The subsequent amendment dated 12.12.2002 by the State inserting clause No. 17A to the scheme of 2000 should be ignored at least for the purpose of giving benefit to the cold storage industry.

Rudrendra Nath Banerjee, J.: This mandamus appeal is directed against the order dated 28th December, 2006 passed by a learned Single Judge of this Court in W.P. No. 1694 of 2004 thereby dismissing the writ petition filed by the appellants.

2. The appellants' case before the learned Single Judge was that the appellant No.1 is a small-scale cold storage project, which started its business on and from 01.03.2000. Pursuant to the National Policy to withdraw sales tax related incentive, the State Government started a new incentive scheme with effect from 1st January, 2000 (to be referred as scheme of 2000) in supersession of the West Bengal Incentive Scheme of 1999. The said new scheme of 2000 was published in the Official Gazette of 14th February, 2001; the duration of the scheme being five years and the same would be available till 31st December, 2004. Under the provisions of the scheme of 1999 and 2000, the nature of the business carried on by the appellant No. 1 was not enlisted in the 'negative list' annexed to those schemes and consequently, it was entitled to various subsidies and benefits for running and setting up such business. The appellant No.1, accordingly, on 6th August, 2002 filed an application in prescribed form before the Department of Cottage and Small Scale Industries, West Bengal for getting benefits under the Scheme of 2000. Such application was refused by the department on the ground that the said cold storage was not eligible for such subsidy under the scheme of 2000 in view of the amended para 17 A of the Scheme of 2000 as per notification dated 12th December, 2001.

3. It may be mentioned here that the Government of West Bengal, Commerce and Industries Department, issued the said notification with a view to extending some incentives in the service related activities of Food Processing sectors development of post harvest infrastructure for fruits, vegetables and flowers for promotion of industries in these sectors in the State not covered by the West Bengal Incentive Scheme, 2000 and accordingly, added clause No. 17A to the Scheme of 2000 mentioning that the industry of cold storages along with some others would be entitled to such incentives.

4. The appellant No.1 filed the writ application challenging such refusal of benefits covered under the Scheme of 2000 on the ground inter alia that such subsequent notification dated 12.12.2001 was ultra vires and that the cold storage unit not having been included in the negative lists appended to the schemes of 1999 and 2000, cannot be denied incentive benefits under the scheme.

5. A learned Single Judge of this Court, by the impugned order dated 28th December, 2006, observed that there was no scope to interpret the provision of the scheme of 2000 for finding out whether a cold storage was covered by the original scheme. It was further observed that the schemes was principally applicable to new units or industries and the cold storage of the appellant No.1 did not come within the scheme of 1999 and 2000. The learned Single Judge further held that the expression 'new unit' was defined to mean an industrial unit established and commissioned by the entrepreneur for the manufacture of goods in the State for the first time on or after January 1, 2000 and the appellant No.1, being not within the category of such new unit, was not entitled to the benefits of the scheme and accordingly, the writ petition was dismissed.

6. The writ petitioners as appellants have filed this appeal challenging the order of the learned Single Judge on the ground that the business of the appellant No.1 being not enlisted in the 'negative list' annexed to the schemes of 1999 and 2000 and the subsequent notification dated 12.12.2001 inserting clause 17(A) to the scheme of 2000 being unnecessary at least so far the business of the appellants is concerned, such facts do not stand on the way of appellants in getting such benefits granted by the scheme. To understand the position of law let us hav