
application for issuance of Unique ID, the Petitioner had declared the date of
commencement of commercial production as 25th September 2017 — a date
after the GST rollout. Since the Petitioner was not availing any of the
prescribed exemption notifications on or immediately before 1st July 2017, it
plainly fell outside the definition of "Eligible Unit" under Para 4.1
of the DIPP Notification.
3. Misdirection in Application:
The Respondents contended that the Petitioner had misdirected in its
application for Unique ID by claiming that it was availing Notification No.
01/2010-CE up to 30th June 2017, whereas the factual position was that the
Petitioner was working under Notification No. 56/2002-CE and that benefit had
expired on 9th February 2017 itself. The Petitioner was not working under
Notification No. 01/2010-CE at any point prior to 1st July 2017.
4. Policy Decision Beyond
Judicial Review: The Respondents submitted that withdrawal of exemption in
the public interest is a matter of policy, and courts would not bind the
Government to its policy decisions for all times to come, particularly when the
Government was satisfied that a change in policy was necessary in public
interest. In support, the Respondents relied upon the Supreme Court's judgment
in Union of India v. V.V.F. Industries, (2020) 20 SCC 57.
5. Budgetary Support Scheme as
a Measure of Goodwill: The Respondents emphasized that the Budgetary
Support Scheme was introduced purely as a measure of goodwill and had no legal
relation to the erstwhile exemption notifications. The scheme was specifically
designed for and limited to units which were actually availing the erstwhile
exemption benefits and were required to transition to the GST regime without
the benefit of tax exemption. The scheme was not intended to extend benefits to
units which had not yet commenced production under the erstwhile notifications.
6. Constitutional Validity of
GST Council's Decisions: The Respondents relied on Article 279A to justify
the GST Council's decision dated 30th September 2016 that exemptions from
payment of indirect tax under any existing scheme would not continue under the
GST regime, and that it was left to the Central and State Governments to notify
budgetary support schemes for concerned units.
Court's Order / Findings
1. Scheme of Budgetary Support
— Nature and Scope: The Court undertook a detailed analysis of the DIPP
Notification dated 5th October 2017 and noted that the scheme was introduced as
a measure of goodwill, exclusively for units which were eligible for drawing
benefits under the earlier excise duty exemption/refund schemes. The scheme
expressly has no relation to the erstwhile schemes and came into
operation with effect from 1st July 2017 for eligible units as defined in Para
4.1, valid until 30th June 2027.
2. Definition of "Eligible
Unit" — Strict Construction: The Court held that under Para 4.1 of the
DIPP Notification, an "Eligible Unit" means a unit which:
- Was eligible before 1st July 2017 to avail
ab-initio exemption or exemption by way of refund under the specified
notifications; and
- Was actually availing the said exemption
immediately before 1st July 2017.
Both conditions are conjunctive
and mandatory. The Court found that the Petitioner's unit was not availing
any of the prescribed exemption notifications immediately before 1st July 2017
— its exemption under Notification No. 56/2002-CE had already expired on 9th
February 2017, and it had commenced commercial production of the
expanded/new unit only on 25th September 2017, a date posterior to the
GST appointed day.
3. Rejection Order Upheld:
The Court upheld the Order dated 20th August 2018 passed by the Assistant
Commissioner, finding it to be self-explanatory, legally correct, and
consistent with the terms of the DIPP Notification. The Order had correctly
concluded that the Petitioner's declared date of commercial production (25th
September 2017) fell outside the scheme's eligibility criteria, and that the
Petitioner had made a misdeclaration in claiming to have been availing
Notification No. 01/2010-CE up to 30th June 2017.
4. No Violation of Article 14:
The Court rejected the argument of violation of Article 14, holding that the
impugned notifications are lucid and unambiguous. The classification of
eligible units on the basis of actual availing of exemption immediately before
1st July 2017 is a clear, identifiable, and rational basis for differentiation,
and courts cannot substitute their judgment for that of the legislature or
executive on economic and fiscal policy matters.
5. Promissory Estoppel and
Legitimate Expectation — Rejected: The Court decisively rejected the
Petitioner's invocation of the doctrines of promissory estoppel and legitimate
expectation, holding:
The doctrine of promissory
estoppel cannot be invoked in the abstract; courts must consider all aspects,
including the objective to be achieved and the public good at large. Doctrine
of promissory estoppel must yield when equity so demands, if it would be
inequitable to hold the Government to its promise having regard to the facts
and circumstances. — Para 12.1–12.2
Relying on Kasinka Trading v.
