JUDGMENT
Monoranjan Mallick, J.
1. In this writ petition under Article 226 of the Constitution of India, Bourne and Shepherd, a partnership firm has prayed for a writ in the nature of Mandamus commanding the respondents to withdraw, cancel and/or rescind the purported Order, dated 16th October 1982 and the said purported Order, dated 2nd April 1983 passed by the Respondent No. 2, Assistant Collector of Customs for appraisement, Group-6, having his office at Customs House, 15/1, Strand Road, Calcutta and to register the contracts against the Import License No. P|C|2077276|C|XX|84|C|82 and to assess the goods imported of the First Schedule of Tariff Act and to act according to law and for other consequential reliefs.
2. The facts may be briefly stated as follows :
The petitioner had a photographic establishment and laboratory and carries on business, inter alia, of Colour Film, processing and printing of Colour Films and is duly registered as a Small Industrial Unit with the Directorate of Industries, Government of West Bengal. The processing unit of your petitioner is situated at No. 141, Surendra Nath Banerjee Road, Calcutta and various items of machineries are required by its aforesaid activities.
3. The Joint Chief Controller of Imports & Exports, Government of India issued an Import License to the petitioner being Import License bearing No. P|C|2077276|C|XX|84|C|82 for import of Divomat Mini Film developing machine process : Kodak C-41, 1000 mm tankheight, including automatic replenishment and 5 hangers, 4 pcs. reservoirs with 30 lit each and wall bracket, solenoid valve and water filter for nitrogen, economic nitrogen control, compressor for air, etc., true copy of the letter is annexed as Annexure ‘B
4. Heading No. 84.66 of the First Schedule to the Customs Tariff Act, 1975 (hereinafter referred to as “Tariff Act”) provides, inter alia, that all items of machinery instruments, apparatus and suppliances, auxiliary equipments, etc., which require for initial setting up of an unit or substantial expansion of an existing unit of a specified industrial plant or specified project shall be liable to Customs Duty at the rate of 60 per cent. The said Heading No. 84.66 would apply provided the said machinery instruments, etc., are imported against one or more specific contract which have been registered with the appropriate Customs House in the prescribed manner and such contract or contracts has or have been so registered before any Order is made by the proper Officer of Customs permitting, the clearance for home consumption, or deposit in a Warehouse of such articles.
5. Para 177(1) of the Hand Book of Import-Export Procedures, 1982-83 provides, inter alia, that Import Licences issued for Capital Goods and connected raw materials and components required for the initial setting up or for substantial expansion of a project would be endorsed, as admissible, on the recommendations of the Sponsoring Authority concerned for availing concessional rate of duty. Before making recommendation, the Sponsoring Authority will satisfy itself that the case is covered under the relevant notification issued by the Ministry of Finance in this regard. The endorsement to be made on the licence will be as follows:
“Project import for assessment under Heading No. 84-66 of Section XVI of the Customs Tariff Act, 1975 (51 of 1975)”.
6. Para 177(2) of the Hand Book of Import-Export Procedures, 1982-83 further provides that the proper Authority to decide whether a particular import is eligible to the concessional rate of Customs Duty as project import is the Customs Authority. Such Authority may allow the benefit of concessional duty, where permissible, even without the endorsement of the Licensing Authority to this effect on the relevant Import Licence, on the basis of recommendation of Sponsoring Authority.
7. In the case of the petitioner the Sponsoring, Authority, namely Local C.C. Committee before recommending endorsement on the said licenses duly examined all the relevant facts and after being fully satisfied that the import of the said machineries by the’ petitioner was covered by the provisions of Heading No. 84.66 of the Tariff Act recommended to the Joint Chief Controller of Imports & Exports for making necessary endorsement on the said Licences as stipulated in paragraph 177(1) of the Hand Book of Import Exports Procedures, 1982-83. The Small Industries Service Institute, Ministry of Industry, Government of India also duly certified that the machineries covered by the said licences were required by the petitioner for substantial expansion of its colour laboratory. A copy of the letter, dated 16th November, 1981 addressed by the Director, Small Industries Service Institute, Ministry of Industry, Government of India is annexed hereto in this connection and marked with the letter “C”. In the said letter it was mentioned, inter alia, that the said machineries/equipments would be eligible for assessment under Item No. 84.66 of the First Schedule to the Tariff Act.
