AI Drafter 
TaxTMI 
TaxTMI 
2015 (8) TMI 1481
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....g the respondents to include the Khasra No. 115-M, 24-Aa, 41-M, 42-M, 31, 39, 40, 45-M, 149-Da, 161-B, 25-B, 161-M total area 1.127 hectares of village Shivlalpur, Tehsil, Kashipur Ramnagar, District Nainital in the No. 50, dated 10-6-2003 issued for the units carrying on the industrial activities in non-industrial areas for availing all the fiscal benefits as have been notified in the Government Notification No. 1 (10)/2001-NER, dated 7-1-2003 and Notification No. 49/2003, dated 10-6-2003 and Notification No. 50/2003, dated 10-6-2003. (III) Issue a writ, order or direction in the nature of mandamus commanding the respondents to grant the excise exemption to the petitioner in pursuance to the Notification No. 01(10)/2001-NER, dated 7-1-2003 read with the Notification No. 50/2003, dated 10-6-2003." 3. Writ Petition (MB) No. 2 of 2015 is also a writ petition filed by the very same petitioner and it was, originally, numbered as Writ Petition (MS) No. 307 of 2013. It was re-numbered as Writ Petition (MB) No. 2 of 2015, obviously, after the reference made to the Division Bench by the Learned Single Judge. The prayers sought in the said writ petition are as follows....
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....mpt goods specified in the Schedule appended to the Notification and cleared from a unit in the State of Uttarakhand for a period of 10 years. Industrial units, which are already in existence and which had undertaken substantial expansion by way of increase in their installed capacity by not less than 25 per cent on or after the 7th day of January, 2003, were also entitled to the exemption. Petitioner wrote to the Central Excise Department vide letter dated 27-11-2003 for availing the benefit of exemption in the capacity as existing unit. The Excise Department wrote letter dated 26-6-2003 (Annexure No. 7) to the petitioner. It reads as follows : "CENTRAL EXCISE RANGE-II, KASHIPUR C. No. 20-CE/KPR-II/Exemption/03/207    Dated 26-6-2003 To, M/s Parvatiya Plywood (P) Ltd., Ram Nagar, District Nainital. Dear Sir, Subject :- Exemption provided to the Industries in the State of Uttaranchal as per Notification Nos. 49/2003 and 50/2003, dated 10-6-2003 - Reg. The Govt. of India vide the aforesaid Notifications has granted exemption from the Central Excise duty to the Industries of Uttaranchal subject to the fulfilment of the condit....
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....R GUDIA COMPLEX, BAZPUR ROAD, KASHIPUR. C. No. 20-CE/KPR-II/Parvatiya/Exemp./09/1014  Dated : 9-12-2009 To, M/s. Parvatiya Plywood Pvt. Ltd. Post Box No. 3. Vill-Shivlalpur, P.O. Ramnagar, District-Nainital (Uttarakhand). Dear Sirs, Subject : Availment of exemption under notification No. 49/2003- C.E., dated 10-6-2003-C/Reg. Please refer to your declaration dated 1-12-2009 addressed to the Assistant Commissioner, Central Excise, Division, Haldwani, a copy of which received in the Range Office on 3-12-2009, regarding exercise of option to avail of exemption from payment of Central Excise duty under notification No. 49/2003-C.E., dated 10-3-2003. In this context, you are requested to submit the self attested copies of the following documents in duplicate for scrutiny of your case in respect of availment of exemption under notification No. 49/2003-C.E., dated 10-3-2003 :- 1. Chartered Engineer Certificate of substantial expansion by way of increase in installed capacity by not less than 25% as per requirement of the said notification. 2. Balance She....