Union of India, (1995) 1 SCC 274, the Court reiterated that withdrawal of
exemption "in public interest" is a matter of policy and courts would
not bind the Government to its policy decision for all times.
Relying further on Union of
India v. V.V.F. Ltd, (2020) 20 SCC 57, the Court held that an authority
which has the power to issue a notification has the undoubted power to rescind
or modify the same. Promissory estoppel cannot be invoked where public interest
warrants a change in policy, and the doctrine cannot be used to compel the
Government to act contrary to law or to enforce a promise made contrary to
statutory provisions.
6. Exemption Notifications —
Strict Construction: The Court emphatically reiterated the settled legal
principle that exemption notifications are to be strictly construed. The
beneficiary must squarely fall within the ambit of the exemption and fulfil all
conditions prescribed thereunder. Any ambiguity in an exemption notification
must be resolved in favour of the Revenue, not the assessee.
Relying on:
- Krishi Upaj Mandi Samiti v. CCE, (2022) 5 SCC
62
- Commissioner of Customs, Bangalore v. GE B Ltd,
(2016) 15 SCC 733
- Commissioner of Customs (Preventive) Mumbai v. M.
Ambalal and Company, (2011) 2 SCC 74
- Commr. of Customs v. Dilip Kumar & Co.,
(2018) 9 SCC 1
The Court held that while in the
case of ambiguity in a charging provision, the benefit goes to the assessee, in
the case of an exemption notification, the benefit of ambiguity must be
construed strictly in favour of the Revenue.
7. Fiscal Policy —
Non-Interference: The Court underscored that courts do not interfere with
fiscal policy when the Government acts in public interest and no fraud or mala
fides is alleged or established. The Government must be left free to determine
priorities in utilisation of finances and to act in public interest while
issuing, modifying, or withdrawing exemption notifications.
Relying on R.K. Garg v. Union
of India, (1981) 4 SCC 675, the Court observed that economic legislation is
essentially empiric in character and courts must adjudge its constitutionality
by the generality of its provisions, not by crudities, inequities, or
possibilities of abuse.
8. Circular No. 1060/9/2017-CX
— No Independent Legal Effect: The Court held that the impugned Circular
dated 27th November 2017 is merely an elucidation of the main DIPP Notification
and does not prescribe fresh or new terms and conditions for granting budgetary
support. Accordingly, no interference was warranted with the said Circular.
Important Clarifications
- The condition under Para 4.1 is conjunctive: A
unit must both (a) have been eligible before 1st July 2017 to avail
exemption, and (b) have been actually availing the said exemption
immediately before 1st July 2017. Mere eligibility or entitlement, without
actual availing, does not satisfy the criteria.
- Substantial expansion steps alone are
insufficient: Undertaking steps for substantial expansion and securing
DIC permissions prior to 1st July 2017 does not render a unit an
"Eligible Unit" under the Budgetary Support Scheme if commercial
production under the expanded capacity had not commenced and exemption had
not been availed before 1st July 2017.
- GST Budgetary Support Scheme is a goodwill
measure, not a successor right: The scheme is not a continuation of,
or a substitute for, the erstwhile Central Excise exemption notifications.
It is an independent measure of goodwill with its own distinct eligibility
criteria and bears no legal relation to the erstwhile notifications.
- Rescinding notification — legal backing confirmed:
The Court, proceeding on the basis that the rescinding notification and
the budgetary support scheme formed part of a coherent policy framework,
did not independently adjudicate the constitutional challenge to the
rescinding notification, effectively treating the policy framework as
valid in its entirety.
- Exemption notifications — no liberal construction:
Unlike charging provisions in a fiscal statute, exemption notifications
must be construed strictly. The court cannot expand the scope of an
exemption notification by purposive or liberal interpretation in the
absence of genuine ambiguity. If the conditions of the notification are
not fulfilled, the party is not entitled to its benefit, irrespective of
how compelling the circumstances may appear.
- Promissory estoppel yields to public interest:
The doctrine of promissory estoppel operates subject to the qualification
that it cannot prevail where equity demands otherwise and where holding
the Government to its promise would be contrary to public interest or
contrary to law.
Disposition
Both writ petitions — OWP No.
638/2018 and OWP No. 639/2018 — were dismissed as being devoid of merit.
All interim directions were vacated.
Pronounced on: 30th December
2022 Coram: Hon'ble Mr. Justice Tashi Rabstan & Hon'ble Mr. Justice
Mohan Lal High Court of Jammu & Kashmir and Ladakh at Jammu
Reportable: Yes | Speaking
Order: Yes
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