G.T. Nanavati, J.
1. The Ahmedabad Advance Mills Ltd. (Tata Metals and Strips Ltd. since 3rd February, 1989), has a metals and special alloy steel division at Navsari, where it is engaged in manufacturing cold rolled steel strips. In 1970, it embarked upon expansion of the said unit by setting up a plant for bright annealing and grinding of the cold rolled steel strips. On 31st March, 1982, it invested for that purpose Rs. 1,82,07,308, approximately. It also commenced production from 31st March, 1982.
2. With a view to encourage establishment of industries in the State, and to achieve the object of development of small, medium and large scale industries in rural areas and backward areas to achieve a more balanced growth, and decongestion of industries from developed areas and cities like Ahmedabad, Baroda and Surat, the Government of Gujarat announced two schemes by two separate resolutions passed on 22nd December, 1977. By the first resolution, it framed a scheme called the State Cash Subsidy Scheme for Industries. By the second resolution, it framed a scheme for sales tax exemption and grant of loan in respect of amount of sales tax paid on sales of finished products. Under the scheme, exemption from sales tax was to be granted to all new small-scale industrial units commissioned on or after 1st November, 1977. Interest-free sales tax loan benefit was to be extended to medium and large scale industrial units commissioned during the period of the scheme and for expansion and diversification of the existing units. All the three schemes became effective from 1st November, 1977.
3. On 27th August, 1980, the Government reviewed the package of incentives introduced by the said two resolutions and decided to introduce a new scheme of sales tax benefits in lieu of the then existing sales tax exemption/loan scheme with effect from 1st June, 1980. The cash subsidy scheme of the earlier package was retained as it was. The new scheme was called 'The New Sales Tax Incentive Scheme for Industries'. It become effective from 1st June, 1980 and was to remain in force for a period of five years. Under the scheme, new industrial projects, including expansion/diversification by existing units commissioned (i.e., which had started commercial production) on or after 1st June, 1980, were eligible to opt for new sales tax benefit in lieu of old sales tax incentive scheme. Areas of applicability, list of growth centres and the list of industrial excluded from the purview of the scheme remained the same as under the old scheme. Under the new scheme, all eligible industrial units were given an option to choose one of the two sales tax incentives, viz., (a) sales tax exemption incentives, or (b) sales tax deferment incentives. If a new industrial unit had opted for the scheme of Sales Tax Deferment, then in case of such unit recovery of sales tax payable on sales of its products was to be deferred to the extent and for the period specified in that resolution. By its resolution dated 18th March, 1982, the Government laid down conditions for availability of such benefit.
4. It is the case of the petitioner that relying upon the said sales tax incentive schemes, it made substantial investment of about Rs. 2 crores in the specified area. The investment was made between 1979 and January, 1982. The project was commissioned, i.e., the commercial production had started on 31st March, 1982. It thus became entitled to the benefits of the said sales tax incentive schemes; notwithstanding the Government resolution dated 7th January, 1982, by which cold rolled steel strips and re-rolling of steel including stainless steel industries were declared as not eligible for any incentives contained in Government resolutions and circulars mentioned in that resolution (including resolution dated 22nd December, 1977 and resolution dated 27th August, 1980), particularly because in the subsequent Government resolution dated 18th March, 1982, these industries were not described as ineligible for such benefits. It had opted for sales tax deferment benefit. It, therefore, applied to the Industries Commissioner for eligibility certificate on 23rd September, 1982. The Industries Commissioner rightly granted the eligibility certificate on 13th April, 1983, mentioning therein that the said eligibility certificate was effective from the date of commissioning of the plant, i.e., 31st March, 1982, and that the amount of sales tax deferment on sales of the petitioner's products would be up to an upper limit of Rs. 4 lacs with effect from 31st March, 1982 to 30th March, 1988. It then applied on 30th April, 1982, to the Assistant Commissioner of Sales Tax for deferment certificate for the period and up to the limits mentioned in the eligibility certificate; but the said request was rejected by him and instead the sales tax deferment certificate effective for the period between 31st March, 1982 and 14th September, 1982, only was issued, in view of the Government resolution dated 15th September, 1982, whereby cold rolled steel strip industry was included in the list of prohibited or ineligible industries. Thus, it was illegally deprived of the full benefit to which it was entitled to under the sales tax deferment scheme. It has, therefore, filed this petition and wants this Court to quash the resolutions dated 7th January, 1982 and 15th September, 1982 to the extent they include cold rolled steel strips industry therein, and to direct the respondents, i.e., the State of Gujarat and the Assistant Commissioner of Sales Tax to issue deferment certificate effective for the period between 31st March, 1982 and 30th March, 1988 and up to the upper limit of Rs. 40 lacs. The petitioner has also prayed that the respondents be directed to refund Rs. 6,57,853 to the petitioner being the amount of sales tax paid by it in respect of the finished goods manufactured by it for the period 31st March, 1982 to 14th September, 1982.
