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Rajasthan High Court · body

2002 DIGILAW 211 (RAJ)

Mahaveer Oil Industries v. State

2002-01-25

RAJESH BALIA

body2002
JUDGMENT 1. - The controversy raised in this petition was noticed by this Court during the course of hearing on 8th May, 2001. The order dated 8.5.2001 reads as under "Heard learned counsel for the parties. Learned counsel for the petitioner contends that controversy raised in this case is squarely governed by the decision of this Court rendered in S.B. Civil Writ Petition 3984/96 passed on 11th August, 1998 and followed in S.B. Civil Writ Petition No. 1389/94 M/s. Shree Jindat Oil Mills v. State of Rajasthan & Ors. decided on 15.2.99 . Learned counsel for the respondents urged that in the aforesaid two cases the controversy has not been decided that where the industry in question has not only been sanctioned but has in fact been set up before the amendment in the subsidy scheme, it can still avail the benefit of the amendment in the scheme made subsequent to that date. He points out that aforesaid two orders are founded on the premise that subsidy has been denied on the basis of sanctioning of project prior to that. Learned counsel for the petitioner wants further time to seek instruction and to gather information about the Supreme Court decision in Sri Ram Oil Mills case which according to him has relevant bearing on the controversy raised. Put up on 18.5.2001 as prayed." 2. The petitioner's unit is a small scale industrial unit, which was granted subsidy as eligible New Industrial Unit under the Notification dated 5.9.1990. When the subsidy scheme under Notification dated 5.9.90 was amended vide Notification dated 29th August, 1992, extending additional subsidy to New eligible industrial units, the petitioner made an application for release of additional subsidy under the said Notification of 1992. But the said application was rejected on the ground that the unit which has come into existence prior to 29th August, 1992, is not eligible for the benefit, because it cannot be considered a New Industrial Unit which has come into existence on or after 29.8.92. This led to filing of present writ petition. 3. But the said application was rejected on the ground that the unit which has come into existence prior to 29th August, 1992, is not eligible for the benefit, because it cannot be considered a New Industrial Unit which has come into existence on or after 29.8.92. This led to filing of present writ petition. 3. It has been contended by learned counsel for petitioner that the petitioner unit is entitled to avail the additional subsidy in terms of Notification dated 29th August, 1992 extending benefit of additional subsidy to new and eligible small scale industrial units in the no industry districts and tribal sub-plan blocks as well as to the new and eligible large and medium industrial units located in no industry districts and tribal sub-plan blocks. While the additional subsidy was to be offered at the rate of 10% of the eligible fixed capital investment to the new and eligible small scale industrial units, subsidy in the case of large and medium industrial units was confined to 5% of the fixed capital investment. He contends that the Notification extends additional benefits to all such units eligible for subsidy under parent Notification dated 5.9.90, if it is established in "No Industry District" or Tribal Sub-Plan Blocks. It is not restricted to New Industrial Units coming into existence after 29.8.92 only. 4. On behalf of Revenue it was contended that benefit under Notification dated 29.8.92 is not retrospective and therefore it cannot be extended to unit coming into existence prior to 29.8.92. 5. I am of the opinion, after considering the subsidy scheme notified vide Notification dated 5th September, 1990 (Annex. 1) and the Notification dated 29th August, 1992 (Annexure 4), that the contention of the petitioner is well founded. Annexure 4 Notification dated 29th August, 1992, is merely an amendment in the earlier Notification dated 5th Sept., 1990. Clause 3 of the Notification of 29th August, 1992 which reads as under, adds a new provision in the existing Scheme apart from other amendments by substituting and adding other provisions in the scheme with which we are not presently concerned.3. The following new sub-clause (d) shall be added after sub-clause (c) of clause 5 of the Scheme "(d) New and eligible Small Scale Industrial Units in the No Industry Districts and Tribal Sub-Plan blocks will be entitled for an additional subsidy @ 10% of the eligible fixed capital investment or Rs. The following new sub-clause (d) shall be added after sub-clause (c) of clause 5 