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2017 Supreme(Del) 1088
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.ROHINI & SANGITA DHINGRA SEHGAL, JJ.
UNION OF INDIA & ANR. – Appellants
Versus
INDOSOLAR LTD. – Respondent
LPA 837 of 2015 & C.M.No.27443 of 2015
Decided On : 10-04-2017
For the Appellants : Mr. Sanjay Jain, ASG with Mr. Jasmeet Singh, Mr. Srivats Kaushal & Ms. Aastha Jain, Advs.
For the Respondent: Dr. Ashwani Kumar, Sr. Adv. with Mr. Ashish Kumar, Mr. Aayush Chandra, Advs.
Headnote:
Constitution of India, 1950 - Article 226, 227 - Appeal - Capital expenditure - Calculation of NPV - Scope of - Whether the capital expenditure incurred by the respondent in the base year is to be discounted or not - Calculation of the NPV as set out in the Guidelines - Single Judge held that since the Scheme by itself had neither set out the definitions nor the formulae for calculation of the NPV - Operability of the Scheme was dependent on the Guidelines - Guidelines in fact added to the conditions stipulated in the Scheme - Issue involved is not to be examined only from the point of view as to how NPV is ordinarily calculated - It is to be contextualized in the setting of the Scheme - Held, Guidelines have supplemented the Scheme - There is no conflict as such between the Scheme and the Guidelines - Question of Guidelines overriding the Scheme dated 21.03.2007 does not arise - Single Judge was fully justified in concluding that in the light of Clause 2.4 and Clause 2.7 of the Guidelines, the investments made in the base year are not to be discounted - Order under appeal is upheld.
G. ROHINI, J.
1. This appeal is preferred against the order of the learned Single Judge dated 03.07.2015 in W.P.(C) No.3625/2013.
2. The respondent Nos.1 and 2 in the writ petition i.e., the Union of India, Ministry of Communication & Information Technology and the Appraisal Committee set up by Department of Information & Technology are the appellants before us whereas the writ petitioner is the sole respondent.
3. For the sake of convenience, the parties to this appeal shall hereinafter be referred to as they were arrayed in the writ petition.
4. The writ petitioner is a company carrying on the business of manufacturing of solar photo voltaic cells (PV cells) and solar modules. By its application dated 30.03.2008, the petitioner sought capital subsidy of Rs.300 crores under "Special Incentive Package Scheme" notified by the Government of India, Ministry of Communications & Information Technology vide Notification dated 21.03.2007.
5. The said request was not considered on the ground that the Net Present Value (NPV) of eligible capital expenditure of the petitioner falls short of threshold NPV of investment of Rs.1000 crores prescribed under the scheme. Aggrieved by the same, the petitioner filed W.P.(C)No.3625/2013 with the following prayer:
"(i) Issue a writ of mandamus or any other appropriate writ directing the Respondent No.1 and 2 to release in favour of the Petitioner the subsidy of Rs. 253.2 Crores in respect of the total NPV of Rs. 1012.87 Crores achieved by the Petitioner under the 'Special Incentive Package Scheme', and/or
(ii) Direct the Respondent No. 1 and 2 to refrain from calculating the NPV under Clause 2.4 of the Special Incentive Package Scheme by discounting from the base year itself in contravention of the clauses of the Special Incentive Package Scheme, and/or
(iii) Any other appropriate writ, order or direction which this Hon'ble Court may deem fit and suitable in the facts and circumstances of the case."
6. The said writ petition was disposed of by the learned Single Judge by the order under appeal dated 03.07.2015 holding that the eligible capital expenditure incurred in the base year shall not be discounted to arrive at the threshold limit and accordingly directing the respondents to re-calculate the threshold limit under the scheme. The learned Single Judge also directed that in case the petitioner meets all other parameters, the respondents will release the incentives to which the petitioner is eligible under the scheme in terms of the provisions set out therein.
7. Challenging the said order, the Government of India filed the present appeal.
8. We have heard Sh. Sanjay Jain, learned ASG appearing for the appellants and Dr. Ashwani Kumar, the learned Senior Counsel appearing for the respondent/writ petitioner.
9. Before adverting to the contentions advanced by the parties, the Notification dated 21.03.2007 under which the "Special Incentive Package Scheme" (SIPS) (hereinafter referred to as 'the Scheme in question') has been made by the Government of India may be reproduced hereunder for ready reference:
"MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY
(Department of Information Technology)
NOTIFICATION
New Delhi, the 21st March, 2007
Special Incentive Package Scheme to encourage Investments for setting up Semiconductor Fabrication and other micro and nano technology manufacture industries in India.
No.3(1)/2007-IPHW(SIPS). - The semiconductor industry and other high tech industries are characterized by specific constraints that challenge their viability. These are highly capital intensive and have to deal with constantly changing technology. It, therefore, becomes imperative on part of the Government to create a conducive environment for manufacturing and offer a package of incentives comparable with other countries to attract global investments into the manufacturing sector as well as help bri
