ORDER [ENTITY], J.
1. As common questions of fact and law are involved in both these writ petitions filed by the petitioner, they are taken up for consideration together and disposed of by this common order.
2. Petitioner is a company engaged in the business of manufacture and export of gold jewellery. It claims that it is the largest exporter of gold jewellery in the country and has received several National and State awards for its sterling export performance over the last 15 years. They claim to have set up the World's largest jewellery manufacturing facility at Whitefield, Bangalore. It is a Central Government recognised trading house and is a "status holder" under the [ACT].
3. Under the provisions of the [ACT] (for short "the Act") the Government has issued an Export and Import Policy for the period 2002-07 (for short "the policy"). The policy is also accompanied by the Hand Book of Procedures for implementation of the policy. It is in pursuance of this policy and the Hand Book, the activities of import and export are regulated and monitored. The petitioner contends that in view of the provisions relating to the promotional measures set out in para 3.7.2. l(vi) of the policy read with para 3.2.5 of the Hand Book, the petitioner being a recognized status holder is entitled to the benefits mentioned therein. Based on the promise of those benefits, the petitioner undertook steps to increase exports by massive reduction in the pricing of its products to make them competitive in the international markets. In view of the reduction in the price, several foreign companies have placed substantial orders, for purchase from the petitioners. To satisfy those orders petitioner had to enhance its production capacity by employing greater work force and additional machinery thereby making substantial investments in order to meet the exponential increase in the demand of its products. Thus the petitioners have altered their position in terms of the policy and legitimately expect the benefit of incentives mentioned in the policy. The petitioner was guided by the fact that the loss that could accrue in the interregnum while expanding its export business would be offset by the promotional benefits. The petitioner company has a 100% EOU division, which is involved in exporting its entire production of gold and gold jewellery, is qualified for applicability of the provisions relating to enhancement of export turnover for its consequential benefits. Thus by virtue of the policy, benefits had accrued to the petitioner company for its exports from the period 1 -4-2003 onwards. When things stood thus, the first respondent has issued a notification as per Annexure-A purported to be in exercise of the powers conferred under [SECTION] of the Act read with para 1.1 of the policy, amending the policy. By virtue of this notification, in calculating the value of exports, the export turnover units operating under EOU scheme or products manufactured by them and exported through DTA units are excluded. Further the guidelines would be applicable to the exports made on or after 1-4-2003. Petitioner contends that the aforesaid amendment and the clarification making it retrospective would altogether change the basic nature and fundamental features of the scheme. The notification at Annexure-B and the consequential public notice as per Annexure-C is unconstitutional, arbitrary and void. The impugned notification making it retrospective is without the authority of law. Paragraphs 2 and 3 of the public notice are illegal, bad and is also without the authority of law. There is no rationale or intelligible differentia in excluding items exported by EOU/free shipping bills from the class of exports goods for the purpose of the scheme. Therefore, they contend the respondents are estopped from going back on their promises and assurances and representations contained in [SECTION] of the policy. Challenging the aforesaid notification and the public notice the petitioners have filed [CASE NUMBER]. During the pendency of the said writ petition, respondent No. 1 promulgated notification No. 38 (RE-2003) 2002-2007 dated 21-4-2004 where under the notification sought to insert certain paragraphs of the public notice dated 28-1-2004 into the policy by correcting notification dated 21-4-2004. Challenging the said notification the petitioner has preferred the other [CASE NUMBER].
