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2023 Supreme(HP) 143
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sabina, Satyen Vaidya, JJ.
M/s Ruchira Papers Ltd. - Petitioner
Versus
Union of India & Ors. – Respondents
CWP No. 1251 of 2008
Decided On : 23-03-2023
For the Petitioner:Mr. K.D. Sood, Senior Advocate, with Mr. Sanjeev Sood and Mr. Mukul Sood, Advocates.
For the Respondent:Mr. Balram Sharma, Deputy Solicitor General of India, Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta, Additional Advocate General.
Point of Law: Negative list made specific inclusion of products by their excise classifications.
Headnote:
Commercial production - Exemptions in payment of excise duty - Products were not included in negative lists - Quashing notification issued by respondent No.1 and declaring it illegal and bad in law and null and void - Whether products manufactured by petitioner were included in negative list right from inception – Products manufactured by petitioner were not mentioned in negative list(s) annexed with all these notifications. [Para 17]
Finding of the Court: Part of questions formulated in paragraph 12 supra needs to be answered in affirmative and second part in negative - However, it is not understandable as to on what cause petitioner has approached this Court for reliefs as noted - As regards first relief, same will not have any affect either way on rights available to petitioner under notifications for simple reason that none of these notifications have seen any amendment - In respect of second relief, Court have not found any pleadings in petition, which may provide cause of action to petitioner - Entire thrust of attack in petition is on amendment carried in negative list by respondent No.1 by way of amending notification – Court however do not find applicability of judgment so referred to facts of instant case for simple reason that court have already held that there was no amendment either in notifications issued by respondent No.1 or their appendices/ annexures, hence determination of question regarding attachment of retrospectivity or retro-activity has not arisen – Court dispose of this petition by holding that petitioner has failed to make out any cause of action for seeking reliefs as prayed by way of instant petition.
Result: Petition disposed of.
JUDGMENT :
Satyen Vidya, J.
By way of instant petition, the petitioner has prayed for following substantive reliefs:-
“(a). Issue writ direction or orders in the nature of mandamus quashing the notification dated 27.06.2008 Annexure PA issued by respondent No.1 and declaring it illegal and bad in law and null and void;
(b). Direct respondents to provide benefit to the petitioner as provided in the office memorandum dated 07.01.2003, Annexure P-1, Annexure P-2, Annexure P-3 and Annexure P-4, respectively;”
2. Ministry of Commerce and Industry, Government of India, vide Office Memorandum dated 07.01.2003 had promised certain fiscal incentives for industries in the States of Uttaranchal (now Uttarakhand) and Himachal Pradesh. According to the said Office Memorandum new industrial units and existing industrial units on their substantial expansion were promised the following incentives :-
(a) 100% out right excise duty exemption for a period of 10 years from the date of commencement of commercial production;
(b) 100% income tax exemption for initial period of five years and thereafter 30% for companies and 25% for other than companies for a further period of five years for the entire states of Uttaranchal and Himachal Pradesh from the date of commencement of commercial production.
(c) Eligibility for capital investment subsidy @15% of their investment in plant and machinery, subject to a ceiling of Rs.30 lakh.
3. However, the above noted incentives were not available to the industries mentioned in negative list, (Annexure- III) of Office Memorandum dated 07.01.2003. Pertinently, the eligible industrial units as well as the units in negative list had specific reference to their respective excise classification(s).
4. Respondent No.1 issued another Office Memorandum dated 21.06.2005 and thereby amended Annexure-III of Office Memorandum dated 07.01.2003 in respect of paper industry and included excise classifications 4802.90 and 4804.90 under heads “Others”. Office Memorandum dated 21.06.2005 was challenged by the petitioner before this Court by way of CWP No. 756 of 2005, which came to be decided by a Division Bench of this Court on 23.04.2008 in following terms:-
“Heard learned counsel for the parties.
The learned counsel for the parties agreed that Office Memorandum can only be enforced when there is notification. It is admitted on behalf of the respondents that there is no notification till date. Accordingly, it is directed that no action be taken only on the basis of the Office Memorandum contained in Annexure P-13 dated 21.06.2005. Once the notification in this regard is issued it would be open for the authorities to act in accordance with the said notification.
With these observations, both the writ petitions are disposed of, so also all other pending applications.”
5. Respondent No.1 thereafter issued notification dated 27.06.2008 incorporating amendments in Annexure -III of Office Memorandum dated 07.01.2003 and included products with excise classifications 4802.90 and 4804.90 in the negative list under the heads “Others”. In this background, petitioner has assailed the notification dated 27.06.2008 by way of instant petition.
6. In pursuance to Office Memorandum dated 07.01.2003, respondent No.1 had issued Notification dated 08.01.2003 and thereby floated a scheme of central grant or subsidy for industrial units in the States of Uttaranchal and Himachal Pradesh. The scheme was made applicable for a period of 10 years to all industrial units in the growth centers approved for Uttaranchal and Himachal Pradesh and also to the new industrial units or industrial units with substantial expansion in growth centers or industrial infrastructure development centers or industrial estates set up by States of Uttaranchal and Himachal Pradesh and to new industrial Units or existing units on their substantial expansion in the specified thrust and centers located outside these growth centers and other identified locations. The eligible industries could
