New industrial unit setup in a non-industrial area, but where the Khasra No. is specified in General Exemption No.51 is entitled to exemption under Notification No.50/2003, dated 10.06.2003.

JUDGMENT :

S.K. Mishra, J.

By filing this writ petition, the petitioner, which a partnership firm, has prayed for issuance of a writ of certiorari quashing the order of the respondent No.2, i.e. the Deputy Commissioner, Customs & Central Excise, E-Block, Nehru Colony, Dehradun, i.e. Annexure No.X, dated 16.03.2005, whereby the petitioner was directed to start paying the Central Excise duty on future clearances and also imposing the Central Excise Duty on past clearances notified under Notification 50/2003. The petitioner has also prayed for issuance of writ of certiorari quashing the opinion of the respondent No.3 (Annexure No.IX) in expressing to the respondent No.2, his opinion on extension of benefit of exemption to new industrial units established in the category “industrial activities in non-industrial areas”. The petitioner has further prayed for issuance of a writ of mandamus directing the respondent No.3 to allow the benefit of exemption on the strength of Central Excise Notification 50/2003.

2. The Government of India, Ministry of Commerce & Industry (Department of Industrial Policy & Promotion), issued a new industrial policy dated 07.01.2003, providing the fiscal incentives to new Industrial Units and to existing units on their substantial expansion. The policy provided for new industrial units and existing industrial units on their substantial expansion which are set up in Growth Centres, Industrial Infrastructure Development Centres, Industrial Estates etc., as stipulated in Annexure-I and other areas as notified from time to time by the Central Government are entitled to 100% outright excise duty exemption for a period of ten years from the date of commencement of commercial production. Annexure-I to the policy provides the location in the Tehsil in the State of Uttarakhand where a new industrial unit or an existing industrial unit was required to be established in order to claim exemption. In the Original List issued by the notification, “other areas as notified from time to time” was not included. However, as per the General Exemption No.51 (i.e. starting from Page No.35 of the brief), Sl. No.9 at Page No.39 of the brief provides for Turner Road, Clement-town, Khasra Nos.610 and 625 in Rishikesh, District Dehradun.

3. It is not disputed at this stage that Khasra Nos.610 and 624 are the relevant Khasra Nos. on which new industrial units of the petitioner stand. Therefore, it was argued by the learned counsel for the petitioner that the case of the present petitioner is covered by a Full Bench Judgment of this Court in the case of “M/s Om Ispat vs. Secretary, Industrial Department, Government of Uttarakand, Dehradun and others, Writ Petition (M/S) No.163 of 2009”, dated 04.08.2011. Therefore, it is prayed that since the matter is covered by a Full Bench Judge of this Court, there is no impediment in issuing a writ of certiorari and mandamus, as prayed by the petitioner in the writ petition.

4. Mr. Shobhit Saharia, the learned counsel for the respondent No.1, Mr. Vipul Sharma, the learned counsel for the respondent No.3, and Mr. Hari Mohan Bhatia, the learned counsel for the respondent No.4, would argue that the petitioner’s case does not come under the notification 50/2003, and it cannot also take advantage of the notification No.49/2003 dated 10.06.2003, as it is not a thrust industry.

5. We have clearly examined the pleadings raised by the learned counsel for the respondents, and we give much emphasis on the counter-affidavit of the Deputy Commissioner, Central Excise, Dehradun.

6. From the pleadings raised, it is appropriate to record certain pleas taken by them, as we are of the opinion that the arguments raised by the learned counsel for the respondent Nos.2 and 4 are going beyond pleadings they have raised.

7. In Paragraph No.4 of the counter-affidavit, it is contended that the petitioner is a new unit which has commenced commercial production after 07.01.2003, but the Khasra Nos. of the said unit are under the cat