5. Three contentions have been raised by the learned counsel appearing for the petitioner. First contention is that on combined reading of Government resolution dated 27th August, 1980, 7th January, 1982, 18th March, 1982 and 15th September, 1982, so far as sales tax deferment scheme is concerned, the petitioner's industry cannot be said to have been excluded till 15th September, 1982, and if they are construed otherwise, then that would create an inconsistency between the resolution dated 7th January, 1982 and resolution dated 18th March, 1982. In the alternative, his second contention is that even if it is held that the petitioner's industry, i.e., cold rolled steel strips industry, was excluded from the benefit of the sales tax deferment scheme of 7th January, 1982, even then the resolution dated 18th March, 1982, which was subsequent in point of time, did not mention the cold rolled steel strips industry as a prohibited or ineligible industry for the benefit of sales tax deferment scheme, and that made the petitioner believe that the benefit was still available to such industry. The Industries Commissioner was also of that view and by issuing the eligibility certificate valid for the period up to 30th March, 1988, an assurance was held out to the petitioner that the sales tax deferment benefit would be made available to it till that date. His third contention is that neither resolution dated 7th January, 1982 nor resolution dated 15th September, 1982, can be made applicable to the petitioner and others like it, who had already started acting upon the earlier promise contained in the resolution dated 27th August, 1980 and made substantial investment and altered their position to such an extent that they would suffer considerably, if the benefits under the scheme are not made available to them. In other words, the contention is that since the petitioner, relying upon the promise or the assurance contained in the 1980 scheme, made substantial investment by way of expansion of its industry, and thus altered its position, the State cannot now be permitted to go back upon its promise or assurance, and this Court, applying the equitable doctrine of promissory estoppel, should restrain the State from doing so.
6. So far as the first two contentions are concerned, in our opinion, they are misconceived inasmuch as notwithstanding the Government resolution dated 7th January, 1982, sales tax deferment benefit has been given to the petitioner till 14th September, 1982. As it started commercial production on 31st March, 1982, admittedly, it was not entitled to any benefit before that period. Moreover, the benefit which has been granted for the period up to 14th September, 1982, is not sought to be taken away by the respondents and it is not their contention that it was wrongly granted to the petitioner. It is, therefore, not necessary to consider the effect of the resolution dated 7th January, 1982, nor the effect of the resolution dated 18th March, 1982, which did not mention cold rolled steel strip industry as one of the prohibited or ineligible industries.
7. In support of his contention that equitable doctrine of promissory estoppel would apply to the facts of this case, the learned counsel has heavily relied upon the decisions of the Supreme Court in Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh : 118ITR326(SC) and Union of India v. Godfrey Philips India Ltd. : 158ITR574(SC) . He has also relied upon the decisions of the Supreme Court in Pournami Oil Mills v. State of Kerala : 165ITR57(SC) and Assistant Commissioner of Commercial Taxes v. Dharmendra Trading Co. : 172ITR395(SC) , as both the cases were cases in which entrepreneurs starting new industries were given sales tax concessions under the incentive schemes and it was held that in such cases promissory estoppel can be pleaded against the Government. He has also relied upon the decision of this Court in the case of Kothari Oil Products Co. v. State of Gujarat (1982) 23 (1) Guj LR 20.