8. The petitioner duly placed order for import of only one machine, namely Divomat Mini Film developing machine process: Kodak C-41, 1000 mm tankheight, including automatic replenishment and 5 hangers, 4 pieces reservoirs with 30 lit each and wall bracket, solenoid valve and water filter for nitrogen, economic nitrogen control, compressor for air and the said machine has been shipped by the foreign supplier. A copy of the relevant Invoice for the import of the said machine it also annexed hereto and marked with the letter “D”.
9. The petitioner vide its letter, dated 20th August 1982 duly applied to the Assistant Collector of Customs for registration of the Contract in accordance with the provisions of Tariff Act. A copy of the said letter is annexed hereto and marked with the letter “E”.
10. The said Assistant Collector of Customs vide its letter, dated 16th October, 1982 informed the petitioner that on scrutiny of the papers submitted by the petitioner it appears that the subject does not come under the purview of the Industrial Plant or any other project enumerated in the aforesaid heading of the Tariff Act, 1975. In view of this, the benefit of Project assessment cannot be extended to the goods required for initial setting up and/or substantial expansion of the aforesaid Project undertaking. A copy of the said letter is annexed hereto and marked with the letter “F”.
11. The petitioner through its Clearing Agents vide its letter, dated 19th March, 1983 informed the Assistant Collector of Customs that two cases of Divomat Mini Film developing machine complete with accessories and spare parts have been imported by the petitioner under the Import Licence, dated 7.7.1982. The said Licence has been duly endorsed by the Licensing Authority for assessment under Heading No. 84.66 for Customs Tariff Act 1975. The petitioner through its Clearing Agents in the said letter further stated that they did not agree with the views expressed by the Assistant Collector of Customs vide his letter, dated 15th October, 1982 and further requested the said Assistant Collector of Customs to enable the petitioner to file necessary document for registration of Project Contract as the consignment is due at the Port of Calcutta shortly. A copy of the said letter, dated 19th March, 1983 is annexed hereto and marked with the letter “G”.
12. The machinery covered by the Import Licence as aforesaid has arrived in the Port of Calcutta on 23rd March 1983. In order to enable the petitioner to get the said machinery assessed under the Heading 84.66 it was necessary for the petitioner to get the contract in question registered in the prescribed manner prescribed by the said Regulations and it was further necessary to get the said contract so registered before any order was made permitting clearance for home consumption or depositing in Warehouse of the said machinery. The petitioner accordingly through its Clearing Agent submitted bill of entry and all relevant documents before the Respondent No. 2 for registration of the contract in question so as to enable the petitioner to get the machinery assessed under Heading No. 84.66. All necessary formalities in this connection were duly complied with by the petitioner. A copy of the said bill of entry is annexed hereto and marked with letter “H”.
13. The said Bill of Entry with endorsement made by Respondent No. 2 at the back of it dated 2.4.83 and all other documents were returned by the Respondent to the petitioner. A copy of the Bill of Entry with the endorsement made on the back of it, which reads as under :
“The file No. S37C (misc) 324/82A is not readily available in the Section as mentioned by the dealing assistant. But from the documents provided by the party it appears that this case for registration was not allowed earlier vide letter No. F.N. S37/C (misc) 324/82A dated 16.10.82. So this Bill of Entry cannot be assessed under Project Import holding 84.66.”
14. The petitioner states that the Respondent No. 2, by its two purported Orders, dated 16th of October, 1982 and 2nd of April, 1983 refused to register the said Contract and refused to permit clearance of the goods on payment of duty under Heading No. 84.66.
15. The petitioner states that even the Director of Cottage and Small Scale Industries, Government of West Bengal vide its letter, dated 14th June, 1982 addressed to the Respondent No. 3 informing that the petitioner is a registered Small Scale Industrial Unit and is entitled to get benefit of concessional rate of import duty on the import of Colour Film processing machinery as per para 177(1) of Import Trade Control Policy, 1982-83 as the machinery is recommended as being essential for substantial expansion of the industry. A copy of the said letter, dated 14th June, 1982 is annexed hereto and marked with the letter “I”.
16. The petitioner states that the Deputy Director (Chemical), Government of India, Ministry of Industry vide its letter, dated 19th March, 1983 has also informed the petitioner that the import of machinery under the policy of project import is regulated as per the provisions of paragraph 177(1) of the Hand Book of Import-Export Procedures, 1982-83 and that the Colour Film Laboratory is considered as an industry by the Government. A copy of the said letter, dated 19th March, 1983 is annexed hereto and marked with the letter “J”.