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....003-C.E., dated 10-6-2003. Sir, We are in receipt of your letter dated 30-12-2009 asking us to clarify the reasons for availing the exemption under Notification No. 49/2003-C.E., dated 10-6-2003 (hereinafter referred to as the "Notification"). In this regard, we wish to clarify as under :- 1. We are proposing to avail the exemption provided under the Notification No. 49/2003-C.E. The exemption provided in this Notification is for the new unit set up or got substantial expansion in the State of Uttarakhand, which manufacture the goods specified in the Schedule annexed in this Notification. 2. We wish to bring to your notice that both, the Notification No. 49/2003-C.E., dated 10-6-2003 and Notification No. 50/2003-C.E., dated 10-6-2003 have been issued so as to promote industrial development in the State of Uttarakhand and Himachal Pradesh under the Industrial Policy 2003. The Industrial Policy seeks to promote forest based industries and particularly States that there is excellent potential for the development of forest resources based industries in the State. The policy further state that it seeks t....
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....hed goods manufactured by us. 5. In view of the above and keeping in view that the Notification No. 49/2003 is also enacted to give effect to the intention of the industrial policy, the goods manufactured by us are covered under Sl. No. 18 of the Notification and hence we are eligible to claim exemption under the Notification No. 49/2003 also irrespective of my right to claim the exemption under Notification No. 50/2003. Therefore, the present application has been filed for claiming exemption under Notification No. 49/2003. Thanking You, Yours Faithfully Dated 27-1-2010   Place : Ramnagar         For Parvatiya Plywood Pvt. Ltd.              (Managing Director) Enclosed : Copy of State Industrial Policy of Uttaranchal 2003 Copy To : - The Superintendent      Central Excise,      Range-II, Kashipur." v. Petitioner has also produced letter....
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....ier writ petition, namely, Writ Petition (MS) No. 162 of 2009 : "The facts of this case are almost identical to those dealt with by us in Writ Petition (M/B) No. 628 of 2005, except that the industry is not situated in an industrial estate, but is situated in a non-industrial but notified area. However, the similarity of the facts is non-mentioning of name of the units and Khasra Numbers in Annexure-TT to the Notification. Accordingly, fate of the present writ petitioner would be similar to that of the writ petitioner in Writ Petition (M/B) No. 628 of 2005. We accordingly dispose of this writ petition in the light of our judgment rendered in Writ Petition (M/B) No. 628 of 2005. 2. Accordingly, the petitioner shall be informed of the outcome of the representation made by it within six weeks from the date of service of a copy of this order upon Revenue Secretary, Government of India. We make it absolutely clear that although there are pleadings to the effect that the petitioner has made substantial expansion in terms of the policy in question, but we have not gone into that aspect of the matter." viii. It is necessary to refer to the judgment dated 21-12-2010 pass....
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....n, instead, particulars of the ineligible industries had been furnished. When the words "substantial expansion" was used, no attempt was made to define the same in the policy. The policy directed, amongst others, the Revenue Department to amend Acts/Rules/Notifications, etc. and to issue necessary instructions for giving effect to the decision contained in the policy. The question, therefore, is whether an existing industrial unit, situated in an industrial estate located in Annexure-I to the policy, could ask for the benefits under the said policy. In order to ask for the benefits under the policy, the unit concerned was required to show that it has made substantial expansion. Since what would be substantial expansion had not been indicated in the policy, there would always be dispute whether the unit concerned has discharged its obligations under the policy in order to take advantage or benefits thereunder. In substance, therefore, the conclusion would be that the policy dated 7th January 2003, in so far as existing industrial units are concerned, was not conclusive. The same would become conclusive and, accordingly, would become enforceable, only when further steps have been tak....
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....resentation. It appears to be the contention of the petitioner that it did make a representation armed with a recommendation of the State Government and thereafter on 6th June, 2005, it was informed by the State Government that its grievances have been redressed by a notification published on 19th May, 2005. It is the contention of the petitioner that while looking at the notification dated 19th May, 2005, it transpired that thereby notification dated 10th June, 2003 was amended. While, however, amending the said notification dated 10th June, 2003, Annexure-II to the notification dated 10th June, 2003 was retained, showing industrial estates situated at Khasra numbers, Tehsils, districts and the State, in which if an industry is in existence, on substantial expansion thereof, or a new industry will be entitled to the benefit of the said policy, but at the same time a new annexure, being Annexure-III, was added to the Notification dated 10th June, 2003 giving similar such particulars of the industrial estates, where only on setting up of new industries, benefit of the policy would be available. It was contended that in Annexure-III, the Khasra numbers, pertaining to the industry of ....
