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2017 DIGILAW 597 (GUJ)

SAL Steel Limited v. State of Gujarat

2017-03-16

B.N.KARIA, M.R.SHAH

body2017
JUDGMENT M.R. Shah, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of writ, order or direction, directing the respondents-authorities to extend the period of Sales Tax Eligibility Certificate for a further period of five years for un-utilized amount of Rs. 57.82 Crores out of Rs. 188.15 Crores, and to consider the expenses of Rs. 257.55 Crores which were incurred and paid upto 12th April 2007 instead of Rs. 213.58 Crores, being the period of eighteen months from the date of commencement of commercial production i.e., 12th October 2005. 2. Facts leading to the present petition, in nutshell, are as under:- 2.1 That, on account of devasting earthquake which shook the entire State of Gujarat and more particularly, the District of Kutch and consequently, the economic development of Kutch region had come to a major halt, in an attempt to give impetus to the economic development and for creating better opportunities of employment and environment of Industrial Development, the respondent-State vide its Resolution dated 9th November 2001 announced a sales-tax incentive scheme known as, "Incentive Scheme 2001 for Economic Development of Kutch District" [hereinafter referred to as, "the Scheme"] and thereby invited existing industrial undertakings and new industries to set-up industrial units in the said district by promising benefit of Sales-tax exemption or Sales-tax Deferment Eligibility Fixed Capital Investment under Section 49[2] of the Gujarat Sales Tax Act, 1969. 2.2 That, the period of the Scheme was initially notified from 31st July 2001 to 31st October 2004 which came to be extended further by two Notifications dated 13th September 2004 and 7th January 2005 by which the applicability of the Scheme was extended upto 31st December 2005. 2.3 That, the petitioner-Company is engaged in manufacture of sponge iron, ferro alloys and SS/MS round, flat, angles and other structural steel pig iron. That, the petitioner decided to set-up a Unit for the manufacturing of above products in the Kutch district. That the petitioner-Company accordingly entered into a Memorandum of Understanding with the State Government and proposed to set-up projects involving investment of approximately Rs. 2,000 Crores. That, the petitioner decided to set-up a Unit for the manufacturing of above products in the Kutch district. That the petitioner-Company accordingly entered into a Memorandum of Understanding with the State Government and proposed to set-up projects involving investment of approximately Rs. 2,000 Crores. It is the case on behalf of the petitioner that as per the Scheme, the petitioner-Company applied for Sales Tax Exemption [Remission of Tax] and pursuant thereto, the petitioner-Company was initially given Sales Tax Exemption [Remission of Tax] Certificate to the tune of Rs. 53.39 Crores on 23rd February 2007 and it was subsequently enhanced to Rs. 188.15 Crores by final Eligibility Certificate dated 6th November 2008. 2.4 That thereafter, the petitioner-Company was registered as a Sick Industrial Undertaking under the Board of Financial Reconstruction. At this stage, it is required to be noted that so far as the first prayer of the petitioner i.e., to extend the period of Sales Tax Eligibility Certificate for a period of five years for unutilized amount of Rs. 57.82 Crores out of Rs. 188.15 Crores is concerned, in wake of the subsequent development, the cause does not survive. 2.5 It is the case on behalf of the petitioner-Company that thereafter, the Company wrote a letter on 18th February 2015 requesting the Industries Commissioner to extend the Sales Tax Exemption Certificate for a further period of five years to give the benefit of eligible assets, which were created and paid upto 11th April 2007, being the period of 18 months from the date of commercial production [i.e., 12th October 2005]. 2.6 At this stage, it is required to be noted that the petitioner-Company went in for commercial production on and around 12th October 2005. It is the case on behalf of the petitioner-Company that thereafter though the petitioner Company was entitled to VAT Incentive to the extent of Rs. 1,16,43,38,399/- as on 1st April 2011, the Deputy Commissioner of Commercial Tax, while passing assessment order dated 31st March 2016, raised demand of Rs. 2,34,72,290/- which inter alia includes tax demand of Rs. 72,89,531/-, interest of Rs. 52,48,462/- and penalty of Rs. 1,09,34,297/-. It is the case on behalf of the petitioner that while raising the said demand, it has been observed in the assessment order that the total tax payable is of Rs. 7,99,52,981/- and additional tax of Rs. 1,93,16,671/-. 2,34,72,290/- which inter alia includes tax demand of Rs. 72,89,531/-, interest of Rs. 52,48,462/- and penalty of Rs. 1,09,34,297/-. It is the case on behalf of the petitioner that while raising the said demand, it has been observed in the assessment order that the total tax payable is of Rs. 7,99,52,981/- and additional tax of Rs. 1,93,16,671/-. Out of this tax liability, the remission of tax available on manufactured goods under Section 41 of the Act is only Rs. 7,65,46,403/-. It is the case on behalf of the petitioner that the respondents have not considered the expenses of Rs. 257.55 Crores which were incurred and paid upto 11th April 2007, instead considered the expenses of Rs. 213.58 Crores, being paid within 18 months from the date of commercial production i.e., 12th October 2005, which is absolutely unjust, improper and against the terms and conditions of the Incentive Scheme 2001. It is the case on behalf of the petitioner that the State Government/respondents have considered the investment to the extent of Rs. 213.88 Crores incurred upto 31st December 2005 only. It is the case on behalf of the petitioners that as per the Scheme, more particularly Clause 3.8 thereof, even the investment made during the period of 18 months from the date of commercial production i.e., 12th October 2005 is required to be considered while granting the tax exemption benefit under the Scheme i.e., expenses of Rs. 257.55 Crores incurred and paid upto 11th April 2007 and instead a sum of