17. The Respondent No. 2, however, by his purported Orders, dated 16th of October, 1982 and 2nd April 1983 rejected the contentions of the petitioner and held, inter alia, that the subject project of the petitioner cannot be treated as an Industrial Plant so as to fall within the ambit of heading No. 84.66 and that the petitioner’s project cannot be assessed thereunder and accordingly denied registration of the contract under the said head.
18. The petitioner states that the said purported Orders, dated 16th of October, 1982 and 2nd of April, 1983 and all purported proceedings relating thereto are wholly illegal, invalid and without jurisdiction. It is incumbent upon the respondents to assess the said machinery imported by the petitioner under Heading No. 84.66 of the Tariff Act.
19. As would be evident from the facts stated hereinbefore all the Appropriate Authorities of the Government of India and Government of West Bengal including the Ministry of Industry, Director of Cottage & Small Scale Industries, and the Joint Chief Controller of Imports & Exports are accepting and recognising the fact that your petitioner’s said unit is an industrial unit and that the said machineries are eligible for assessment under Heading No. 84.66 of the Tariff Act. The Joint Chief Controller of Imports & Exports after examining and scrutinising all relevant facts and after being satisfied in the matter issued the said licences to the petitioner by making endorsements thereon to the effect that the said licences were being issued for import under the project import scheme for assessment under Heading No. 84.66 of the Tariff Act. The authorities concerned of the Government of India as well as the Government of West Bengal have repeatedly informed the respondent Customs Authorities that the said machineries imported by the petitioner would be eligible for assessment under Heading No. 84.66 and that the petitioner’s said unit is an industrial unit falling within the purview of the said Heading No. 84.66. Inspite of the aforesaid the Customs Authorities are wrongfully and illegally seeking to deny the said lawful and legitimate claims of the petitioner. The petitioner states that the Customs Authorities have no right, authority or jurisdiction to go beyond the endorsement made by the Licencing Authority of the Government of India that the goods covered by the licences in question would be entitled for assessment under Heading No. 84.66 of the Tariff Act. The said decisions of the Government of India and/or Licencing Authorities and/or Sponsoring Authority are binding upon the Customs Authorities and the Customs Authorities have no right, authority or jurisdiction to take a different and inconsistent view or to go beyond the said decisions and/or Orders of the Licencing Authorities and/or Sponsoring Authority and/or the Government of India. Whether the licences under the project import schemes should be issued or not is essentially a matter to be decided by the Licencing Authority and/or Sponsoring Authority and the endorsement for project Import is made by the Licencing and Sponsoring Authorities only after they are fully satisfied that the machineries in question are required for initial setting up of an industrial unit or for substantial expansion thereof and that the same are eligible for assessment under Heading No. 84.66 of the Tariff Act. The goods imported under such licences endorsed for project import have to be assessed only under the said Heading No. 84.66 and the Customs Authorities have no right, authority or jurisdiction to levy and/or demand duty in respect of such imports under any other item.
20. In the circumstances, the petitioner submits that all the conditions for assessment under Heading No. 84.66 of the Tariff Act are satisfied in respect of the said unit of the petitioner and in respect of the imports covered by the said Import Licences and the purported rejection made by the Respondent No. 2 in order, dated 16th October, 1982 and 2nd April 1983 are wholly incorrect, misconceived and untenable
21. It is further submitted that the petitioner in fact acted on the basis of the representation and promises and altered its position by importing the said machineries and the said representations and/or promises of the Government of India are binding on the Customs Authorities and they have no right, authority or jurisdiction to go back on the said promises and/or representations and to contend that the petitioner is not entitled to get the said machineries assessed under the said Heading No. 84.66. The Customs Authorities are bound by the doctrine of promissory estoppel in this regard and the interest of the petitioner would greatly suffer if the Customs Authorities were allowed to go back on the said representations and/or promises. The petitioner, therefore, prays for a appropriate writ as the purported Orders of the Respondent No. 2, dated 16th October, 1982 and 2nd April, 1983 and all purported proceedings relating thereto are wholly without jurisdiction and/or in excess of jurisdiction and/or authority and/or illegal void and of no effect and/or vitiated by errors of law apparent on the face of the records and are liable to be set aside and/or quashed.