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....d, would not do. It would require to be an existing industrial unit situated in Jashodharpur industrial estate on those Khasra numbers, in the Tehsil of Kotdwar, in the district of Pauri Garhwal and in the State of Uttarakhand. The existing industrial unit of the petitioner being not there, the petitioner, we do not think, could act to its detriment for the purpose of taking advantage of the policy in question. 4. Assuming, as has been canvassed before us, that the State of Uttarakhand at the time of furnishing particulars to denote the subject industrial estates, by mistake omitted to include Khasra Nos. 60(d) and 61 and later on realizing the said mistake, wanted to incorporate the same in the notification dated 10th June, 2003, but the fact remains that the request of the State Government has not been acceded to by the Central Government and, accordingly, the same has not been incorporated in Annexure-II to the notification dated 10th June, 2003. It is not the contention of the Central Government that it made a mistake. As would be evident from the judgment of this Court dated 3rd March, 2005, the Central Government, though may have had conceded that there had been mista....
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.... we are of the view that the petitioner was entitled to know from the Central Government of the result of the consideration by the Central Government of the representation of the petitioner made pursuant to the said order of this Court and the same, having not yet been received, we ask the Central Government to make the same available to the petitioner within a period of six weeks from the date of service of a copy of this order upon Revenue Secretary, Government of India. We make it absolutely clear that, although there are pleadings to the effect that the petitioner has made substantial expansion in terms of the policy in question, but we have not gone into that aspect of the matter." ix. Thereafter, it appears that, vide order dated 5th July, 2011 (Annexure No. 23), which is impugned as prayer No. 1, petitioner was communicated the reasons as to why the petitioner was not given the benefit of the notification. It reads as follows : "F. No. 336/08/2011-TRU Government of India Ministry of Finance Department of Revenue Tax Research Unit Room No. 146-1, North Block New Delhi dated 5th July, 201....
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...., Learned Counsel appearing on behalf of the Excise Department/respondent No. 5; Mr. H.M. Bhatia, Learned Counsel appearing on behalf of respondent No. 2; and Mr. Vipul Sharma, Learned Counsel appearing on behalf of respondent No. 4. 8. This case was, originally, listed before the Learned Single Judge as per the roster. The Learned Single Judge passed the following order dated 24-3-2015, referring the matter to the Division Bench : "Mr. R.K. Raizada, Sr. Advocate, assisted by Mr. Jitendra Chaudhary, Advocate, for the petitioner. Mr. Rakesh Thapliyal, Assistant Solicitor General, for the Union of India/respondent No. 1. Mr. H.M. Bhatia, Advocate, for the respondent No. 2. Mr. Vipul Sharma, Advocate, for the respondent No. 4. Mr. Shobhit Saharia, Advocate, for the respondent No. 5. Though the arguments of the Learned Sr. Counsel for the petitioner have been heard by this Court at great extent nay the submissions have been made on behalf of few of the respondents, but meanwhile an application has been moved by respondents No. 1, 2 and 5 with the prayer that the matter should be referred to the Division Bench of this Court for deciding the question of law as m....
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.... one of the cases, it was merely stated "adjourned under Section 3 of the Kerala High Court Act for being heard by a Bench". In another case, it was stated "in view of the important question involved in these writ petitions, they are adjourned". In another case, it was noted that "it would be just and proper that the petition be heard by a bench". Section 3 of the Kerala High Court Act provided for the powers of a Single Judge. Section 3 empowered the Single Judge to adjourn a case so that it may be heard and determined by a Bench of two Judges. In the majority judgment, the Court has summed-up its conclusions. The Court took the view that an order of referring the case to the Division Bench is a judicial order and, though it is a discretionary order, there should be reasons. It is apposite to refer to para 20 of the said judgment as under : "20. In view of the above, it is contended before us that if an adjournment is a judicial order, it must contain reasons. There are some orders of reference where the only order is "adjourned to a Division Bench". There may be cases where there is a conflict of two or more decisions of single Judges of this Court with no decision of the....