4. Respondents after notice have filed their counter. They contend that no promise was held out by the respondent by the issuance of policy as the policy could be amended or rescinded by the respondents at any point of time in public interest. They have denied the so called substantial investments made by the petitioner consequent to the policy in question. They contend that 100% EOUs are abinitio exempted from duties for the inputs, machinery, office equipments, etc., being imported or procured from the domestic market. The impugned notification and public notice have been issued in public interest to deny the benefit of the scheme to those who have resorted to exports of certain categories of goods or exported in a way which would not have been entitled to otherwise. The clarification made always relates back to the date of issuance of the original scheme. Respondent No. 1 is empowered to amend the policy in public interest. The impugned notification and public notice have been issued with view to clarify the aspect as to how incremental growth in export should be reckoned. No policy can ever be static and should the Government feel that circumstances warrant that the policy should be amended or clarified, it has the inherent power to do so. Whenever a policy is changed and a condition is modified or altered or clarified, there can be no question of any promissory estoppel or legitimate expectation which could be claimed against the said amendment or clarification. It is not the case of petitioners that the said notifications are issued against the public interest or they have been made for certain ulterior or oblique motives or that the same is vitiated by any mala fides. Paragraph 3.7.2. Clause (vi) sets out the broad contours or the limits of the said policy without actually explaining the meaning or scope of the same which has now been done by the clarification issued. The substance of the notification brings out the true character and effect of paragraph 3.7.2.1 and does not in any way alter the structure of the original policy which remains the same even now. Duty free imports are available to 100% export units under separate chapter-[SECTION] of the policy. Paragraph 3.7.2.1 is not applicable to 100% export oriented unit who are already enjoying benefits of duty free imports under the said [SECTION] of the policy. The said para is applicable only to other persons who deal in the domestic traffic area. The High Court of Gujarat had an occasion to consider these notifications and the validity of the same has been upheld and, therefore, they contend there is no substance in any of the contentions raised by the petitioner.
5. Petitioner has filed a rejoinder to the additional statement reiterating the contentions urged in the writ petitions. They contend that the impugned notifications have been challenged on the ground of violating [SECTION] and violative of principles of promissory estoppel and legitimate expectation. The benefits of para 3.7.2.1 of the policy accrue to all status holders including the 100% E.O.U. units,. The aforesaid para do not exclude EOU units.
6. Learned Counsel for the petitioner assailing the impugned notifications contend the policy decision contained in para [SECTION] in [SECTION] applies to all status holders and E.O.Us, are not excluded. The impugned notification issued excluding E.O.U. units and gold, silver in any form including plain jewellery thereof from being taking into consideration to calculate the total value of the exports is contrary to the policy decision. When acting on the said policy decision they have altered their positions, made huge investments and reduced. the cost of their products on the basis of which when huge orders are placed and they have exported the products, the impugned notifications would seriously affect the interest of the petitioner. Therefore, the respondents have to be held to their promise and the doctrine of promissory estoppel as well as legitimate expectation squarely applies to the facts of this case. At any rate when the petitioners have altered their position and acted on the representations made by the respondents these notifications cannot be given retrospective effect.
7. Per contra, the Learned Counsel for respondent-1 contends if the object of the exim policy is kept in mind it is clear that the incentives given to an exporter under [SECTION] was not intended to an exporter to whom already 100% benefit of duty has been extended under [SECTION] of the policy. What the respondents proposed to do by these notification is to explain what the aforesaid para meant, from the day it came into force and it is settled that all clarifications are retrospective in nature. [SECTION] of the Act empowers the Government to amend a policy during the course of the policy. There is no vested right in any exporter to claim exemptions, incentives and benefits. The liability to pay duty is not disputed. Only these exemptions and incentives eclipse the liability to pay duty for particular period. Therefore, the Government in public interest has the power to withdraw such incentives and benefits given even during the policy is in force and in such matters the doctrine of promissory estoppel and legitimate expectation have no application. This matter is already concluded by ajudgment of the High Court of Gujarat.
8. Both the Learned Counsel in support of their respective contentions have relied on several judgments. The relevant of them are referred to hereunder:-
The Supreme Court in the case of The [PRECEDENT] held, that, where a person has acted upon representations made in an export promotion scheme that import licences upto the value of the goods exported will be issued, and had exported goods his claim for import licence for the maximum value permissible by the Scheme could not be arbitrarily rejected. Even though the case did not fall within the terms of [SECTION] of the [ACT], it was still open to a party who had acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise was not record in the form of a formal contract as required by [SECTION] of the [ACT]. Under the constitutional set-up no person may be deprived of his right or liberty except in due course of and by authority of law: if a member of the executive seeks to deprive a citizen of his right or liberty otherwise than in exercise of power derived from the law-common or statute-the Courts will be competent to, and indeed would be bound to, protect the rights of the aggrieved citizen.