Rs. 213.58 Crores has been considered, being the expenses incurred upto 31st December 2005 only. It is the case on behalf of the petitioner-Company that number of representations have been made, however, the same have not been responded to and the expenses incurred upto 11th April 2007, being the period of 18 months from the date of commercial production i.e., 12th October 2005 has not been considered while granting tax exemption benefit under the Scheme, the petitioner has preferred this Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs. 3. As observed hereinabove, the first prayer i.e., to direct the respondent authorities to extend the period of Sales Tax Eligibility Certificate for a further period of five years for un-utilized amount of Rs. 57.82 Crores, out of Rs. 3. As observed hereinabove, the first prayer i.e., to direct the respondent authorities to extend the period of Sales Tax Eligibility Certificate for a further period of five years for un-utilized amount of Rs. 57.82 Crores, out of Rs. 188.50 Crores is concerned, in view of the subsequent development, the cause does not survive, and therefore, the only question which is required to be considered is whether the petitioner-Company is entitled to tax exemption benefits on the investment made after 31st December, 2005 but before 12th April, 2007 i.e., the investment made during the period of 18 months from the date of commencement of commercial production i.e., 12th October, 2005 or not. 4. Shri S.N. Soparkar, learned Senior Advocate has appeared on behalf of the petitioners and Shri Kamal B. Trivedi, learned Advocate General has appeared on behalf of the respondents-State. 5. Shri S.N. Soparkar, learned Senior Advocate appearing on behalf of the petitioners has vehemently submitted that the case of the petitioners will fall under the third category of Industrial Units; as mentioned in Clause 3.8 of the Scheme i.e., the Industrial Units having project cost exceeding Rs. 10 Crores. It is submitted that the aforesaid fact is not in dispute. It is submitted that considering Clause 3.8 of the Scheme, in case of Industrial Units exceeding Rs. 10 Crores, assets acquired within a period of 18 months from the date of commencement of the commercial production shall be considered eligible for the purpose of incentives. It is submitted that therefore, whatever the amount/whatever expenditure incurred by the petitioners Company and whatever investment is made and/or assets acquired within the period of 18 months from 12th October, 2005; being the period of 18 months from the date of commercial production, the petitioner-Company is entitled to the benefits of Sales Tax exemption on the amount incurred/expenses incurred by the petitioners upto 11th April, 2007. It is submitted that the petitioner-Company had incurred expenditure of Rs. 257.55 Crores upto 11th April, 2007, and therefore, the petitioner-Company is entitled to the benefits of incentive/Sales Tax exemption on the Capital Investment made up to 11th April, 2007 i.e., Rs. 257.55 Crores. It is submitted that the respondents authorities are not justified in considering only the expenses of Rs. 213.58 Crores i.e., the investment made only upto 31st December, 2005. 257.55 Crores. It is submitted that the respondents authorities are not justified in considering only the expenses of Rs. 213.58 Crores i.e., the investment made only upto 31st December, 2005. For the said reasons, Shri S.N. Soparkar, learned senior advocate appearing on behalf of the petitioners has heavily relied upon Clause 3.8 of the Scheme (Gujarati version). 5.1 It is further submitted by Shri Soparkar, learned Sr. Advocate for the petitioners that the third part of Clause 3.8 is with respect to the Industrial Units investing more than Rs. 10 Crores is concerned, it is in two parts i.e., (i) for the period upto 31st December, 2005 or (ii) where the assets are acquired within a period of 18 months from the date of commencement of commercial production. It is submitted that in the first category i.e., in case of Small Industrial Units, the assets acquired upto the period of six months from the date of commencement of production, or till completion of the scheme (whichever is earlier between the two) shall be considered eligible for the purpose of incentives. It is submitted that even in the case of medium and large scale Industrial Units, the assets acquired upto the period of one year from the date of commencement of production, or till the date of completion of the scheme (whichever is earlier between the two) shall be considered eligible for the purpose of incentives. It is submitted that, however, no such words are used "whichever is earlier between the two" - in case of Industrial Units having project cost exceeding Rs. 10 crores. It is submitted that in case of industrial units having project cost exceeding Rs. 10 crores, the words, "whichever is earlier between the two" are missing, and therefore, the assets acquired within the period of 18 months from the date of commencement of production or till the completion of the said scheme, shall be considered eligible for the purpose of incentives. It is submitted that therefore, on reading Clause 3.8 of the Scheme as it is, as in the present case the date of commencement of commercial production is 12th October, 2005, and therefore, the petitioner is entitled to Sales Tax exemption/incentives on the total assets acquired within the period of 18 months from 12th October, 2005 i.e., up to 11th April, 2007 viz., Rs. 257.55 Crores. 257.55 Crores. It is submitted that therefore, as such, the petitioner-Company is entitled to Sales Tax incentives/benefits on the total expenditure of Rs. 257.55 Crores, which are incurred and paid up to 11th April, 2007, instead of Rs. 213.58 Crores, being the period of 18 months from the date of commercial production i.e., 12th October, 2005. 5.2 It is further submitted by Shri S.N. Soparkar, learned Counsel appearing on behalf of the petitioners determination of eligible amount of Rs. 188 Crores i.e., considering the investment up to 31st December, 2005 is just contrary to Law laid down by the Division Bench of this Court in Special Civil Application No. 13813 of 2010 [Mahashakti Coke V/s. State of Gujarat] and Special Civil Application No. 5638 of 2011 [Shaifali Rolls Ltd. & Anr. v. State of Gujarat & Ors.] Shri Soparkar, learned Senior Advocate appearing for the petitioners has heavily relied upon decision of Division Bench of this Court rendered in case of Shaifali Rolls Ltd. & Anr. (Supra). 