The main legal point established in the judgment is that the petitioner was not entitled to the benefit of exemption from payment of additional toll under the Industrial Policy, 2004 or SRO 22 of 2004.

JUDGMENT :

(Sanjeev Kumar, J.)

1. The petitioner is an industrial unit registered with the Department of Industries and Commerce. In the year 2005, the Director, Industries and Commerce, J&K, Jammu vide order No.85-Acctts of 2005 dated 16th May, 2005 declared the petitioner-Unit as “prestigious unit” for availing all the benefits envisaged in the Industrial Policy issued by the Government in the year 2004. The petitioner-Unit was established and permanently registered in the year 1966. Ever since its establishment, the petitioner-Unit has gone for substantial expansion from time to time. The petitioner obtained the requisite permission and approval of the competent authority for expansion of its existing spinning mill from 102992 spindles to 128336 spindles by making an investment of Rs.108.00 Crores in the year 2006.

2. As is claimed, the petitioner undertook substantial expansion of the existing spinning mill and, therefore, became eligible for exemption from payment of additional toll under the New Industrial Policy, 2004 and package of incentives for development of industries in Jammu & Kashmir issued by respondent No.1 vide Government Order No.21-Ind of 2004 dated 27.01.2004 read with SRO 22 of 2004 dated 31.01.2004 issued by the Government in exercise of the powers conferred by Section 5 of the Jammu and Kashmir Levy of Tolls Act, Samvat 1995 [“the Act”]. When the claim of the petitioner for exemption from payment of additional toll on the plant and machinery imported by it for undertaking substantial expansion of the mill was not accepted, the petitioner filed OWP No.161/2007 in this Court claiming, inter alia, a direction to the respondents to allow the toll tax exemption to the petitioner-Mill for its 9th expansion programme in terms of SRO 22 of 2004 read with Government Order No.432-I&D of 1998 dated 02.12.1998. The writ petition was disposed of by this Court vide order and judgment dated 12.02.2013 and a direction was issued to the respondents to examine the case of the petitioner in light of the request already made by the petitioner and make a decision while keeping in view order dated 5th March, 2007. On review petition moved by the petitioner, the order aforesaid was reviewed to the extent of substituting order dated 5th March, 2007 by order dated 15th May, 2010, which was passed at the motion hearing stage by the Court in OWP No.161/2007.

3. In compliance to the judgment passed by this Court in OWP No.161/2007 (supra), Deputy Excise Commissioner, Toll Post Lakhanpur considered the entire matter and vide order No.1719/A/LKP dated 03.04.2013 rejected the claim of the petitioner for exemption of toll tax payable on the components, plant and machinery, building material and other equipments procured from outside the State in connection with substantial expansion programme undertaken by the petitioner. The Deputy Excise Commissioner Toll Post Lakhanpur did not find the petitioner entitled to the tax exemption in view of the provisions of SRO 22 of 2004 dated 31.01.2004. It is this consideration order, which is primarily in question in this petition.

3.1. The impugned order has been assailed by the petitioner primarily on the following grounds:-

i) That the order impugned is in violation of the interim order passed by this Court on 15th May, 2010 in OWP No.161/2007 and is contrary to the provisions of SRO 22 of 2004 dated 31.01.2004.

ii) That the impugned order of consideration is non-speaking and clearly an outcome of total non-application of mind by the authority. It is submitted that while considering the provisions of SRO 22 of 2004 dated 31.01.2004, the Deputy Excise Commissioner ignored to take note of the New Industrial Policy, 2004.

iii) That the Deputy Excise Commissioner also did not appreciate that the petitioner-Unit was declared as prestigious unit by the competent authority and, therefore, was entitled to toll exemption on the items like plant and machinery, construction material etc imported from outsi