9. The Supreme Court in the case of [PRECEDENT]., has held that, the appellant has been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the finance minister in his budget speech after considering the financial implications of the grant of the exemption to milk. It was found that the overall benefit of the State's economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand purchase tax with retrospective effect from 1-4-1996 as the respondents cannot in any event readjust the expenditure already made.
10. The Supreme Court in the case of [PRECEDENT]., . dealing with the right of an exporter or an importer held that, the object behind the scheme is to enable the exporter to import raw materials, components etc., required for the purpose of producing goods for export. It is a facility provided by the Government-an incentive. There is no right to advance licence apart from the policy. No citizen has a fundamental right to import, much less import free of duty. His right is only that which is given by the policy. In such a situation the mere fact that the exporter is likely to suffer some loss or prejudice assuming that the said plea is factually true cannot be a ground either for invoking the rule of promissory estoppel or to otherwise bind the Government to apply and adopt the value addition norm in force on the date of application.
11. The Supreme Court in the case of [PRECEDENT], has held that, the power to lay policy by executive decision or by legislation includes power to withdraw the same unless in the former case, it is by mala fide exercise of power or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The Court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is a settled law that the Court gives the large leeway to the executive and the legislature. Granting licences for import or export is by executive or legislative policy. Government would take diverse factors for formulating the policy for import or export of the goods granting relatively greater priorities to various items in the overall larger interest of the economy of the country. It is, therefore, by exercise of the power given to the executive or as the case may be, the legislature is at liberty to evolve such policies. An applicant has no vested right to have export or import licences in terms of the policies in force at the date of his making application. For obvious reasons, granting of licences depends upon the policy prevailing on the date of the grant of the licence or permit. The authority concerned may be in a better position to have the overall picture of diverse factors to grant permit or refuse to grant permission to import or export goods. The decision, therefore, would be taken from diverse economic perspectives which the executive is in a better informed position unless, as we have stated earlier, the refusal is mala fide or is an abuse of the power in which event it is for the applicant to plead and prove to the satisfaction of the Court that the refusal was vitiated by the above factors. When the Government are satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay down new policy. The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilization of its finances in the public interest. The Government are not barred by the promises or legitimate expectations from evolving new policy.
12. A Division Bench of the Gujarat High Court in the case of [PRECEDENT] have upheld the impugned notifications though on the facts of that particular case relief is granted holding that the impugned notifications cannot be retrospective.
13. In exercise of the powers conferred under [SECTION] of the Act, the Central Government has notified the Export and Import Policy for the period 2002-2007. This policy came into force with effect from 1 -4-2002 and shall remain in force up to 31-3-2007 and will be coterminus with the 10th Five Year Plan. The Central Government has reserved the right in public interest to make any amendments to this Policy in exercise of the powers conferred by [SECTION] of the Act. Such amendment shall be made by means of a Notification published in the Gazette of India. The principal objectives of the policy are, to facilitate sustained growth in exports to attain a share of atleast 1 % of global merchandise trade, to stimulate sustained growth by providing access to essential raw materials, intermediates, components, consumables and capital goods required for augmenting production and providing services; to enhance the technological strength and efficiency of Indian agriculture, industry and services, thereby improving their competitive strength while generating new employment opportunities and to encourage the attainment of accepted internationally accepted standards of quality. [SECTION] of the said Policy provides for promotional measures. Clause 9.5.3. of the said Policy defines the "status holder" to mean an Exporter recognised as Exporter House/Trading House by BGAT or other authorities mentioned therein. Clause 3.7.2.1 provides special strategic package for status holders. Among the several facilities which are extended to the status holders, the facility which is the subject matter of these writ petitions is the duty free import entitlement for status holders having incremental growth of more than 25% in FOB value of exports (in free foreign exchange) subject to a minimum export turnover of Rs. 25 crores (in free foreign exchange). The duty free entitlement shall be 10% of the incremental growth in exports. Such entitlement can be used for import of goods, office equipment and inputs for their own factory or the factory of the associate/supporting manufacturer/job worker. The entitlement/goods shall not be transferable.