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....inks fit". The words "if he thinks fit" cannot, however, mean that it will be open to the Learned Single Judge to refer the matter without there being some substantial reasons. Drawing support from what the Kerala High Court has held in para 20 as extracted above, we would also take the view that, unless there is a question of law of public importance or a new legislation is being challenged and the Single Judge feels that the matter is of such importance that it should be dealt with authoritatively by a Bench or there is some other weighty reasons, a reference would be unjustified. It would not be appropriate to catalogue an exhaustive list of situations. It may not be proper for a Single Judge to mechanically pass order, whether it is at the request of the parties or even suo motu, to refer the matter. A Single Judge is expected to deal with questions of fact and questions of law. If he deals with questions of fact and law and if he renders a judgment thereon, in cases provided by Rule 5 of Chapter VIII of the High Court Rules, an intra-court appeal may be maintainable. This is also a very precious right vouchsafed for the litigant. This aspect must also be borne in mind when the....
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....duction. (II) All New industries in the notified location would be eligible for capital investment subsidy @ 15% of their investment in plant and machinery, subject to a ceiling of Rs. 30 lakh. The existing units will also be entitled to this subsidy on their substantial expansion, as defined. (III) Thrust Sector Industries as mentioned in Annexure-II are entitled to similar concessions as mentioned in para 3(1) & (II) above in the entire State of Uttaranchal and Himachal Pradesh without any area restrictions." 17. Clause 3.5 provides that the Nodal Agency for routing the subsidies/incentives under various schemes under this policy will be notified separately. In clause 4, the Government reserved the right to modify any part of the policy in the interest of public. Thereafter, it is necessary to notice that, under Annexure-I, it deals with locations identified in the following Tehsil of the State of Uttaranchal for excise exemption under the new industrial policy for the State of Uttaranchal and the State of Himachal Pradesh. Under the State of Uttaranchal, in the second column against the district Nainital, we find that Ram Nagar is also....
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....tion primarily. This Notification is, essentially, an area-based exemption notification. That is to say, goods, which are cleared from the units, which are located in specified locations, alone, are provided with the exemption. In regard to District Nainital, Ram Nagar, where the petitioner's unit, admittedly, is located, comes under "industrial activity in non-industrial area (with their expansion)". We may only notice the respective columns under the caption "industrial activity in non-industrial area". Under the same, it is to be noted that Serial Nos. 6, 7 & 8 have been referred to us by the Learned Senior Counsel for the petitioner to point out that they all fall in Ram Nagar. Reference is made to Northern Plywood, Arora Plywood and New India Match Co. and General Timber Product. It is the case of the petitioner that the petitioner's unit also is a plywood unit; it is located in Ram Nagar; and it is located quite close to these units; but, what is conspicuous by its absence is its inclusion in khasra numbers and the unit of the petitioner in the said Notification under the heading "industrial activity in non-industrial area (with their expansion)". It is pointed out that Seria....
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....p; Existing Industrial Estate B. Expansion of Existing Industrial Estate C. Existing Industrial Activity in non-industrial area which could not be sent earlier D. Proposed Industrial Estate where presently no industry exists E. Industrial Area proposed to be set up in Joint Sector among State Industrial Development Corporation and Private Promoter. In light of the above, you are requested to kindly issue the notification for the enclosed list of Khasra numbers. Thanking you. Encl : As above                    Yours faithfully, Sd/- (Sanjeev Chopra) Shri S. Jagadeesan, I.A.S. Joint Secretary, Ministry of Industry & Commerce, Udyog Bhawan, New Delhi- 110011" 22. Thereafter, the matter was again reiterated by communication dated 20-9-2004 (Annexure No. 24). It reads as follows : "To, Shri S. Jagadeesan, IAS Joint Secretary, Ministry of Commerce & Industry Udyog Bhawan, New Delhi. Sub....