22. The Respondent No. 3 being the Joint Chief Controller of Imports and Exports has filed an Affidavit-in-opposition. However at the time of hearing none has appeared on behalf of the Respondent No. 3. It is their case that on the basis of the recommendation given by the Sponsoring Authority that Director of Cottage and Small Scale Industries, Government of West Bengal, the Joint Chief Controller of Imports and Exports made an endorsement on the Import Licence in terms of paragraph 174 (2) of the Hand Book of Import and Export Procedures AM 1983, that merely on the strength of the recommendation of the Director of Cottage and Small Scale Industries, Government of West Bengal, the Respondent No. 3 has made the necessary endorsement and that the Respondent No. 3 does not admit that the Joint Chief Controller of Import and Exports have accepted and recognised the fact that the petitioner’s said unit is an Industrial Unit or that the said machineries sought to be imported by the Import Licences in question are eligible for assessment under the Heading No. 84.66 of the Customs Tariff Act and that it is not correct that any independent enquiry was made by the Respondent No. 3 to decide whether the said machineries were eligible for assessment under the Heading No. 84.66 of the Tariff Act.
23. On behalf of the Respondent Nos. 1 and 2 no Affidavit-in-opposition has been submitted but the Learned Advocate for the Customs has appeared and has contested the writ petition contending that the machineries in question imported by the petitioner under the Import Licence in question were not eligible for assessment of duty under Heading No. 84.66 of the Customs. Tariff Act, that the machineries imported were admittedly for expansion for the petitioner’s film laboratory, that the said laboratory cannot be treated as Industrial Plant as the Film processing is not an Industry and the machineries imported cannot be held to be the machinery for the purpose of any Industrial Plant and that the Respondent No, 2 being the Assistant Collector of Customs has rightly refused to register the contract of such importation under 84.66 when such an application was made in 1982 and again in 1983 by Clearing Agent of the petitioner.
24. It is also contended that the charging of the duty under the relevant heading is a quasi Judicial function of the Customs Department, that in discharging such function the Assistant Collector of Customs is not to be guided even by any executive or other instructions by his superior officers and there is no question of any promissory estoppel in this case only because the Sponsoring Authority recommended the case of the petitioner to be eligible for concessional duty under the Heading No. 84.66 or the Joint Chief Controller, Imports and Exports made any endorsement to that effect in the Import Licence.
25. The first point for decision in this writ petition is whether the Customs Department is bound by any Promissory Estoppel to allow the concessional rate of duty under the Heading No. 84.66 and to register the contract under that heading.
26. On behalf of the petitioner it is submitted that when the Department of Industry of the Government of India and the Joint Chief Controller of Imports and Exports being the wings of the Government of India assured and represented to the present petitioner that their unit was an Industrial Plant and that the machineries imported were eligible for concessional duty under the heading No. 84.66 of the Customs Tariff Act and that when under the relevant paragraph of the Hand Book of Import and Export Procedure A.M. 83 the necessary endorsement has been made by the Respondent No. 3 in the Import Licence that the petitioner is entitled to the concessional rate of duty under Heading No. 84.66 of the Customs Tariff, then the Customs Authority being another wing of the Government of India is bound by promissory estoppel not to act otherwise as because of such representation made by those departments of the Government of India, the petitioner imported the machineries and thus altered his own position to his detriment and the Customs Department is thus estopped from claiming the higher rate of import duty and from refusing to register the contract under Heading No. 84.66.
27. The Hand Book of Import and Export Procedures A.M. 1983 which is the handbook relevant for the purpose of these imported machinery in paragraph 174 reads thus-
“(1) Import Licences issued for Capital Goods and connected raw materials and components required for the initial setting up or for substantial expansion of a project would be endorsed as admissible, on the recommendations of the Sponsoring Authority concerned for availing concessional rate of duty. Before making recommendation, the Sponsoring Authority will satisfy itself that the case is covered under the relevant notification issued by the Ministry of Finance in this regard. The endorsement to be made on the licence will be as follows :
“Project import for assessment under Heading No. 84.66 of Section XVI of the Customs Tariff Act 1975 (51 of 1975).
(2) Where import of machinery is allowed under open general licence, the benefit of concessional rate of duty may be allowed by the Customs Officer on the recommendation of the Sponsoring Authority concerned”.