5.3 It is further submitted by Shri S.N. Soparkar, learned Counsel for the petitioners that even otherwise in case of Pipeline Project, the State Government has extended the scheme up to 31st December, 2007. It is submitted that therefore also, when in case of Pipeline Project, the scheme has been extended up to 31st December, 2007, the expenses incurred by the petitioner Company at least upto 11th April, 2007; being the period of 18 months from the date of commencement of commercial production, the petitioners shall be entitled to the Sales Tax incentives, as the petitioners can be on the stronger footing than the Pipeline Project. 5.4 Shri S.N. Soparkar, learned counsel appearing on behalf of the petitioners has also heavily relied upon a decision of Divisional Bench of this Court rendered in case of Mahashakti Coke v. State of Gujarat, reported in (2012) 55 VST 382 (Gujarat) in support of the prayer made in the petition to direct the respondents to consider the investment made by the petitioner-Company upto 11th April, 2007 for the purpose of incentives/Sales Tax benefits. 5.5 Making above submissions and relying upon above decisions, it is requested to allow the present petition. 6. 5.5 Making above submissions and relying upon above decisions, it is requested to allow the present petition. 6. The present petition is vehemently opposed by Shri Kamal B. Trivedi, learned Advocate General appearing for the State submitted that in the facts and circumstances of the case, the grant of benefit of incentives as well as Sales Tax exemption to the petitioner-Company on the Capital Investment incurred upto 12th October, 2005 is absolutely just, proper and legal and in consonance with the Scheme. It is further submitted by Shri Kamal Trivedi, learned Advocate General that as such, the intention of the State by the Scheme was to grant incentives/Sales Tax exemption on the Capital Investment made and/or expenses incurred only upto 31st December, 2005. It is submitted that however, in the printing, through oversight, in the Gujarati version the word, "whichever is earlier between the two" is missing, like in the case of Small Industrial Units and Medium Industrial Units. It is submitted that therefore, the petitioners cannot be permitted to take undue advantage of the mistake in printing in Gujarati version. He has submitted that in the English version, which is referred to in the Additional Affidavit-in-Reply, it has been specifically mentioned that in case of Industrial Units having project cost exceeding Rs. 10 Crores, the assets acquired within the period of 18 months from the date of commencement of production or till the completion of the said Scheme [whichever is earlier than the two], shall be considered eligible for the purpose of incentives. It is submitted that therefore, the understanding on the part of the authority i.e., the State Government was to consider investments/assets acquired by the industrial undertaking within a period of 18 months from the date of commencement of production, or till the completion of the said Scheme i.e., 31st December, 2005 [whichever is earlier between the two]. 6.1 It is submitted by Shri Kamal Trivedi, learned Advocate General that the Incentive Scheme cannot be treated like a Statute or a plenary legislation in the matter of interpretation of the provisions contained in the said resolution. It is submitted that the interpretation of the provisions contained by the said resolution has to be purposive in nature and all the provisions contained therein have to be read together in harmonious fashion. It is submitted that the interpretation of the provisions contained by the said resolution has to be purposive in nature and all the provisions contained therein have to be read together in harmonious fashion. It is submitted that while doing so, the understanding on the part of the author, which is the State Government in the present case, as regard its scope and purview cannot be lost sight of. 6.2 It is submitted that the incentive Scheme in question was extended to all the Industrial Units regardless of any distinction like Small, Medium, Large Industrial Units vis-à-vis. the project cost involved therein. That, the categories contained i.e., capital expenditure incurred and paid during the period of operation of the incentive Scheme would be taken into account. It is submitted that thereafter, in the initial draft of the resolution, Clause 3.8 thereof carried only Small scale, Medium scale and Large scale units without there being any mention as regards having project cost exceeding Rs. 10 Crores. It is submitted that it is only after further deliberations that provision of units having project cost exceeding Rs. 10 Crores have been incorporated in the said Clause 3.8. It is submitted that though, the said provision was made by adding the words exceeding Rs. 10 Crores, unfortunately, the condition "whichever is earlier between the two" was inadvertently omitted to be mentioned. It is submitted that if one peruses the file, the intention of the State Government was that the Capital Investment incurred and paid during the year from the date of commencement of commercial production or till the currency of the Scheme, "whichever is earlier ", was to be taken into account for exceeding the benefit of incentive Scheme. It is submitted that thus, the intention on behalf of the State in Clause 3.8 of the Scheme is that the Capital Investment of the units, namely, Small Industrial Units, Medium Industrial Units and the Large Industrial Units and Units having project cost exceeding Rs. 10 Crores will be considered for the respective specified period from the date of commencement of the production or completion of the Scheme "whichever is earlier". 10 Crores will be considered for the respective specified period from the date of commencement of the production or completion of the Scheme "whichever is earlier". 