14. Paragraph 3.2.5 of the Handbook of Procedures makes it clear that the status holders who have achieved more than 25% of growth in the FOB value of exports in the year 2003-04 as compared to the exports made in 2002-03 subject to a minimum export of Rs. 25 crores shall be entitled for duty free credit entitlement certificate at the rate of 10% of the incremental growth in exports. Therefore, all the status holders who have made exports for the period from 1-4-2003 to 31-3-2004 would be entitled to the aforesaid benefits. However, the benefit of the aforesaid scheme would be available to the Status holders with effect from 1 -4-2004.
15. Being a new initiative, a large number of representations were received from Trade Associations/Export Promotion Councils as well as the individual exporters seeking clarifications on various points relating to the implementation of the scheme. At the same time, the Government also received representations that some status holders are trying to increase their export turnover by taking credits for the export of others without putting any significant efforts to increasing exports. Such diversion/enhancement of exports merely to increase benefit under the Scheme in this manner would not lead to the intended objectives of incremental growth in exports. Such transactions amount to misuse of the Scheme. Therefore, it became necessary for the Government to lay down specific norms for the implementation of the scheme. Therefore by notification dated 28-1-2004 several notes were inserted. Note No. 1 was inserted for the purpose of calculating the value of exports. It provided what are the exports, which shall not be taken into account in calculating the value of exports of status holder. One such exports which will not be taken into consideration is export turnover of units operating under SEZ/EOU/EHTP/STPI schemes or products manufactured by them and exported through DTA units, which is the subject matter of these writ petitions.
16. On the same day i.e. on 28-1-2004, an amendment was carried out to the Handbook of Procedure (Volume I). At item No. 2 it was made clear that in terms of Para 3.2.5 of Handbook of Procedures (Volume-I) items mentioned therein would not be taken into account for computation of entitlement and export performance under [ACT]. One such item which is excluded is gold, silver in any form including plain jewellery thereof. This public notice was followed by a gazette notification dated 21 -4-2004 by amendment Chapter-III in paragraph 3.7.2.1 after sub-paragraph (vii) incorporating what is contained in the said public notice. The petitioners in this writ petition have challenged these two items, which according to them has seriously affected their interests.
17. In so far as the power of the Court to interfere with a policy decision of the Government in economic matters is concerned, the law is well settled. The law relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, freedom of religion, etc. The legislature shall be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decisions may not be placed on a high pedestal as legislative judgment in so far as the judicial deference is concerned. In complex economic matters, the every decision is necessarily empiric and it is based on experimentation or what one may call 'trial and error method'. Therefore its validity cannot be tested on any rigid 'a priori' considerations or on the application of any strait-jacket formula. The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court an interfere only if the policy decision is patently arbitrary, discriminatory or malafide. In matters of trade or commerce or economic policy, the wisdom of the Government must be respected and Courts cannot lightly interfere with the same unless such policy is contrary to the provisions of the [ACT] or any law or if such policy is wholly arbitrary.
18. If we look at the policy document as a whole, it is clear in order to boost a sustained economic growth certain new and special facilities were given to the status holders. In other words, they were not entitled to such new and special facilities but for this policy. As is clear from Chapter-Ill it was a promotional measure. Para 3.7.2.1 make it clear if a status holder achieves an incremental growth of more than 25% in FOB value of exports subject to a minimum export turn over of Rs. 25 crores he would be eligible to duty free entitlement of 10% of the incremental growth in exports. He could realise such entitlement in importing capital goods, office equipment and inputs for their own factory etc. It presupposes that he was not eligible for any duty free entitlement till he complies with the requirement mentioned in the said provision. It is in that context, that we have to understand the notification issued on 28-1-2004 clarifying the position. All that has been said in the said notification is, for the purpose of calculating the total value of exports, exports made by EOU will not be taken into consideration. It is because under [SECTION] entire imports made by EOU unit is exempted from payment of duty. In other words, EOU unit is entitled to 100% duty free imports. Therefore, it was never intended that it is on the exports of such EOU a further 10% entitlement for duty free imports is to be granted. The original policy as contained in 3.7.2.1 construed properly in this context, was clear, that in calculating the total turnover of exports, the exports made by EOU cannot be taken into consideration. By the impugned notification a clarification has been issued expressly making it clear what is implicit in the original scheme. Therefore, it is not an amendment. It is settled law, these clarifications always dates back to the original date and therefore the challenge to this particular entry either on the ground of promissory estoppel or legitimate expectation or on the ground of retrospectivity is without any substance.