28. The Import Licence Annexure ‘B’ contains the following endorsement as contemplated in paragraph 144(1) of the relevant Hand Book, namely, “project import for assessment under Heading No. 84.66 of Section XVI of the Customs Tariff Act 1975 (51 of 1975)”. The relevant paragraph indicates that such endorsement shall be made by the concerned Controller of Imports and Exports on the recommendation of the Sponsoring Authority concerned for availing Customs rate of duty. The said paragraph further enjoins upon the Sponsoring Authority to satisfy itself that the case is covered under the relevant notification by the Ministry of Finance in this regard.
29. Sub-paragraph (2) of paragraph 174 of the Hand Book indicates that where the imports of machineries is allowed under open general licence, the benefit of concessional rate of duty may be allowed by the Customs Officer on the recommendation of the Sponsoring Authority.
30. Therefore, this paragraph only indicates that the benefit of concessional rate of duty may be allowed by the Customs Officer on the recommendation of the Sponsoring Authority. The Sponsoring Authority in this case is the Director of Cottage and Small Scale Industries, Government of West Bengal. A copy of the recommendation of the Sponsoring Authority, dated 14.6.82 has been annexed in this writ petition as Annexure ‘J’, and it is addressed to the Joint Controller of Import and Export, Calcutta.
31. A copy of such Notification appears to have been issued to the Collector of Customs. However, the said letter which is in continuation in the previous letter, dated 17.5.1982 in conclusion states as follows:
“The case is recommended and you are requested to kindly look into the matter and see that the unit can get the faculties of concessional duty, if eligible.”
31 (a). This letter of recommendation of the Sponsoring Authority clearly indicates that the petitioner would be entitled to get the concessional duty only if it is eligible for the same.
32. After the Import Licence has been obtained, the petitioner wrote the letter, dated August 20, 1982 vide Annexure ‘E’ to the writ petition to the Assistant Collector of Customs for the registration of the contract for the purpose of the Heading No. 84.66 of the Customs Tariff. The relevant portion of the said letter being the 3rd paragraph clearly shows that the petitioner requests the Customs Department to let them know whether the contract can be registered in their department on the basis of the endorsement given by the Licensing Authority on the license and the due benefit given in terms of Tariff Item No. 84.66. In that letter the petitioner never claimed that as the Sponsoring Authority recommended its case for concessional duty under Heading No. 84.66, the Customs Authority should register it under that heading so that it can get the concessional rate of duty under that heading.
33. In reply to that letter the Respondent No. 2 wrote back to the petitioner by the letter, dated 16.10.82 that as the subject project does not come under the purview of the Industrial Plant or any other project enumerated Heading No. 84.66 of the Customs Tariff Act 1975 the benefit of project assessment cannot be extended to the said machinery sought to be imported.
34. After the importation of the machineries in question the Clearing Agent of the petitioner by the letter, dated March 19, 1983 has again approached the Respondent No. 3, the Assistant Collector of Customs for the registration of the project contract under Heading No. 84.66. It has been indicated in that letter that the goods have already been imported, that on the previous occasion the application for registration was made but the Respondent No. 2 replied that that the project assessment under item No. 84.66 of the Customs Tariff Act could not be extended to the goods covered by the Import Licence and that the Respondent No. 2 might again reconsider the case and allow clearance at the concessional rate of the project contract under the Heading No. 84.66 under the Customs Tariff Act 1975. It is an admitted position that by the Order, dated 2nd April, 1963 the Assistant Collector of Customs being the Respondent No. 2 refused to reconsider and to register the contract under Heading No. 84.66.
35. The facts and circumstances as disclosed in the above, do not indicate that the Customs Department ever and made any representation and/or promise that the machinery imported would be eligible for the concessional rate of Duty under Heading 84.66 of the Customs Tariff that is also not the case of the writ petitioner. The writ petitioner contends that when the other departments of the Central Government being the Joint Chief Controller of Import and Exports, Calcutta held that the petitioner’s case of import was eligible for the concessional rate of Duty, the Customs Authority being the another wing of the Government of India is also bound by such representation and/or promise.
36. My attention has also been drawn to a letter, dated 19th March 1983 issued by the Deputy Director of Chemicals of the Government of India, Ministry of Industry (Department of Industrial Development), Small Industry Service instituted. That letter has been addressed by the Deputy Director Chemicals of the above department to the writ petitioner intimating the petitioner that they have since been advised by the Development Commissioner, Small Scale Industries by the letter, dated March 2, 1983 that import of machinery under the policy of project import is regulated as per the provision of para 177 page 37 of the Hand Book, the Import and Export Procedure 1983. It is also intimated to the petitioner by the Deputy Director that the Colour Film Laboratory is considered as an industry by the Government.