6.3 It is further submitted by Shri Kamal Trivedi, learned Advocate General appearing on behalf of the respondent-State that as such everybody; including the petitioner understood that the capital investment made only upto 31st December, 2005, or 18 months from the date of commencement of production; whichever is earlier, the benefit under the Scheme shall be available. It is submitted that none of the 105 projects like that of the petitioners have ever applied for investment made beyond 31st December, 2005 and/or none of the 105 projects like the petitioners have ever been given benefit under the incentive Scheme for investment made after expiry of the Scheme i.e., 31st December, 2005. It is further submitted that even in the present case also, the petitioners even applied for Provisional Eligibility Certificate only with respect of expenses incurred upto 31st December, 2005 i.e., Rs. 213.57 Crores. It is further submitted that even thereafter also, when in the year 2008, the petitioners applied for Final Eligibility Certificate, the petitioners applied for the same for the investment made upto 31st December, 2005 i.e., Rs. 237.55 Crores. 6.4 It is submitted that, therefore, the said application for Final Eligibility Certificate, with respect to investment made, upto 31st December, 2005 (even as applied by the petitioners) came to be considered and thereafter, having been found that the petitioner company is entitled to the incentives on the investment made of Rs. 188.15 Crores, the Final Eligibility Certificate of Rs. 188.15 Crores has been issued. It is submitted that at that stage, no grievance was made by the petitioner at all. It is submitted that thereafter, for the first time, such a grievance has been made in the year 2015 which is nothing but an afterthought. It is submitted that thus from the very beginning, even the petitioner understood that they are entitled to incentives/Sales Tax exemption on the investment made upto 31st December 2005 only and consequently, they applied for Provisional Eligibility Certificate as well as Final Eligibility Certificate accordingly. 6.5 It is further submitted by Shri Kamal Trivedi, learned Advocate General that even the petitioners have not pleaded the case of promissory estoppel. 6.5 It is further submitted by Shri Kamal Trivedi, learned Advocate General that even the petitioners have not pleaded the case of promissory estoppel. It is submitted that it is not the case on behalf of the petitioners and so pleaded in the petition that at the time of making investment, even upto 12th April 2007, they considered Clause 3.8 and thereby considered that they shall be entitled to incentives/sales tax exemption on the investment made upto April 2007, and therefore, they made the investment. It is submitted that therefore, in the present case, there is no question of applying the principles of promissory estoppel. 6.6 Now so far as reliance placed upon the decision of Division Bench of this Court in case of Shaifali Rolls Limited & Anr. [Supra] is concerned, it is vehemently submitted by Shri Kamal Trivedi, learned Advocate General that in the case before the Division Bench and as per the pleadings in the petition, the grievance made by the petitioner was with respect to the investment made upto 31st December 2005 only, and therefore, there was no issue/controversy at large before the Division Bench with respect to interpretation of Clause 3.8 of the Scheme and/or to consider whether the Industrial Undertaking which had made investment within the period of 18 months from the date of commencement of commercial production [beyond 31.12.2005] are entitled to the incentive/sales tax exemption on the above or not. It is, therefore, submitted that decision is required to be considered in light of the controversy in the petition, and therefore, any observations made dehors the controversy in the petition shall have no precedentiary value. It is submitted that even otherwise on considering the entire judgment of Division Bench in the case of Saifali Rolls Limited & Anr. [Supra], there is no specific finding given by the Bench that the respective undertakings are entitled to incentive/sales tax exemption benefits on the investment made within 18 months from the date of commencement of the commercial production i.e., after 31st December 2005. It is submitted that therefore, if the entire decision of Division Bench in the case of Saifali Rolls Limited & Anr. [Supra] is read as a whole, there is no specific finding given by the Bench on the aforesaid aspect. It is submitted that therefore, the decision of the Division Bench in the case of Saifali Rolls Limited & Anr. It is submitted that therefore, if the entire decision of Division Bench in the case of Saifali Rolls Limited & Anr. [Supra] is read as a whole, there is no specific finding given by the Bench on the aforesaid aspect. It is submitted that therefore, the decision of the Division Bench in the case of Saifali Rolls Limited & Anr. [Supra] shall not be applicable on the facts of the case on hand. 6.7 It is further submitted by learned Advocate General that so far as submissions made on behalf of the petitioners that in the case of Pipeline projects, the State Government extended the benefit of the Scheme upto 31st December 2007, and therefore, the case of the petitioners can be said to be on better footing, and therefore, for the capital investment made upto 11th April 2007 i.e., made during the period of 18 months from the date of commencement of commercial production is concerned, it is submitted that as such, in the present case, admittedly, the petitioners have started commercial production on 12th October 2005. It is submitted that therefore, case of the petitioners cannot be compared with Pipeline projects. It is submitted that the intention of the State Government to grant incentive/sales tax exemption benefit is very clear i.e., till 31st December 2005 or on investments made within 18 months from the date of commercial production; whichever is earlier of the two. It is submitted that therefore, the petitioner has rightly been denied the benefit of the Scheme on the investment/expenses incurred after 31st December 2005; though may be made within 18 months from the date of commencement of commercial production. 