19. In so far as the challenge to the deletion made in paragraph 3.2.5 of the Handbook of Procedures, which was later endorsed by way of an amendment by virtue of an amendment notification dates 28-4-2004 is concerned, it cannot be said to be clarificatory in nature, it is an amendment. Now the question is, whether such an amendment can be held to be violative of the doctrine of promissory estoppel, legitimate expectation and also suffers from the vice of retrospectivity. In this regard it is necessary to note that [SECTION] of the Act categorically states that the Central Government may from time to time formulate and announce, by notification in the official gazette, the export and import policy and may also, in like manner, amend that policy. Therefore, the power of the Central Government to amend the policy during the currency of the policy finds statutory recognition in [SECTION] of the Act. The policy itself categorically states that the Central Government reserved the right in public interest to make any amendment to this policy in exercise of power conferred by [SECTION] of the Act. The only condition to be fulfilled is that such an amendment shall be made by means of a notification published in the Gazette of India. In the nature of things, this policy has been formulated by the Central Government with the object of stimulating the sustained economic growth. Certain amount of 'trial and error method' is bound to be there. Though this policy will be in force for a period of 5 years, every year the policy is reviewed and the said policy could be changed at any time depending upon the exigencies of the situation and the necessity. In other words, during the currency of the Policy the Government has the power to alter, modify and change the Policy. The notifications sets out, the circumstances under which the amendment is brought about. It is not in dispute that the purpose stated therein is not in public interest. What is stated therein is what has already come to the notice of the Government and the reasons are only illustrative. After taking note of the working of this policy, if the Government in its wisdom reviews/alters the Policy and takes into consideration possible future misuse thereof, and amend the policy in public interest, the same cannot be found fault with.
20. It is not in dispute that the petitioner is yet to get the benefits of the policy. The notification is issued before the expiry of the period. What is granted to a status holder is only an incentive. An incentive is not a fundamental right. It is a facility provided by the Government. No citizen has a fundamental right to import, much less import free of duty. His right is only that which is given by the policy. The status holders have no vested rights for such an incentive and during the interregnum if an incentive announced by the Government is sought to be withdrawn in public interest, it cannot be said that a valuable right accrued to a status holder is sought to be withdrawn retrospectively. The amendment carried out to the incentive scheme do not impose any restriction on the petitioner's right to carry on business of exporting goods.
21. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The Court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is a settled law that the Court gives the large leeway to the executive and the legislature. Applicants have no vested right to have export or import licences in terms of the policies in force at the date of making the application. When the Government is satisfied, that change in the policy was necessary in the public interest, they are entitled to revise the policy and lay down new policy. Except asserting in the writ petition, that on the representation made by the Government in the Policy background; the petitioner altered his position; entered into several contracts; made huge investment by way of men and machinery; incurred huge amounts; by reducing the prices of the goods to be exported he has sustained loss; the petitioner has not set out the particulars of the contracts entered into; amounts invested in machinery and men; exports made; and its value. The respondents have denied those allegations. In fact the petitioners have also filed a rejoinder. Even there, these particulars are conspicuously missing. Mere assertion that he has altered the position to his detriment because of the representation has remained as a plea only. Unless the material is placed before the Court to substantiate the said plea, the petitioner is not entitled to any benefit based on the plea of promissory estoppel or legitimate expectation. 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 bad 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. 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 rights 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 the equity so demands, if it could 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, assurances and representations.
22. Under these circumstances, I do not find any merit in these writ petitions. Accordingly, the writ petitions are dismissed. No costs.