37. This letter of the Government of India does not give any assurance or representation that as soon as the machineries under the said project is imported, the petitioner will be entitled from the Customs Department the necessary facilities of concessional rate of duty under Heading 84.66 of the Customs Tariff.
38. I have already indicated that the Hand Book of the import and export procedure itself has stated that the Customs Department may consider the case of concessional rate of Duty on the recommendation of the Sponsoring Authority. Therefore, it is the Customs Department also has to exercise its jurisdiction as to whether the project import of machinery is eligible for the concessional rate of Duty. In this case, no department of the Government of India made any representation and/or promise to the petitioner that the petitioner would be entitled to the concessional rate of Duty under Heading 84.66. It is within the exclusive jurisdiction of the Customs Department to decide as to whether it would register the contract in question under the Heading No. 84.66. It is for this purpose the petitioner on August 20, 1982 and again in March 1983 made a request to the Assistant Collector of Customs to register the contract under the above Heading. The same has been refused by the Respondent No. 2. Whether the said refusal is arbitrary or illegal and whether because of such arbitrary refusal the petitioner would be entitled to get any relief in this writ petition would be decided in this writ petition. But I am of the view that it is not a case in which any department of the Government of Indiao made any representation and/or promise that the petitioner would be entitled to the concessional rate of Duty under the Heading No. 84.66.
39. That the Governmental Authority is also bound by the principles of promissory estoppel has now been established by several decisions of the Supreme Court. The Supreme Court decisions follow the principle laid down in the English Decision reported in 1948(2) All E.R. page 767. The Supreme Court has also in several decisions enunciated this principle and these decisions have also gone ever far to lay down the principle that if one wing of the Government holds out such promise the other wing of the Government would also been estopped from acting contrary to such promise. The main such decisions are reported in Union of India v. Anglo Afgan Agencies, AIR 1968 S.C. 718, M.P. Sugar Mills v. State of Uttar Pradesh, and Jitram Shiv Kumar v. State of Haryana, . Bhagawati, J. (as His Lordship then was) in M.P. Sugar Mills case has laid down the principles of promissory estoppel stating that the true principle of promissory estoppel seems to be that where one party has by his words or contract made to the other a clear and unequivocal promise which is intended to create legal relations or effect a .legal relationship to arise in the future, knowing or, intending that it would be acted upon by other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be in equitable to allow him to do so having regard to the dealing which have taken place between the parties and these would be so irrespective of whether there is any pre-existing relationship between the parties or not. It has also been clearly held that the doctrine is enforceable even against the Government notwithstanding the fact that there is no contract executed in the form required by Article 299 of the Constitution or that there is no consideration for the promise.
40. The Supreme Court in Jitram Shiv Kumar case has also applied the principle but has laid down four exceptions in the following terms, namely,
(i) The plea of promissory estoppel is not available against the exercise of the legislative functions of the State.
(ii) The doctrine cannot be invoked for preventing the Government from discharging its functions under the law.
(iii) When the Officer of the Government acts outside the scope of his authority, the plea of promissory estoppel is not available.
(iv) The Officer would be justified in discharging the terms of the prejudice of the other party on special consideration, such as difficult foreign exchange position or other matters which have a bearing on. general interest of the State.