6.8 Making above submissions and relying upon the decision of the Supreme Court in the case of Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc., reported in [2016] 4 SCC 1265 and another decision in case of Secretary, Ministry of Chemicals & Fertilizers, Government of India v. CIPLA Limited & Ors., reported in [2003] 7 SCC 1 [on interpretation of Statute and/or Resolution and/or Scheme] and yet another decision in case of Afcon Infrastructure Limited v. Nagpur Metro Rail Corporation Limited & Anr., AIR 2016 SC 4305 and the decision of Division Bench of this Court in case of Sal Steel Limited & Anr. vs. Union of India & Ors. [SCA No. 6299 of 2008], it is requested to dismiss the present petition. vs. Union of India & Ors. [SCA No. 6299 of 2008], it is requested to dismiss the present petition. 6.9 In reply to the submissions made by the learned Advocate General, Shri S.N. Soparkar, learned Senior Advocate appearing on behalf of the petitioners has submitted that the decision of Division Bench of this Court in the case of Sal Steel Limited & Anr. [SCA No. 6299 of 2008] shall not be applicable to the facts of the case on hand. It is submitted that in the present case, Clause 3.8 of the Scheme is very clear and with respect to Industrial Units having the project cost of Rs. 10 Crores and above, the words, "whichever is earlier" are missing and therefore, petitioners shall be entitled to the benefit of the Scheme, even with respect to expenses made upto April 2007. Making above submissions, it is requested to allow the present petition. 7. Heard learned counsel appearing on behalf of the respective parties at length. 8. A short question which is posed for consideration of this Court is whether the petitioner-Company is entitled to incentive/sales tax exemption under the Scheme on investment/expenditure incurred after 31st December 2005, but within a period of 18 months from the date of commencement of commercial production. 9. Relying upon Clause 3.8 of the Scheme, it is the case on behalf of the petitioners that they are entitled to incentive/sales tax exemption on the expenses of Rs. 257.55 Crores which were incurred and paid upto 12th April 2007 i.e., 18 months from the date of commencement of commercial production i.e., 12th October 2005. 10. On the other hand, it is the case on behalf of the State that the incentive/sales tax exemption is available only on the investment/expenses incurred upto 31st December 2005 or within 18 months from the date of commencement of commercial production; whichever is earlier. 11. It is the case on behalf of the petitioners that in Clause 3.8 of the Scheme, the words, "whichever is earlier between the two" are not there in case of Industrial Units having project cost exceeding Rs. 10 Crores, which words though are there in case of Small Scale Industrial Units, Medium and Large scale Industrial Units. Therefore, it is the case on behalf of the petitioners that in case of Industrial Units having project cost exceeding Rs. 10 Crores, which words though are there in case of Small Scale Industrial Units, Medium and Large scale Industrial Units. Therefore, it is the case on behalf of the petitioners that in case of Industrial Units having project cost exceeding Rs. 10 Crores, the assets acquired within period of 18 months from the date of commencement of commercial production or till completion of the Scheme i.e., 31st December 2005, shall be considered eligible for the purpose of incentives. Therefore, it is the case on behalf of the petitioner that as the date of commencement of commercial production in their case is 12th October 2005, all the expenses incurred by the petitioner-Company upto 11th April 2007 i.e., 18 months from the date of commencement of commercial production are eligible for grant of incentives. 12. On the other hand, it is the specific case on behalf of the State that in fact, the duration of the Incentive Scheme was upto 31st December 2005, and therefore, the incentive scheme was valid from 31st July 2001 to 31st December 2005 and from the beginning, the intention of the framers of the Scheme/State Government was that the assets acquired within a period of 18 months from the date of commencement of production or till the completion of the said Scheme [whichever is earlier between the two] shall be considered eligible for the purpose of incentive. It is the case on behalf of the State that, however, through oversight, with respect to Industrial Units having project cost exceeding Rs. 10 Crores, the words, "whichever is earlier between the two" are missing when it had gone to the press for publication. It is submitted that it being an inadvertent mistake that the words, "whichever is earlier between the two" are not printed in the Gujarati version of the Scheme. It is the case on behalf of the State that in English version, the expression "whichever is earlier between the two" is there. However, the same had not gone to the press, and therefore, the same could not be published. It is the case on behalf of the State that even with respect to other similar 105 Industrial Undertakings, the investment/assets acquired upto 31st December 2005 only have been considered eligible for the purpose of incentives; including the petitioners. 13. However, the same had not gone to the press, and therefore, the same could not be published. It is the case on behalf of the State that even with respect to other similar 105 Industrial Undertakings, the investment/assets acquired upto 31st December 2005 only have been considered eligible for the purpose of incentives; including the petitioners. 13. In light of the above, the question posed for consideration before this Court; as stated hereinabove, is required to be considered. 