8. In Motilal Padampat Sugar Mills' case : 118ITR326(SC) , the Supreme Court thoroughly examined the doctrine of promissory estoppel and observed that it is a principle evolved by equity to avoid injustice and though commonly named 'promissory estoppel', it is neither in the realm of contract nor in the realm of estoppel. The true principle of promissory estoppel seems to be that where one party has by his words or conduct 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 the 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 inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. The Supreme Court further pointed out that the doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the courts for doing justice and there is no reason why it should be given only a limited application by way of defence. It can also be used as a cause of action. The Supreme Court also observed that it is not necessary, in order to attract the applicability of the doctrine of promissory estoppel, that the promisee, acting in reliance on the promise, should suffer any detriment. What is necessary is only that the promisee should have altered his position in reliance on the promise. The Supreme Court has further observed that the doctrine of promissory estoppel has also been applied against the Government and the defence based on executive necessity has been categorically negatived. Where the Government makes a promise knowing or intending that it would be acted upon by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by article 299 of the Constitution. It is elementary that in a republic governed by the rule of law, no one, howsoever high or low, is above the law. Every one is subject to the law as fully and completely as any other and the Government is no exception. It is also observed therein that since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires.
9. As the law regarding promissory estoppel is considered settled both by the learned counsel appearing for the petitioner and the learned Advocate-General, it is not necessary to refer to the other decisions relied upon by the learned counsel for the petitioner. What is, however, submitted by the learned Advocate-General is that when the court is called upon to grant relief on the basis of equitable doctrine of promissory estoppel first thing that the court should examine is what is the nature of the promise or the assurance given by the promisor. If the assurance held out is conditional, in the sense that it is subject to modification or withdrawal at any time, then in such a case the principle of waiver would be attracted, and no relief based on the doctrine of promissory estoppel should be granted by the court. The learned Advocate-General drew our attention to the 1980 scheme as the sales tax deferment incentives for which the petitioner opted were offered under that scheme. That is the reason why the petitioner has also stated in the petition, after referring to the 1977 schemes, that they are not material for the purpose of this petition. Paragraph 3 of that resolution is relevant and, therefore, it is set out below :
'New Industrial project including expansion/diversification by existing units commissioned (i.e., which have started commercial production) on or after 1st June, 1980, shall be eligible to opt for sales tax benefits under this scheme, in lieu of old sales tax incentive scheme. If however any such project has already obtained any sales tax benefit under the old scheme, it will continue to receive the benefit that it may be entitled under the old scheme only and will be not entitled for the scheme. Areas of applicability and the list of growth centres, etc., will remain as per old sales tax incentive scheme. The list of industries excluded from the purview of this scheme will be the same as per the old scheme. The Government may review this list from time to time and remove, amend, or add any items from and to the said list. Similarly the Government may review the scale of incentives for any industry. The Government may also review the growth centres and areas of applicability from time to time. In short these incentive are given under the discretionary powers of the State Government and hence they do not create any claims against the Government enforceable in a court of law.'
10. The learned Advocate-General submitted that in this scheme itself it is declared by the Government that the list of industries excluded from the purview of the scheme would be reviewed by it from time to time, and that it might remove, amend, or add any item from and to the said list. The Government also made it clear that the scale of incentives for any industry, the areas of applicability and the list of growth centres were also likely to be reviewed from time to time. Over and above that, the Government had also made it clear that the incentives were given under the discretionary powers of the State Government and they would not create any claim against the Government enforceable in a court of law. Thus, the Government had made it known that the benefit which was to be available to the new industrial units could be taken away any time. The assurance was thus a conditional assurance and not an unqualified one. Moreover, in view of the declaration made by the Government that the incentives were given under its discretionary powers and that those incentives were not intended to create any claim against it enforceable in a court of law, it should be held that all those who relied upon the assurance and altered their position had waived their right to initiate any legal action against the Government and, therefore, it should also be held that the petitioner is not entitled to the equitable relief based upon the doctrine of promissory estoppel.
11. Though it is true that in the scheme itself it is declared that the Government might review the list of industries excluded from the purview of the scheme from time to time and remove, amend or add any item from and to the said list, it cannot be said that the assurance which the Government held out under the scheme was a conditional one. As rightly pointed out by the learned counsel for the petitioner, by stating such a thing in the resolution what the Government had done was merely to indicate the power which it possesses. Thus, by stating like that in the resolution, what the Government did was to make explicit what was implicit. On the basis of such a statement in the scheme, it is not possible to hold that the assurance which the Government held out was that the new industrial unit will continue to get the benefit under the scheme so long as it is an industry not included in the list of industries excluded from the purview of the scheme. The assurance held out by the Government was not a limited one in the sense that the benefit under the scheme was to be available to the new units so along as that industry was not excluded from the purview of the scheme. If a new unit had set up an industry which was not excluded from the purview of the scheme and had started commercial production before it came to be included in that list, it would be unreasonable and unjust to deprive that new industrial unit of the benefit of the scheme even though it had become eligible under the scheme and had started receiving benefits under the scheme. A simultaneous declaration made by the Government that giving of incentives will not create any claim enforceable in a court of law cannot make such an action proper or just; and cannot oust the application of the doctrine of promissory estoppel. It is, therefore, not possible to hold that the assurance which was held out by the Government was conditional as contended by the learned Advocate-General.