41. There are also several decisions of the Supreme Court reiterating the above principles as laid down in the above decisions. However, the essential condition for the applicability of the principle of promissory estoppel is really the promise, if there was no promise made by any Governmental Authority to the petitioner that it would be eligible for the concessional rate of Duty. In this case the Assistant Collector of Customs has to exercise a quasi-Judicial function in determining as to whether the petitioner is entitled to the concessional rate of Duty under the Heading 84.66 of the Tariff Act and only when the Assistant Collector of Customs is so satisfied then he has the obligation to register it. Therefore no question of promissory estoppel arises in such a case. As to what is duty is chargeable under a particular Heading is a question of interpretation of the relevant Heading by the Customs Officer concerned. He has to exercise his jurisdiction fairly and not arbitrarily but even if the Sponsoring Authority recommends the case in terms of the relevant paragraph of the Manual of the Import Policy, the Customs Officer has to exercise it discretion independently. The letter of the Sponsoring Authority to which I have already made reference clearly indicate that it recommended the concessional rate of Duty only if the petitioner was eligible for the same. Whether the petitioner is eligible or not is the exclusive province of the Customs Officer concerned to decide. In Excise Commissioner, U.P. v. Ram Kumar, the question arose before the Supreme Court as to whether the Government was estopped from enforcing the notification raising the Sales Tax and Collecting Sales Tax. High Court has held that when Section 3A and 4 of the U.P. Sales Tax 1948 clearly authorises the State Government to impose the Sales Tax, the fact that the sales of country liquor had been exempted from sales tax vide Notification, dated April 6,. 1959 could not operate as an estoppel against the State Government and preclude from subjecting the sales to tax if it felt impelled to do so in the interest of the Revenues of the State and there can be no question of estoppel against the Government in the exercise of Legislative, sovereign and executive powers.
42. On behalf of the Respondent, a decision of the Learned Single-Judge of Bombay High Court in Indoglass Private Ltd. and Ors. v. Union of India and Ors., 1982 E.L.T. 135 has been cited where it has been held as to whether a particular item is chargeable under a particular Heading of the Central Excise Tariff was the exclusive jurisdiction of the Concerned Authority and it is well settled that there cannot be any estoppel against the statute and the Authorities deciding the application of the statute cannot be bound by any directions of trade notice issued by the Government and that the quasi-Judicial Authorities are not bound to classify a product on the basis of the trade notice nor the contents of trade notice can conclude the ambit of the Tariff item.
43. Thus considering this case of all its aspects I am of the view that neither the Respondent No. 1 nor the Respondent No. 2 is bound by any promissory estoppel in this particular case and it was within the jurisdiction of the Assistant Collector of Customs being the Respondent No. 2 to decide independently as to whether the petitioner was entitled to the concessional rate of Duty under the Heading No. 84.66. Therefore, first contention of the petitioner fails.
44. Secondly, it is urged on behalf of the writ petitioner that the Customs Department had illegally held that the project import does not come within the purview of the Heading 84.66. It is contended that the machinery imported is definitely in connection with an Industrial Plant, that the Central Government has recognised the Film Laboratory to be an Industry and consequently the machinery imported for the substantial expansion of the Film Laboratory of the petitioner is the importation of auxiliary machinery for an Industrial Plant and the Assistant Collector of Customs has illegally refused to register it under the Heading 84.66 of Custom Tariff Act.
45. On behalf of the Respondent-Customs, this contention has been seriously challenged and it is urged that the film processing laboratory is not an Industrial Plant and the importation of any machinery for the purpose of expansion of such laboratory does not attract the Heading No. 84.66 of the Customs Tariff Act.
46. “Industrial Plant” has not been defined in the Customs Tariff Act. Therefore, we shall have to rely upon the ordinary dictionary meaning of the expression “Industrial Plant”. ‘Plant’ has been defined in law lexican is as follows :-
In Webstor’s dictionary the meaning of the word Plant as given therein is as follows :
“The machinery, apparatus, fixtures, etc., employed in carrying on a trade or a mechanical or other industrial business; as an electric light-plant, a fishing plant, etc. In the commercial sense, a plant may include real estate and all else that represents capital invested in the means of carrying on a business, exclusive of the raw material or the manufactured product.” Since the word is nor defined it would certainly be possible to look to the meaning of the word as given in the dictionary. Now the primary meaning of the word “plant”, therefore, has connection with mechanical or industrial business or manufacture of finished goods from the products. Even in the extended meaning of the word it seems that it would only cover an asset representing capital investment in a manufacturing trade or business, because according, to the said extended meaning, it must be something, which represents capital invested in the means of carrying on business exclusive of its raw materials or the manufactured product.”
47. The machinery imported by the petitioner would come within the definition of “plant”. That the laboratory of the petitioner is an industrial plant has been seriously disputed by the Respondent and it is contended that the photographic establishment and laboratory of the petitioner is neither as industry nor an industrial plant to attract Heading No. 84.66. It is contended that the dictionary meaning of the word “industry” indicates that the manufacturing activity is an important indicia to determine whether a particular establishment would be an industry and if there is no manufacturing activity or production it would not be an industry within the meaning of that term. It is therefore urged that when the laboratory of the petitioner is engaged in processing the Film and not in manufacturing any product, it is not an industry. My attention has been drawn to a decision of the Customs Tribunal reported in 1982 (17) ELT 443 Photo Visual, Calcutta v. Collector of Customs, Calcutta in which the Tribunal has also rejected the contention of a similar photographic establishment and a laboratory of Calcutta to come under the Heading No. 84.66 of the Customs Tariff for the importation of machinery for the expansion of such photographic laboratory.