14. Having heard learned counsel appearing on behalf of the respective parties and considering Clause 3.8 of the Scheme, at the outset, it is required to be noted that in case of Small Scale Industrial Units, Medium and Large scale Industrial Units, the assets acquired upto the period of six months or within 1 year from the date of commencement of commercial production or till the date of completion of the said Scheme i.e., 31st December 2005; whichever is earlier between the two, shall be considered eligible for the purpose of Incentives. However, in the Gujarati version of the Incentive Scheme, the expression "whichever is earlier between the two" is missing in case of Industrial Units having project cost exceeding Rs. 10 Crores. The aforesaid seems to be an inadvertent mistake in publication/typing. The aforesaid aspect has been explained in detail, while narrating the sequence which led to introduction of Incentive Scheme in paras 5 to 7 of the affidavit dated 6th December 2016 filed on behalf of the respondent No. 1, which read as under:- "5. In this behalf, as is discernible from the Government file, I clearly suggests that originally, the Incentive Scheme in question was intended to be extended to all the industrial units regardless of any distinction like Small, Medium and Large Scale Units vis-à-vis. the project cost involved therein, with a categorical condition that the project cost, i.e. capital expenditure incurred and paid during the period of operation of the Incentive Scheme, would be taken into account. This clearly shows as to what was intended by the State Government. However, thereafter, in the initial draft of the Resolution, clause No. 3.8 thereof carried only Small Scale, Medium Scale and Large Scale Units without there being any mention as regards the Units having project cost exceeding Rs. 10 Crore. It is only after further deliberation that the provision of the Units having project cost exceeding Rs. However, thereafter, in the initial draft of the Resolution, clause No. 3.8 thereof carried only Small Scale, Medium Scale and Large Scale Units without there being any mention as regards the Units having project cost exceeding Rs. 10 Crore. It is only after further deliberation that the provision of the Units having project cost exceeding Rs. 10 crore came to be incorporated in the said clause 3.8. Though, the said provision was made subsequently by adding the Industrial Units having investment exceeding Rs. 10 crore, unfortunately, the qualifying condition _________________, was inadvertently omitted to be mentioned. Thus, if one peruses the file and intention of the Government is to be culled out therefrom, it goes to show that the capital investment incurred and paid during the specified period from the date of commencement of commercial production or till the currency of the Scheme, whichever is earlier, was to be taken into account for extending the benefits of the Incentive Scheme. 6. The aforesaid discussion, even otherwise gets support from the fact that Clause 3.8 is bifurcated into three parts and is applicable to the respective units viz. Small scale, Medium scale and Industrial Units involving project cost exceeding Rs. 10 crore, and Large scale as per their investment. Firstly, for small scale units, the condition reads to the effect that the capital investment will be taken into account made during the period of six months from the date of commencement of the production or till the completion of the scheme, whichever is earlier. Secondly, for medium and large scale projects, the clause similarly provides consideration of capital investment made during the period of one year from the date of commencement of commercial production or till the completion of the scheme, whichever is earlier. Thirdly, so is the position with respect to the Units having project cost exceeding Rs. 10 crore, wherein the qualifying expression "whichever is earlier", was inadvertently omitted to be mentioned. 7. Thus, the intention behind the said clause 3.8 is that the capital investment of the units viz., small scale, medium scale, large scale and the units having project cost exceeding Rs. 10 crore, will be considered for the respective specified period from the date of commencement of production or completion of the scheme, whichever is earlier. Mere non-mentioning of the term "whichever is earlier" after the condition applicable to the units having investment exceeding Rs. 10 crore, will be considered for the respective specified period from the date of commencement of production or completion of the scheme, whichever is earlier. Mere non-mentioning of the term "whichever is earlier" after the condition applicable to the units having investment exceeding Rs. 10 crores, does not extend the benefit under the scheme for a longer period than the currency of the scheme i.e. beyond 31st December, 2005. It may be appreciated that the expression 'whichever is earlier' at the end of the said clause 3.8 is inadvertently omitted to be mentioned in view of the fact that the last underlined portion in clause 3.8 referred to above, relating to Units having project cost exceeding Rs. 10 crore was added later on, as a result of the further deliberation. It is pertinent to mentioned that none of the 105 projects like that of the petitioners have ever been given the benefits under the Incentive Scheme after the expiry of 31st December, 2005 even though the specified periods viz. 6 months, 1 year and 18 months, as the case may be from the date of commencement of commercial production in those cases, had spread over beyond the last date of the operation period of the said Incentive Scheme i.e. 31st December, 2005 (except pipe-line cases). 15. Nobody can be permitted to take undue advantage/disadvantage of the beneficial Scheme due to inadvertent mistake in publication. 15.1 Even otherwise, it is required to be noted that even considering Clause 3.8 of the Scheme, in case of Industrial Units having project cost exceeding Rs. 10 Crores, it is mentioned that the assets acquired within a period of 18 months form the date of commencement of production, or till the completion of the said Scheme, shall be considered eligible for the purpose of incentives. Therefore, the submissions made on behalf of the petitioners that the assets acquired upto 11th April 2007 are required to be considered eligible for the purpose of incentive; if is accepted, in that case, the words/expressions "till the completion of the said Scheme" shall be meaningless. Therefore, the submissions made on behalf of the petitioners that the assets acquired upto 11th April 2007 are required to be considered eligible for the purpose of incentive; if is accepted, in that case, the words/expressions "till the completion of the said Scheme" shall be meaningless. The intention of the framers of the Scheme i.e., the State Government is very clear and unambiguous i.e., to consider the assets acquired maximum upto 31st December 2005 shall be considered eligible for the purpose of incentives, or the assets acquired within a period of 18 months from the date of commencement of commercial production, if the same is before 31st December 2005. For example, in a case where the date of commencement of production is 1st day of January 2002, in that case, the assets acquired within period of 18 months from 1st January 2002 shall be considered eligible for the purpose of incentives and in other cases, the assets acquired on or before 31st December 2005 shall be considered eligible for the purpose of grant of incentive. 