2020 Supreme(SC) 450

SUPREME COURT OF INDIA
A.M.KHANWILKAR, DINESH MAHESHWARI, JJ.
M/S. ULTRATECH CEMENT LTD. & ANR. – APPELLANTS
VERSUS
STATE OF RAJASTHAN & ORS. – RESPONDENTS
CIVIL APPEAL NO.2773 OF 2020 (Arising out of SLP(Civil) No. 2252 of 2019)
Decided on : 17-07-2020

IMPORTANT POINTS
(1) Extending of any incentive in form of exemption, rebate, concession or subsidy is a matter of policy of Government and for that matter, fiscal policy.
(2) In essence, doctrine of Contemporanea Expositio is applied as a guide to interpretation of a statute or even document by referring to exposition that same had received from competent authority at relevant point of time. This doctrine is also relatable to doctrine of stare decisis.

Headnote:

(A) Rajasthan Investment Promotion Scheme, 2003 (RIPS-2003) – Clause 7, sub-clauses (vi) and (vii) – Tax subsidy – Direction for refund of amount of excess availed subsidy together with interest – Extending of any incentive in form of exemption, rebate, concession or subsidy is a matter of policy of Government and for that matter, fiscal policy – Ordinarily, such framing of policy remains within domain of Government and Government is entitled to frame a particular policy and to alter the same, as deemed fit and proper – As to whether cement industry was to be granted 75% subsidy under RIPS-2003 or not was definitely a matter of policy of Government and when such a policy was not in existence at the time of consideration of application of appellant, no benefit could have been claimed under a non-existent policy – Additional Chief Secretary has rightly held that SLSC’s decision dated 17.03.2011 and its repeat decision dated 24.11.2011 had been erroneous on the very fundamentals where it was assumed as if BIDI had already sanctioned 75% subsidy to the company – High Court rightly held that appellant company was only entitled to subsidy to the extent of 50% of tax payable and deposited and not to the extent of 75% – View of SLSC cannot be regarded as a possible view of matter from any standpoint or any angle – RIPS-2003 had admittedly been a non-statutory scheme but that hardly makes a difference looking to nature of purport of this Scheme whereby State was ultimately to extend benefit by reducing its intake of amount of Sales Tax/VAT and such an intake is indeed governed by statute – When decisions of SLSC dated 17.03.2011 and 24.04.2011 turn out to be unauthorised and not in accord with applicable provisions of Scheme, principles of promissory estoppel cannot be invoked for their enforcement – Principles of promissory estoppel cannot operate against such revisional power of Government – RIPS-2003 being a matter of concession in form of subsidy, securing an advantage by appellant at the cost of public exchequer could not have been allowed – impugned order of High Court, upholding order passed by Additional Chief Secretary, Finance Department, Government of Rajasthan, Jaipur affirmed but with modification that respondents shall be entitled to recover interest at the rate of 12% per annum from date of availing of excessive subsidy (25%) by appellants until payment/recovery. (Paras 22, 23, 24.1, 26.1, 26.2, 26.3, 29 and 34)

(B) Doctrine – Contemporanea Expositio – In essence, doctrine of Contemporanea Expositio is applied as a guide to interpretation of a statute or even document by referring to exposition that same had received from competent authority at relevant point of time – This doctrine is also relatable to doctrine of stare decisis whereunder, an exposition standing for a long length of time, is considered to be a law settled and is applied as such – As regards contemporaneous construction placed by administrative or executive officers charged with executing statute, Courts lean in favour of attaching considerable weight to the same but, it cannot be laid down that understanding of a particular administrative or executing authority is always fait accompli and has to be applied even if erroneous – True principle is just to the contrary – If a construction placed by contemporary authority is found to be clearly wrong or erroneous, same deserves to be disregarded. (Para 25.3)

Facts of the case:

Present appeal is directed against judgment and order dated 11.01.2019 passed in D.B. Civil Writ Petition No. 9090 of 2018, whereby High Court of Judicature for Rajasthan, Bench at Jaipur, dismissed the writ petition filed by the appellants while upholding the order of revision dated 12.03.2018 as passed by the Additional Chief Secretary, Finance, Government of Rajasthan, Jaipur1[‘ACS’ for short] in revision proceedings under Clause 13 of the Rajasthan Investment Promotion Scheme-2003. Basic point arising for determination in this case is the extent to which the appellant company was entitled to Sales Tax/VAT subsidy under RIPS-2003 i.e., as to whether the company was entitled to the subsidy to the extent of 75% of tax payable and deposited or was entitled only to 50%.

Findings of Court:

Doctrine of Contemporanea Expositio neither applies to this case nor inures to the benefit of appellant. The principles of promissory estoppel are equally inapplicable and the State Government has rightly exercised the powers of revision under Clause 13 of RIPS-2003 to interfere with the erroneous decisions of SLSC whereby the appellant was allowed 25% extra subsidy and which was, obviously, prejudicial to the interest of revenue; and mere availing of the benefits by the appellant under the erroneous decisions of SLSC is of no effect, particularly when the State Government has exercised the powers of revision within the time stipulated in Clause 13 of RIPS-2003.

Result : Appeal Partly allowed.