of the Scheme "(d) New and eligible Small Scale Industrial Units in the No Industry Districts and Tribal Sub-Plan blocks will be entitled for an additional subsidy @ 10% of the eligible fixed capital investment or Rs. 10.00 Lakhs whichever is less. New and eligible large and medium industrial unit located in No Industry Districts and Tribal Sub-Plan Blocks will be entitled for an additional subsidy @ 5% of the eligible fixed capital investment or Rs. 5.00 Lakhs whichever is less." 6. Apparently, this is a provision added for extending additional subsidy to the new and eligible industrial units at different rates to the new and eligible small scale industrial units on the one hand and new and eligible large and medium industrial units on the other. This is not an independent Notification granting independent benefit. The above clause has been inserted in the Notification dated 5.9.90 and on such insertion it has become part of said Notification. 7. The "New Industrial Unit" has been defined for the purposes of the Scheme notified under Notification dated 5.9.90 under clause 4(h) to mean an industrial unit set up during the operative period of the Scheme. It was further explained in the definition that the industrial unit shall be deemed to have been set up during the operative period of the scheme if it commences production on or after 1.4.90 and found eligible under the Scheme. It further clarifies that the date of commencement of commercial production will be the 61st day after the day on which raw material for the first time put in the process of production including trial production. 8. There is no dispute about the fact that within the meaning of this clause the petitioner was considered a new industrial unit and has been granted subsidy in the first instance at the rate in the case of a small scale industrial unit. The amendment by Notification dated 29th August, 1992 is only for extending additional subsidy to the new industrial units which in the context of the Scheme in which provision has been made, must be referable to the definition ordinarily. The amendment by Notification dated 29th August, 1992 is only for extending additional subsidy to the new industrial units which in the context of the Scheme in which provision has been made, must be referable to the definition ordinarily. I find that if it is referred to the New Industrial Unit, there is no repugnancy in the context for not considering the petitioner within the definition of New Industrial Unit as given in the definition clause. When the petitioner is a 'New Industrial Unit' under Notification dated 5.9.90, on insertion of clause (d) in Para 3 of the Subsidy Scheme 1990, the 'New Industrial Unit' referred to in new clause is referable to 'New Industrial Unit' within the meaning of the Scheme. It does not divide New Industrial Unit under the Scheme in to categories. Question of retrospectivity of Notification dated 29.8.92 does not arise. On insertion of clause (d) in Para 3, it operates prospectively for availing benefit by all industrial units which are New Industrial Units under the Scheme which have been installed in 'No industry area' and Tribal Sub-Plan Blocks, within the operative period of Scheme of 1990 within the meaning of Para 4(h). 9. Moreover, I find that the three decisions referred to by learned counsel for the petitioner in S.B. Civil Writ Petition No. 1389/89-Shree Jindal Oil Mill v. State & Ors., decided on 15.2.99 , S.B. Civil Writ Petition No. 3984/96, Jadodia Cement v. State & Ors., decided on 11th August, 1998 and S.B. Civil Writ Petition No. 171/97-Shri Ram Oil Mills v. State & Ors. decided on 11.8.98 , the same issue was raised in the same set of circumstances and the Court held that those petitioners to be entitled of additional subsidy in terms of Notification dated 29th August, 1992. These decisions fortify me in my conclusion. 10. In the aforesaid circumstances, petition is allowed and the order refusing to consider the petitioner's industry for grant of additional subsidy under Notification dated 29.8.92 is quashed and the respondents are directed to consider the case of the petitioner for grant of subsidy under the Notification dated 5th Sept., 1990 as amended by Notification dated 29th August, 1992 by considering it New eligible Industrial Unit under the Scheme of 1990 as amended by Notification dated 29.8.92 and release subsidy if it is not otherwise found ineligible to receive the subsidy. The application of the petitioner for grant of subsidy shall be decided within a period of two months from date of submission of the certified copy of this order or service of writ, whichever is earlier.No orders as to costs.Writ Petition allowed. *******