16. At this stage, it is required to be noted that it is the specific case on behalf of the State that none of the other 105 projects; like that of the petitioners, have ever been given benefit of incentive scheme on the expenses incurred after expiry of the term i.e., 31st December 2005 and with respect to all the 105 projects; including the petitioners, the assets acquired within 18 months from the date of commencement of commercial production or till completion of the Scheme i.e., 31st December 2005 [whichever is earlier between the two] are considered eligible for the incentive. Under the circumstances, as such, the State have treated all equally and with equal standard. At this stage, it is required to be noted that even the petitioners have not alleged any violation of Article 14 of the Constitution and/or discrimination. 17. It is also required to be noted that the understanding of the Scheme; including that of the petitioners, was in line suggested by the State Government. All the 105 projects which are beneficiaries of the Incentive Scheme 2001 applied for eligibility certificate and thereby claimed incentives on the assets acquired on or before 31st December 2005 only. None of the projects had claimed incentives on the assets acquired after 31st December 2005. All the 105 projects which are beneficiaries of the Incentive Scheme 2001 applied for eligibility certificate and thereby claimed incentives on the assets acquired on or before 31st December 2005 only. None of the projects had claimed incentives on the assets acquired after 31st December 2005. At this stage, it is also required to be noted that even the petitioners also understood from the very beginning the Scheme in the manner as suggested by the State Government and they also understood that on the assets acquired within a period of 18 months from the date of commencement of commercial production or till the completion of the Scheme i.e., 31st December 2005 [whichever is earlier between the two], shall be considered eligible for the purpose of grant of incentive and that is how, when the petitioners applied for Provisional Eligibility Certificate, they considered assets acquired only upto 31st December 2005 amounting Rs. 213.57 Crores. While submitting application for grant of Provisional Eligibility Certificate, the petitioners submitted a Certificate issued by Chartered Accountant with respect to the investment made upto 12th October 2005 i.e., Rs. 213.57 Crores and accordingly, Provisional Eligibility Certificate was issued, considering the investment made of Rs. 213.57 Crores only. It is also required to be noted that the said Provisional Eligibility Certificate is dated 12th September 2006. At this stage, it is required to be noted that even subsequently, while the petitioners applied for Final Eligibility Certificate, which was dated 29th April 2008, they claimed benefit on the investment made of Rs. 237.40 Crores i.e., the investment/assets acquired upto 31st December 2005 only and accordingly, the State Government issued Final Eligibility Certificate considering the investment/assets acquired upto 31st December 2005 i.e., Rs. 237.40 Crores [even as claimed by the petitioners] and out of Rs. 237.40 Crores, the State/Department considered investment of Rs. 188.15 Crores as eligible for incentive [as per final eligibility certificate dated 6th October/November 2008]. No grievance was ever made by the petitioners then. Thus, from the beginning, even the petitioners submitted their claim for incentive on the investment/assets acquired upto 31st December 2005 only and at no point of time, the petitioners claimed incentive on the assets acquired/investment made after 31st December 2005 but before 11th April 2007. Such a claim is made for the first time in the year 2015. Thus, from the beginning, even the petitioners submitted their claim for incentive on the investment/assets acquired upto 31st December 2005 only and at no point of time, the petitioners claimed incentive on the assets acquired/investment made after 31st December 2005 but before 11th April 2007. Such a claim is made for the first time in the year 2015. There is nothing on the record that any representation was made to consider the assets acquired upto 11th April 2007, being the period of 18 months from the date of commencement of commercial production. Thus, such a claim is made in the present petitioner requesting to consider the assets acquired by the petitioners after 31st December 2005 but before 11th April 2007 i.e., within 18 months from the date of commencement of commercial production. Thus, the subsequent claim is nothing but an afterthought and to take undue advantage of the mistake in printing; more particularly in Clause 3.8 of the Scheme, in which inadvertently, the expression, "whichever is earlier between the two" is missing. 18. The sum and substance of the aforesaid is that even the petitioners also understood that the assets acquired within a period of 18 months from the commencement of commercial production or till the Scheme ends on 31st December 2005 [whichever is earlier between the two] shall be considered eligible for the purpose of the incentive. It is also not the case on behalf of the petitioners in the petition that in fact they understood, considering Clause 3.8 that the assets acquired within a period of 18 months from the date of commencement of the commercial production shall also be considered eligible for incentive and therefore, they made investment subsequently. The petitioners have also not pleaded any estoppel or promissory estoppel. Under the circumstances, when the petitioners and all other Industrial Units/Undertakings/Projects [105 in number] understood the Scheme, the manner in which the State Government had pleaded and all are treated equally and in case of all Industrial Undertakings/Projects, the assets acquired only upto 31st December 2005 are considered eligible for the purpose of incentive, the petitioners are not entitled to incentive on the assets acquired subsequently after commencement of commercial production or after 31st December 2005. 