48. On behalf of the petitioner it is contended that the said decision of the Tribunal is not binding upon this Court and that the said decision is under challenge before the Supreme Court.
49. There is no doubt that the said decision does not bind this Court. On perusal of the said decision I find that the Tribunal had considered the technical meaning of the industry in Chambers 20th Century Dictionary page 669 as “any branch of trade or manufacture”. I am of the view that it would be a very taking a very narrow view if it is held that the Industrial Plant envisages only the manufacture and production of goods from raw materials. The Government of India has also indicated in its letter annexed that a film processing laboratory is considered by the Central Government to be an industry. A Film processing industry is engaged as processing of Film the mechanical process and that comes within the meaning of manufacturing process, The processing of the Film in the laboratory by mechanical process with the help of machine is definitely a manufacturing process. The processed Film does not remain the same thing before it is processed and in transformed and is turned into a new product. Therefore, it would not be proper to take a narrow view of the term industry an industrial plant and to hold that in the present context of the industrial activity, a film processing laboratory would not come within the purview of an industrial plant. Thus I am of the view machinery imported for the expansion of the laboratory of the petition is importation of machinery for an industrial plant.
50. However, there is a very important aspect for Heading 84.66 to be attracted and that has been indicated in the judgment of the Tribunal referred to above. The Tribunal has also observed that in the above decision Heading No. 84.66 envisages the Government specifying the industrial plants to come within the purview of that Heading and rejected the claim of the photo visual on the ground that the laboratory has not yet been specified by Central Government to attract that Heading. The relevant portion of Heading 84.66 of the Customs Tariff reads thus-
“84.66 All items of
(a)…………….
(b)…………….
(c)…………….
(d) Auxiliary equipments, as well as all components (whether finished or not) or raw materials for the manufacture of the aforesaid items and their components, required for the initial setting up of a unit, or substantial expansion of an existing unit, of a specified :
(1) Industrial Plant,
(2) Irrigation Project,
(3) Power Project,
(4) Mining Project,
(5) Project for the exploration for oil or other minerals, and
(6) Such other projects as the Central Government may, having regard to the economic development of the country, notify in the Official Gazette in this behalf:
Provided these are imported (where is one or in more than one consignment) against one or more specific contracts which have been registered with the appropriate Customs House in the manner prescribed by Regulations which the Central Board of Excise and Customs may make Under Section 157 of contract or contracts has or have been so registered before any order is made by the proper Officer of Customs permitting the clearance for home consumption, or deposit in a warehouse of items, components or raw materials;”
51. Therefore, auxiliary equipment required for the initial setting up of an. unit or substantial expansion of an existing unit must be in respect of a specified industrial plant. Therefore, the industrial plant which would be entitled to the concessional Duty under Heading 84.66 must be an industrial plant which is specified by the Central Government as entitled to such concessional Duty. There is nothing in the writ petition to indicate that the film processing laboratory has been specified as such an industrial plant to get the benefit of Heading 84.66. The writ petitioner has not made any whisper in the writ petition about this aspect of the case. If the concessional rate of Duty is available to any industrial plant, then the expression “specified industrial plant” would not have been used in the Heading 84.66. It cannot be held that the word “specified” used in Heading No. 84.66 is merely a surplusage. If that expression conveys any meaning, then not every industrial plant would come within the purview of the concessional rate of Duty under Heading 84.66 but only those industrial plants which have been so specified by the Central Government to come under Heading 84.66.
52. In the result, I am of the view that the Respondent No. 2 did not commit any illegality in refusing to register the contract of the importation of this machinery or this petitioner per expansion of its laboratory and such refusal being in accordance with law, cannot be interfered with by the Writ Court under Article 226 of the Constitution. The writ petition is, therefore, dismissed. All interim Orders are vacated and the Respondents No. 1 and 2 are entitled to recover the duties chargeable for the imported machinery under the relevant Heading of the Customs Tariff Act and to take proper steps for recovery thereof.