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.... auspices of the Secretary to the Prime Minister in February, 2005, as per which, it had taken certain decisions. These decisions were not brought to the notice of the Court, when it decided the earlier writ petition. In other words, it is submitted that the case of the petitioner was reduced to a fait accompli after having suppressed these documents from the Court, as the list was already prepared and, therefore, there was fraud and misrepresentation, as a result of which, alone, this Court was persuaded to pass the order, which it passed, which we have already referred to. The Learned Senior Counsel for the petitioner would rely on the following decisions in regard to the contention that fraud would deprive the earlier judgment of its validity and force : (i) A.V. Papayya Sastry and Others v. Govt. of A.P. & Others, reported in (2007) 4 SCC 221. (ii) Deepa Gourang Murdeshwar Katre v. Principal, VAV College of Arts & Others, reported in (2007) 14 SCC 108. (iii) M/s. Katwe Jaggery Traders, Hubli and etc. v. State of Karnataka and Others, reported in AIR 1991 Karnataka 63. 25. The Learned Senior Counsel for....
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....Court. The following is produced as the summary record of the meeting on Concessional Industrial Package to the State of Uttaranchal held in the office of Principal Secretary to the Prime Minister : "Subject : Summary record of the meeting on Concessional Industrial Package to the State of Uttaranchal held in the office of Principal Secretary to P.M., PMO, South Block, on 4.2.2005 at 2.30 p.m. The list of participants are as under :- 1. Shri R.S. Tolia, Chief Secretary, Govt., of Uttaranchal 2. Smt. Vinita Kumar, Resident Commissioner, Government of Uttaranchal 3. Shri Sanjeev Chopra, Secretary (Industrial Development), Govt., of Uttaranchal 4. Shri Alok Kumar, MD, SIDCUL, 5. Shri A.K. Singh, Chairman, CBEC, Ministry of Finance, 6. Shri Gautam Ray, JS (Revenue), Ministry of Finance, 7. Shri Sanjay Mitra, JS to PM The Principal Secretary to PM pointed out that the implementati....
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....;              Industrial Development Additional Secretary               Govt., of Uttaranchal Dehradun No. 47/PS/2005 Date : 15th February, 2005 Kindly refer to Prime Minister's Office letter PMO U.O. No. 670/77/c/5/2005 ESI, dated 10-2-2005. Further to our discussions, please find enclosed the list of Khasra nos., which need to be notified afresh. The list is being submitted in two parts. (i) This is a list comprising of Khasra nos. of proposed industrial estates/areas/regions. (ii) This consists of list which require minor corrections of Khasra Nos. which were erroneously notified due to typographical errors. It is certified that the proposed amendment to the notification will not result in a net increase in the area under notification. It is further certified that the area proposed for denotification has been examined and no industry is being setup in those areas, whose interests are likely to be adversely affected. As desi....
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....would submit that it is noteworthy that the petitioner did not approach the Court prior to the publication of the amended Notification dated 19-5-2005 and he approached the Court only on 26-5-2005 and the matter was finally disposed of by this Court by closing it and only granting benefit of communication of the reasons on the representation. 31. Mr. H.M. Bhatia, Learned Counsel appearing for respondent No. 2, would, apart from the above submissions, point out that clearly the writ petition is to be dismissed as being barred by res judicata and, in this connection, he drew our attention to the judgment of the Hon'ble Apex Court in the case of State of Tamil Nadu & Others v. Amala Annai Higher Secondary School, reported in (2009) 9 SCC 386. 32. Mr. R.K. Raizada, Learned Senior Counsel for the petitioner, in reply, would submit that the matter was suppressed from this Court. The decision of the committee taken in February, 2005 was suppressed. He would also submit that it is not permissible to make the date 15-2-2005, mentioned in the Minutes within which date the Government was to give the list of eligible persons, as sacrosanct. He would try to establish this point ....
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....erefore, he would submit that it is not open to the Government to indicate helplessness and to refuse to extend the benefits of the concessions to the petitioner, which are otherwise available in law. 34. On this submission being made, Mr. Shobhit Saharia brought to our notice a communication dated 21-4-2005 issued by the very same officer, who, as submitted by Mr. Vipul Sharma, Learned Counsel appearing for SIDCUL, incidentally, was occupying both the posts as Managing Director, SIDCUL (Nodal Agency) and also Secretary in the Industrial Department. We extract the same : "Sanjeev Chopra Secretary              Government of Uttaranchal Dehradun No. 20/PS/2005 Date : 21 April, 2005 Dear Alok, Sub : Implementation of decisions taken in the meeting at PMO on February 4, 2005. 1. Please refer to your letter No. F. No. 354/122/2002-TRU, dated 12th April, 2005 and earlier correspondence on the captioned subject. I would like to thank you for the keen interest taken by the TRU to solve the issue. 2.&emsp....