19. 19. Now so far as reliance placed on the decisions of Division Bench of this Court in Special Civil Application No. 5638 of 2011 & 11768 of 2013 by the learned counsel for the petitioner is concerned, at the outset, it is required to be noted that in the case before the Division Bench, the controversy was with respect to investment/assets acquired upto 31st December 2005 only and even the pleadings in the first petition, being Special Civil Application No. 5638 of 2011 was also with respect to the assets acquired/investment made upto 31st December 2005 only. No such case was pleaded before the Division Bench with respect to investment made during 18 months from the date of commencement of commercial production. As such, there was no controversy before the Division Bench with respect to the assets acquired/investment made after 31st December 2005 and made during 18 months from the date of commencement of commercial production. Under the circumstances, as such there was no lis between the parties with respect to the said controversy. Even otherwise in the said decision, while disposing of Special Civil Application No. 5638 of 2011, the Division Bench has nowhere held that the investment/assets acquired during 18 months from the date of commencement of commercial production and after 31st December 2005 may be considered eligible for incentive. No such prayer is granted. It appears that while deciding the question involved in the said petition, some submissions were made with respect to Investment made during 18 months from the date of commencement of commercial production and without any specific finding on the same, the Division Bench has disposed of the said petition by directing the State Government to consider the case of the petitioners in accordance with law. Therefore, the aforesaid decision cannot be said to be deciding the question on merits viz., whether on the assets acquired/investment made after 31st December 2005, but during 18 months from the date of commencement of commercial production, the same is eligible for incentive or not. Under the circumstances, the decision of Division Bench of this Court in Special Civil Application No. 5638 of 2011 and Special Civil Application No. 11768 of 2013 shall not be of any assistance to the petitioners and/or the same shall not be applicable to the facts of the case on hand. 20. Under the circumstances, the decision of Division Bench of this Court in Special Civil Application No. 5638 of 2011 and Special Civil Application No. 11768 of 2013 shall not be of any assistance to the petitioners and/or the same shall not be applicable to the facts of the case on hand. 20. Now so far as reliance placed on the decision of Division Bench of this Court in case of Mahashakti Coke v. State of Gujarat [Supra] is concerned, on a close look at the said decision, we are of the opinion that in the said decision, there is no specific finding given by the Division Bench of this Court with respect to investments/assets acquired after 31st December 2005, but within 18 months from the date of commencement of commercial production. Even the claim in the said petition was with respect to investment made prior to 31.12.2005 of Rs. 1,31,29,19,074/- i.e., on investment made prior to 31.12.2005. However, the eligible amount of Sales Tax Scheme recommended was only Rs. 63.04 Crores and the same was controversy before the Division Bench. Before the Division Bench, there was no dispute with respect to the investment made after 31st December 2005 but within 18 months from the date of commencement of commercial production. Under the circumstances also, the said decision shall not be applicable to the case on hand and/or the same shall not be of any assistance to the petitioners herein. 21. In view of the above and for the reasons aforestated, the present writ petition with respect to claim of the petitioners for incentive/sales tax exemption on the investment made/assets acquired after 31.12.2005, but made on or before 11.04.2007 i.e., within a period of 18 months from the date of commencement of commercial production i.e., Rs. 257.55 Crores is hereby rejected. It is held that the petitioners are not entitled to the incentive/sales tax exemption on the total expenses/investment of Rs. 257.55 crores as claimed and are entitled for incentive/sales tax exemption on the investment made/assets acquired upto the date of commencement of commercial production i.e., 12th October 2005. 22. As observed hereinabove, so far as the prayer of the petitioners to extend the period of Sales Tax Eligibility Certificate for a further period of five years for un-utilized amount of Rs. 57.82 Crores, out of Rs. 22. As observed hereinabove, so far as the prayer of the petitioners to extend the period of Sales Tax Eligibility Certificate for a further period of five years for un-utilized amount of Rs. 57.82 Crores, out of Rs. 188.15 Crores is concerned, the same has become infructuous, in view of the subsequent decision of the State Government. 23. In view of the above and for the reasons aforestated, the present writ petition fails and the same is hereby dismissed. Rule discharged. Ad interim relief stands vacated. No costs. FURTHER ORDER 24. Learned counsel for the petitioner requested to continue ad interim relief granted by this Court vide Oral Order dated 6th May 2016. 25. Considering the fact that even according to the petitioners there was a credit of Rs. 57.82 Crores by way of incentives on Sales Tax which otherwise they will be entitled, now as per subsequent Resolution, it is not on record whether even that sum of Rs. 57.82 Crores are utilized or not. Under the circumstances, there is no question of any further continuation of interim relief. Hence, prayer is rejected.