12. The observations of the Supreme Court in paragraphs 8 and 9 of the decision in the case of Shri Bakul Oil Industries v. State of Gujarat  64 STC 304 : : 165ITR6(SC) are not of any help to him. In that case, the Government notification issued under section 49(2) of the Act exempting wholly or partly from payment of sales tax or purchase tax, certain specified classes of sales and purchases described in the entries at Sr. Nos. 1 to 52 in the Schedule, did not provide any period of exemption. The notification did not stipulate as to how long the exemption was to remain in operation. In that contest, the Supreme Court observed that the exemption granted under the notification was to have operative force only till such time that the exemption was allowed to remain before being withdrawn by a subsequent notification. It was further observed that the State Government was under no obligation to grant exemption from sales tax. Under the circumstances, the persons who got the benefit, could not have insisted upon the State Government to grant exemption to them from payment of sales tax. Thus what is held in that case is that the exemption, which was granted by the Government, was only by way of concession and that a concession can be withdrawn at any time and no time-limit can be insisted upon before the concession is withdrawn. What is required to be noted is that the exemption which was granted by the Government in that case was an unilateral act where nothing was expected from the person acting upon it. Moreover, as pointed out by the Supreme Court in that case, the power of revocation or withdrawal is subject to one limitation that the power cannot be exercised in violation of the rule of promissory estoppel. In other words, the Government can withdraw an exemption granted by it earlier if such withdrawal can be done without offending the rule of promissory estoppel and depriving an industry entitled to claim exemption from payment of tax under the said rule. If the Government grants exemption to a new industry and if on the basis of the representation made by the Government an industry is established in order to avail of the benefit of exemption, the new industry can legitimately raise a grievance that the exemption cannot be withdrawn except by means of legislation.
13. In our opinion, on true interpretation of the resolution of 1980, it will have to be held that the Government did give a promise to the entrepreneurs that if a new unit or project was set up on the basis of the assurance held out under the scheme, and that the new industrial project was commissioned on or after 1st June, 1980, then it was entitled to the benefits available under that scheme, if by the time it was commissioned, i.e., by the time it commenced commercial production, the said industry was not included in the list of excluded industries. As the scheme was operative for a period of five years only from 1st June, 1980, it will have to be further held that the assurance of benefits was available to those new industrial units or projects which had started commercial production on or after 1st June, 1980, but before 31st May, 1985, and which were not excluded earlier from the benefits of the scheme. So far as the petitioner is concerned, the petitioner had started commercial production on 31st March, 1982. The industry in which it was engaged came to be included in the list of excluded industries on 15th September, 1982, that is after it started commercial production, and as we are not called upon to decide in this case whether it stood excluded by the resolution dated 7th January, 1982, it will have to be held that the petitioner was entitled and continued to remain entitled to the sales tax deferment benefit under the scheme for the full period, if other conditions were satisfied by it. The 2nd respondent was, therefore, clearly in error in granting sales tax deferment certificate effective for the period between 31st March, 1982 and 14th September, 1982, only. In the view that we have taken, the petitioner will be entitled to the refund of the amount paid by it by way of sales tax in respect of the finished goods manufactured by it between 31st March, 1982 and 14th September, 1982.
14. In the result, this petition is allowed. A writ of mandamus shall issue directing respondent No. 2 to issue sales tax deferment certificate to the petitioner effective for the period between 31st March, 1982 and 30th March, 1988. We are granting this relief even though the said period has expired because the petitioner can, even now, get certain benefits made available under the scheme. The respondents shall refund a sum of Rs. 67,57,853 (subject to verification) which the petitioner has paid by way of sales tax on the sales of finished goods made by it between 31st March, 1982 and 14th September, 1982. Rule is made absolute accordingly with no order as to costs.
15. Petition allowed.