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....hat the decision on the representation be made known to the petitioner therein. The earlier writ petition filed by the petitioner, as we have already noticed, was also disposed of on the same lines. The effect of the same would be that the prayer for inclusion of the khasra numbers of the petitioner must be treated as having been turned down. A relief if it is not granted or if the judgment is silent regarding a particular relief; it is, both, in accordance with the principle of res judicata enumerated in Section 11 of the Code of Civil Procedure and also in accordance with general principle of res judicata, which, undoubtedly, applies to writ petitions also; it must be taken to have been impliedly refused and the bar of res judicata applies. In this case, the reasoning given by the Court would leave us in no doubt that the Court was not inclined to grant the relief as sought for. In fact, the Court had disposed of the writ petition in terms of the earlier judgment, wherein the Court had closed the matter. 38. No doubt, petitioner has a case that the case of the petitioner in the writ petition should have been dealt with in terms of another judgment passed by another Divisi....
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....d it difficult to accept that there can be any case based on the principle of promissory estoppel. It may be true that the officials of the Excise Department wrote to the petitioner in the manner they did. Mr. Shobhit Saharia, Learned Counsel for the Excise Department, would, in fact, question the competence of the officials, like the Superintendent, Assistant Commissioner, etc. to give a promise, which would bind the Government. It is settled law that a promise, to be binding and to become enforceable under the doctrine of promissory estoppel, must be made by a competent person. Even going by the tenor of the letters, it is difficult for us to appreciate the case of promissory estoppel. In this context, we must refer to the representation, which was written by the petitioner in 2010, which we have already extracted. Therein, we notice that the petitioner was, actually, claiming specifically the benefit of Notification No. 49/2003. When it comes to Notification No. 50/2003, what the petitioner itself would say is that the Notification does not include the petitioner's khasra numbers and that the State has recommended the case of the petitioner. It could not have been the understand....
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....aling with the concept of fraud as vitiating the judgments despite the same being rendered right up to the Apex Court's dismissing the Special Leave Petition. The High Court, in a later round, was persuaded to notice that the earlier judgment was obtained without disclosing a very material fact and the recall application was allowed. 42. In similar way is the judgment in AIR 1991 Karnataka 63. That was a case, where petitions were filed seeking to challenge a notification, which, under law, should have been issued in the Kannada language. In the earlier round, the Government told the Court that it was, in fact, brought out in Kannada and the Court upheld the notification. In another round of litigation by what can be described as another group of petitioners, on which basis itself, it will be noticed that the earlier judgment could not become res judicata; the Court took the view that the conduct of the Government in misleading the Court, inasmuch as, it was held out that the notification was brought out in Kannada when it was not brought out in Kannada, amounted to playing fraud on the Court. 43. The judgment in (2007) 14 SCC 108 appears to be on similar lines. The....
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....ded in terms of the decision, which was taken by the Central Government and the State Government together. In other words, the case of the petitioner, apparently, did not fall within the parameters evolved by the authorities. At this juncture, it is noteworthy to notice that a person cannot get a right for an exemption, except when it flows from the words used by the framer of the notification. Admittedly, petitioner did not fall within the terms of the notification. Without inclusion of the khasra numbers, petitioner had no legal right. Its khasra numbers were not included in the final recommendation of the State Government. Therefore, in such circumstances, not much would have turned on the information being withheld, even if we proceed on the basis that there was carelessness in the matter on the part of the respondents in not producing it. 45. Reliance on the decision in State of Bihar & Others v. Kalyanpur Cement Limited, reported in (2010) 3 SCC 274 by the petitioner is also without any basis in regard to the facts. That was a case, where the State Government, in fact, had been promising that the petitioner will be getting the benefit of the exemption notification. Th....